Parkerson v. Arthur

• Decision Date: 22 October 2003
• Docket Number: No. CA 02-1054.,CA 02-1054.
• Citation: 125 S.W.3d 825,83 Ark. App. 240
• Parties: Gail PARKERSON v. James ARTHUR, M.D., Allan Gocio, M.D., and Hot Springs Neurosurgery Clinic, P.A.
• Court: Arkansas Court of Appeals

125 S.W.3d 825

83 Ark. App. 240

Gail PARKERSON v. James ARTHUR, M.D., Allan Gocio, M.D., and Hot Springs Neurosurgery Clinic, P.A.

No. CA 02-1054.

Court of Appeals of Arkansas, Division III.

October 22, 2003.

Appellant, pro se.

Friday, Eldredge & Clark L.L.P., by: Jason B. Hendren, Little Rock, for appellees.

OLLY NEAL, Judge.

This is the second time that this medical-negligence action has been before this court. Following remand, the trial court granted appellees' motion for summary judgment on appellant's informed-consent and medical-battery claims. We affirm.

On March 20, 1990, appellees Dr. James Arthur and Dr. Allan Gocio performed an anterior cervical diskectomy and fusion surgery on appellant Gail Parkerson. During the surgery, appellees used an artificial block as graft material to surgically join appellant's vertebrae. The graft material used by the appellees was a product called "Orthoblock," which is a ceramic material made of a dense form of hydroxylapatite. Orthoblock, at the time of the procedure, had neither been developed by its manufacturer, Calcitek, Inc., nor approved by the Food and Drug Administration (FDA), for use in anterior cervical diskectomy procedures. Following the surgery appellant began to experience pain in her left arm and shoulder, and she was diagnosed on April 9, 1990, with postoperative cervical nerve root swelling and pain. Thereafter, appellant received pain medication prescribed by Dr. Gocio and was readmitted to St. Joseph's Regional Health Center for physical therapy and pain control.

On June 15, 1992, appellant filed a medical-negligence suit against appellees alleging that they were negligent in their March 20, 1990, surgical performance and their follow-up medical care of her during and after the surgery. The trial court granted summary judgment on all claims to appellees. This court reversed the summary judgment on appellant's informed-consent and battery claims, holding that an affidavit submitted by appellant's expert witness, Dr. Cecil Parkerson¹, was sufficient to withstand summary judgment on the battery and informed-consent claims. Parkerson v. Arthur, No. CA00-1110, 2001 WL 719055 (Ark.App. June 27, 2001). This court affirmed the summary judgment on the remainder of appellant's claims. Id.

Following remand, on February 14, 2002, appellees filed a "Renewed Motion for Summary Judgment" after learning of the death of Dr. Cecil Parkerson. In the motion, appellees asserted that they were entitled to summary judgment because appellant had not identified another expert to testify; that Dr. Cecil Parkerson's affidavit submitted in opposition to the prior motion for summary judgment was inadmissible to prove a fact at issue at trial; and that appellant could not meet her burden of proving an essential element of her case at trial. Appellant filed a motion seeking to extend the time in which to respond to appellees' motion for summary judgment but did not file a motion to compel discovery. By order filed on March 8, 2002, the trial court extended the time for appellant to respond to the motion for summary judgment until June 1, 2002. In a motion filed on June 3, 2002, appellant requested dismissal of appellees' motion for summary judgment and raised the issue of appellees' failure to answer the discovery. Appellant filed her response to the motion for summary judgment that same day. The trial court granted appellees' motion and entered its order for summary judgment on June 13, 2002.

Appellant, appearing pro se,² argues two issues on appeal (1) that the trial court erred in acting upon appellees' request for a trial setting made after this court delivered its opinion but prior to the issuance of the mandate to the trial court, and (2) that the trial court erred in granting appellees' renewed motion for summary judgment.

In her first point, appellant argues that the trial court acted without jurisdiction in acting upon appellees' request for a trial setting, which was sent to the trial judge between the time this court delivered its opinion on June 27, 2001, and the time the mandate was filed in the lower court on September 10, 2001. We affirm on this point.

