Massey v. Chauhan, CA 05-1055 (AR 4/5/2006)
| Decision Date | 05 April 2006 |
| Docket Number | CA 05-1055 |
| Parties | Roberta MASSEY, Appellant v. Mufiz CHAUHAN, M.D., Appellee |
| Court | Arkansas Supreme Court |
This is an appeal in a medical malpractice case from an order granting summary judgment in favor of appellee, Dr. Mufiz Chauhan. Robertta Massey sued appellee, her radiologist, alleging that he failed to recognize that her mammograms indicated that she had breast cancer. Appellant argues that the trial court erred in 1) striking an affidavit of her expert witness; 2) determining that she failed to present expert testimony regarding the standard of care governing radiologists and concerning proximate cause; and 3) by not allowing her to conduct further discovery. We affirm the summary judgment order.
Appellant underwent mammograms in 1996, 1997, 1999, and 2000, which were read by appellee, a radiologist who practiced in Newport, Arkansas. In 2001, appellant had a screening mammogram and a diagnostic mammogram performed at the Baptist Breast Center. Each of these mammograms revealed two masses in her right breast, one measuring one centimeter in diameter, the other measuring fifteen millimeters in diameter. The Baptist reports indicated that these masses had increased in size from appellant's prior mammograms, that they were suspicious for malignancy, and that they warranted further evaluation. Appellant thereafter saw Dr. Rex Luttrell, was ultimately diagnosed with breast cancer in her right breast and two lymph nodes, and underwent a right-breast mastectomy. She had been cancer-free for approximately three years when she filed this litigation against appellee on April 30, 2004, alleging medical malpractice, and asserting that appellee failed to adequately assess, evaluate, communicate, and diagnose her in accordance with the accepted standards of practice governing radiologists.1 She also asserted that appellee's negligence was the proximate cause of her injuries, which she cited as pain, suffering, mental anguish, scarring and disfigurement, humiliation, fright, emotional distress, and medical expenses.
On October 25, 2004, appellant's expert witness, Dr. Merrick Ross, was deposed. Dr. Ross is a surgical oncologist who practices in Houston, Texas. He testified that he is not a radiologist and that he has no privileges to interpret any type of radiographic films of mammograms. He further testified, when questioned, as follows:
...
Based on Dr. Ross's testimony, on November 23, 2004, appellee requested summary judgment, stating that appellant's expert witness failed to establish 1) the applicable standard of care, 2) the failure to meet the standard of care, and 3) that the failure to meet the standard of care was the proximate cause of damages that would not have otherwise occurred.2
In appellant's response to appellee's motion for summary judgment, she attached the mammogram reports that appellee interpreted as normal from 1996 through 2000 (excluding 1998), as well as his correspondence to her stating that her mammograms for those years were normal. She also attached the mammograms performed by Baptist Breast Center. Appellant further attached to her response a report from Dr. Luttrell, who noted that she reported that her breast abnormalities had been present for the "last couple of years." He further noted that her mammogram revealed "an abnormality in the right breast with two suspicious-looking lesions."
Additionally, appellant asserted in her response that Dr. Ross, as a surgical oncologist, is qualified to read mammograms and to give opinions as an expert witness. To her response, appellant attached a full copy of Dr. Ross's deposition and his written report. She noted that Dr. Ross opined in his deposition that his review of the mammograms indicated that the lesions "are clearly there in 2000 and definitely in `99 and probably in `97."
Appellant also indicated in her response that she had retained Dr. Julius Danziger, a radiologist, who had not yet been deposed. She attached Dr. Danziger's curriculum vitae and a letter from Dr. Danziger addressed to her attorney, in which the doctor opined that the two areas of breast density should have been further evaluated to exclude carcinoma, since there had been a significant change when compared to her 1996 mammogram. She maintained that had she been properly and timely diagnosed, she would have opted for a lumpectomy instead of mastectomy and chemotherapy, which she asserted was made necessary by appellee's failure to properly read her mammogram. She stated that the delay resulted in a worse prognosis for survival and a greater chance of the cancer returning. Appellant further asserted that she was damaged by the pain she had to endure as the result of chemotherapy, which was necessitated by the delayed breast-cancer diagnosis.
Finally, appellant noted that none of her treating physicians had been deposed but that she had retained the services of Dr. Danziger and an oncologist. Appellant asserted that "From the attached [doctor's] reports the court can see the importance of their testimony." She requested that the court allow her the opportunity to supplement her response to take additional depositions. Despite this request, however, appellant never deposed any other doctor and never obtained a ruling on her request for more time to complete discovery.
The hearing on appellee's motion was scheduled for February 23, 2005. The day before the hearing, appellant filed a supplemental response to appellee's motion for summary judgment, to which she attached an affidavit from Dr. Ross in which he stated: "It is my opinion within a reasonable degree of medical probability that an earlier diagnosis in either 1999 or 2000 could have prevented the metastatic disease within the lymph nodes." Appellee filed a motion to strike the affidavit, in which he first reiterated his prior argument that appellee failed to establish the applicable standard or care of a breach thereof. He also moved to have Dr. Ross's affidavit stricken because it was untimely and because it contradicted the doctor's previous deposition testimony.
Appellant maintained in her reply that Dr. Ross was qualified to read mammograms by virtue of his position as a surgical oncologist and that her treating physician's reports indicated that the cancer was present in her breast in 1997, 1999, and 2000. She also noted Dr. Danziger's belief that her breast abnormalities should have been further investigated.
Finally, appellant noted that she had asked for additional time to complete discovery in her original response to appellee's motion for summary judgment. She specifically requested that the court consider Dr. Ross's affidavit, which she asserted did not contradict his deposition testimony because he stated in his deposition testimony that it was possible that when the abnormalities first appeared her cancer was not invasive. Appellant asked the court to consider Dr. Ross's affidavit and "if necessary" to allow her to depose the treating physicians prior to ruling on appellee's motion.
The trial court entered an order on June 30, 2005, stating that appellant failed to state a prima facie case of medical malpractice because Dr. Ross "has not and cannot offer proof on the applicable standard of care, breach of that standard, or proximate cause." The court also struck Dr. Ross's affidavit as untimely and as contradictory to his deposition testimony. Accordingly, the trial court granted appellee's motion for summary judgment.
Pursuant to Arkansas Rule of Civil Procedure 56, summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Ginsburg v. Ginsburg, 353 Ark. 816, 120 S.W.3d 567 (2003). We no longer refer to summary judgment as a drastic remedy and now simply regard it as one of the tools in a trial court's efficiency arsenal. Id. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
We hold that the trial court did not err in striking Dr. Ross's affidavit, which was untimely and contradictory; that summary judgment was proper because appellant failed to provide expert testimony regarding the applicable standard of care and proximate cause; and that the trial court did not err in not allowing appellant additional time to complete discovery.
W...
To continue reading
Request your trial