Mitchell v. Lincoln

• Court: Arkansas Supreme Court
• Writing for the Court: Tom Glaze
• Citation: Mitchell v. Lincoln, 237 S.W.3d 455, 366 Ark. 592 (Ark. 2006)
• Decision Date: 22 June 2006
• Docket Number: No. 05-1369.,05-1369.
• Parties: Traci MITCHELL, Appellant, v. Dr. Lance LINCOLN, Appellee.

237 S.W.3d 455

Traci MITCHELL, Appellant, v. Dr. Lance LINCOLN, Appellee.

No. 05-1369.

Supreme Court of Arkansas.

June 22, 2006.

Law Offices of Charles Karr, P.A., by: Charles Karr and Shane Roughley, Fort Smith, AR, for appellant.

Cox, Cox & Estes, PLLC, by: Walter B. Cox and James R. Estes, Fayetteville, AR, for appellee.

TOM GLAZE, Justice.

This is an appeal from the trial court's decision to grant summary judgment in a medical-malpractice case in favor of defendant-appellee Dr. Lance Lincoln. The court of appeals reversed the trial court's decision in a 2-2-2 vote, and Dr. Lincoln petitioned this court for review. When this court grants a petition for review, we consider the appeal as though it had been originally filed in this court. Dixon v. Salvation Army, 360 Ark. 309, 201 S.W.3d 386 (2005); Sharp County Sheriff's Office v. Ozark Acres, 349 Ark. 20, 22, 75 S.W.3d 690 (2002).

The plaintiff-appellant in this case, Traci Mitchell, is the widow of Guy Mitchell, who had been diagnosed with chronic myelogenous leukemia in June of 1994. Guy was admitted to M.D. Anderson Cancer Center in Houston on August 3, 1994, and discharged on August 13, 1994; he returned to M.D. Anderson for a bone marrow transplant on September 22, 1994. On January 6, 1995, Dr. James Gajewski of M.D. Anderson sent a letter to Guy's treating physician, Dr. Lincoln, containing the following recommendation:

All blood transfusions need to be irradiated. His original blood type was A-positive, [and] his donor type is O-positive. I would recommend, if he needs a blood transfusion, to transfuse him with O-positive red cells. If he requires platelet products, at this point in time he should be transfused with B-positive platelets. All blood products should be given with a Pall filter to reduce risk of cytomegalovirus infection. An alternative would be to use CMV-negative blood products.

Guy required blood transfusions in the early months of 1995; between January 18, 2005, and March 22, 1995, Dr. Lincoln performed eleven blood transfusions. However, Dr. Lincoln failed to use O-positive red cells or B-positive platelets. Guy was readmitted to M.D. Anderson on March 24, 1995, and upon his discharge, he was admitted to the University of Arkansas for Medical Sciences and remained there until he was discharged on July 14, 1995. Guy died at his home in Flippin on July 23, 1995.

Traci Mitchell was appointed special administrator of Guy's estate on September 8, 1995. On October 29, 1996, Mitchell filed suit against Dr. Lincoln, Baxter County Regional Hospital, St. Paul Fire & Marine Insurance Company, and John Does Numbers 1-3. After the defendants moved for summary judgment, Mitchell moved for a voluntary nonsuit, which was granted on August 20, 1999.¹ Mitchell then refiled her complaint on August 17, 2000. In her complaint, Mitchell asserted that Dr. Lincoln had violated the standard of care and had been negligent in giving Guy the "wrong type of blood products as ordered and recommended by his physicians at M.D. Anderson."

Dr. Lincoln answered and moved for summary judgment, arguing that Mitchell had not produced any expert testimony regarding the standard of care in her medical-malpractice case, or any expert testimony demonstrating that Dr. Lincoln's alleged negligence was the proximate cause of Guy's death. In support of his motion for summary judgment, Dr. Lincoln attached an affidavit from Dr. Gary Markland, a physician licensed in the State of Arkansas. Dr. Markland averred that he was "familiar with the standard of care in Arkansas as it relates to the transfusion of blood and blood products to patients suffering with chronic myelogenous leukemia." In addition, Dr. Markland stated that he had reviewed Guy's medical records, and based on his review, Dr. Markland stated that it was his medical opinion, to a reasonable degree of medical certainty, that Guy was not given the "wrong type" of blood, that the transfusions that he did receive were within the applicable standard of care, and that the transfusions were not the proximate cause of Guy's death.