It is axiomatic that this court takes jurisdiction of a matter once the record on appeal is filed with the clerk of the supreme court and retains jurisdiction until the mandate is issued to the lower court. Barclay v. Farm Credit Servs., 340 Ark. 65, 8 S.W.3d 517 (2000). Even though appellees requested the trial setting during the time between the delivery of this court's opinion and the filing of the mandate, the trial court did not actually set the trial date until November 29, 2001, after the mandate was filed with the trial court. The action of which appellant complains— the July 18, 2001, letter from the trial court's case coordinator to the trial court clerk—was in the nature of inquiring whether a courtroom would be available on two possible trial dates. Further, appellant did not make a formal objection to the setting. Timothy Brooks, an attorney whom appellant consulted about representing her, informed the court that he was considering the representation and anticipated entering an appearance. His letter requested on appellant's behalf that the trial not be set on the March 2002 dates reflected in the court's notice. His letter also made it clear that he was not entering his appearance as attorney for appellant at that time. The trial court reaffirmed the March 7-8, 2002, trial dates in a letter dated January 7, 2002. Thereafter, appellant filed a motion for continuance of the trial on February 12, 2002. On February 21, 2002, the trial court granted the motion for continuance and rescheduled the trial for October 28 through November 1, 2002. While we do not believe that appellant suffered any prejudice or that the trial court acted while it was without jurisdiction, the granting of the continuance removed any possible prejudice appellant may have suffered.

In her second point, which is divided into three subpoints, appellant argues that the trial court erred in granting summary judgment to appellees. We have ceased referring to summary judgment as a "drastic" remedy. We now regard it simply as one of the tools in a trial court's efficiency arsenal; however, we approve the granting of the motion only when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is no genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Parkerson v. Lincoln, 347 Ark. 29, 61 S.W.3d 146 (2001). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Id. On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Id.

For her first subpoint under this issue, appellant argues that summary judgment was improper because there was still discovery unanswered by appellees. Whether to grant a continuance to allow for further discovery is a matter within the discretion of the trial court. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995); Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994); Mills v. Crone, 63 Ark.App. 45, 973 S.W.2d 828 (1998). In order for this court to reverse, appellant must show that the trial court abused its discretion and that the additional discovery would have changed the outcome of the case. Alexander, supra.

Appellant has not demonstrated that the trial court abused its discretion in granting the summary judgment prior to the completion of all discovery or that additional discovery would have changed the outcome of the case. See Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). Appellant filed a motion seeking to extend the time in which to respond to appellees' motion for summary judgment but did not file a motion to compel discovery. In that motion, couched in terms of Ark. R. Civ. P. 56(f), appellant relied upon the fact that she was unrepresented and needed time to consult an attorney. It is only in her affidavit filed in support of her motion for additional time to respond that appellant states that she submitted discovery that remained unanswered. She also attached appellee Gocio's answers to the discovery, which contained objections signed by appellees' counsel. As noted earlier in this opinion, by order filed on March 8, 2002, the trial court extended the time for appellant to respond to the motion for summary judgment until June 1, 2002. In a motion filed on June 3, 2002, appellant requested dismissal of appellees' motion for summary judgment and formally raised the issue of appellees' failure to answer the discovery. Appellant filed her response to the motion for summary judgment that same day. The trial court granted the motion for summary judgment by order filed on June 13, 2002, without addressing appellant's discovery issues.

Appellant has waived this issue by failing to obtain a ruling on the issue. The burden of obtaining a ruling is on the movant, and objections and matters left unresolved in the trial court are waived and may not be relied upon on appeal. Crawford v. Lee County Sch. Dist., 64 Ark.App. 90, 983 S.W.2d 141 (1998).

For her second subpoint, appellant argues that Dr. Cecil Parkerson's affidavit can still be considered as creating a genuine issue of material fact in order to defeat the renewed motion for summary judgment. Appellees, in their renewed motion for summary judgment, alleged that, following Dr. Parkerson's death, appellant failed to designate another medical expert and that, without another expert, there was no expert medical testimony on the issue of informed consent. Appellees asserted that they were...