Mitchell responded to Dr. Lincoln's motion for summary judgment, asserting that there were genuine issues of material fact. In support of her response, Mitchell attached a copy of a letter from Dr. Gajewski to Dr. Lincoln; in that letter, Dr. Gajewski stated his recommendation, quoted above, that Guy receive O-positive red cells and B-positive platelets. Mitchell subsequently filed a "first supplement" to her response to Dr. Lincoln's motion for summary judgment, attaching a copy of a clinic note from Dr. Gajewski in which Dr. Gajewski noted that Guy had "received what we think is six units of group A red cells inappropriately in Arkansas . . . , and we have previously recommended that he receive group O [red blood cells]."

In his reply to Mitchell's response to his motion for summary judgment, Dr. Lincoln asserted that summary judgment was appropriate because Mitchell had failed to establish 1) the existence of medical negligence with expert testimony; 2) the appropriate standard of care; and 3) the existence of proximate cause. See Ark.Code Ann. § 16-114-206 (Repl.2006). In response, Mitchell filed a "second supplemental response" to the summary-judgment motion, attaching an affidavit from Dr. Barry L. Singer, a hematologist-oncologist licensed in Pennsylvania, who stated, in relevant part, the following:

I have reviewed the medical records of Guy Mitchell concerning his chronic myelogenous leukemia. The standard of care would require a primary care physician, such as Dr. Lincoln, to follow the recommendations of a specialist, such as Dr. Gajewski. Transfusing Mr. Mitchell with A-positive red cells, as was done in this case, was a violation of the standard of care. In my opinion, within a reasonable degree of medical certainty, the failure to transfuse Mr. Mitchell with O-positive red cells and B-positive platelets as a significant contributing factor in the recrudescence² of his disease and ultimate demise.

After a hearing, the trial court entered an order on October 3, 2003, granting Dr. Lincoln's motion for summary judgment. In its order, the court found that Mitchell had failed to provide expert testimony that established the standard of care, that Dr. Lincoln had breached that standard of care, and that any alleged negligence was the proximate cause of Guy's death. Specifically, the court found that Dr. Singer's affidavit did not say that he was familiar with the standard of care in Arkansas, and as such, it failed to raise an issue of fact as to whether there was negligence in this case. The court, however, retained jurisdiction of the matter to give the parties a chance to file motions for reconsideration, if such were deemed warranted.

Mitchell filed a motion for reconsideration on October 15, 2003, attaching an additional affidavit from Dr. Singer in which the doctor stated his opinion as to the standard of care for a physician in Baxter County. However, the trial court struck the additional affidavit from the record and declined to consider the new allegations contained therein, ruling that it had given leave to raise additional legal arguments, not to provide additional facts. The court then concluded once more that Mitchell had failed to provide evidence of the standard of care in Baxter County and that she had failed to meet proof with proof to rebut Dr. Markland's claim that Dr. Lincoln's alleged negligence was not the proximate cause of Guy's death.

Mitchell appealed the trial court's decision to the court of appeals, arguing that the trial court erred in finding there was no genuine issue of material fact. She did not, however, appeal the trial court's decision to strike the supplemental affidavit of Dr. Singer; therefore, we can only consider, as did the trial judge, whether Dr. Singer's first affidavit was sufficient to create a fact issue that would survive a motion for summary judgment.

A trial court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated, and that the party is entitled to judgment as a matter of law. Harris v. City of Fort Smith, 359 Ark. 355, 197 S.W.3d 461 (2004). Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Young v. Gastro-Intestinal Ctr., 361 Ark. 209, 205 S.W.3d 741 (2005). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views 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. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).

Under Arkansas law, the burden of proof for a plaintiff in a medical malpractice case is fixed by statute. See Ark.Code Ann. § 16-114-206. The statute requires that, in any action for a medical injury, expert testimony is necessary regarding the skill and learning possessed and used by medical care providers engaged in that specialty in the same or similar locality. See Young, supra; Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002). Specifically, the statute provides as follows:

(a) In any action for medical injury, when the asserted negligence does not lie within the jury's comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:

(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar...