Quattlebaum v. McCarver

• Decision Date: 05 June 2013
• Docket Number: No. CV-12-693,CV-12-693
• Citation: 2013 Ark. App. 376
• Court: Arkansas Court of Appeals
• Parties: SUSAN QUATTLEBAUM AND DAVID QUATTLEBAUM APPELLANTS v. DR. RODNEY McCARVER, MARK BURGHART AND ARKANSAS HEALTH GROUP ANESTHESIA APPELLEES

2013 Ark. App. 376

SUSAN QUATTLEBAUM AND DAVID QUATTLEBAUM APPELLANTS v. DR. RODNEY McCARVER, MARK BURGHART AND ARKANSAS HEALTH GROUP ANESTHESIA APPELLEES

No. CV-12-693

ARKANSAS COURT OF APPEALS DIVISION I

Opinion Delivered June 5, 2013

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

THIRD DIVISION

[NO. CV-2011-1030]

HONORABLE JAY MOODY, JUDGE

AFFIRMED

PHILLIP T. WHITEAKER, Judge

Susan and David Quattlebaum appeal the order of the Pulaski County Circuit Court granting the summary-judgment motion filed by appellees Dr. Rodney McCarver, Mark Burghart, and Arkansas Health Group d/b/a Arkansas Health Group Anesthesia. We affirm.

Susan Quattlebaum underwent a medical procedure requiring epidural anesthesia in 2007. At that time, according to her complaint, she consented to allowing a student nurse-anesthetist to observe the epidural, although she did not consent to having him perform the procedure. Following the procedure, Susan developed an infection at the site of the epidural. The Quattlebaums subsequently filed suit against the appellees, alleging that they failed to properly prep and sterilize the epidural location and instruments; that they "failed to have proper protocols and procedures and/or failed to follow proper protocol and procedures toensure a safe environment and sterile environment for the epidural procedure"; and, in the event that the student placed the epidural, that Susan did not give informed consent.

The appellees filed a motion for summary judgment, arguing that the Quattlebaums failed to file an expert affidavit in support of their claim for medical injury, as is required by Arkansas Code Annotated section 16-114-209(b) (Repl. 2006). In support of their motion, the appellees attached affidavits from Dr. Brad Lindsey, an anesthesiologist from Conway, and Tom Cranford, a certified registered nurse anesthetist (CRNA) from Searcy. Both Dr. Lindsey and Cranford opined that neither Dr. McCarver nor the CRNA present at Susan's procedure was negligent as to either Susan's failure-to-sterilize claim or her informed-consent claim.

The Quattlebaums filed a response to appellees' summary-judgment motion to which they attached affidavits of their own. Those affidavits were from Pamela Chambers, a CRNA with active licenses in Texas, New Mexico, and Arizona; Lisa Wallace, a registered nurse practitioner from Arkansas; and Dr. Merrill Hardy, an anesthesiologist from Jackson, Mississippi. The affidavits all generally averred that infections like the one suffered by Susan were rare and would not occur in the absence of negligence.

The circuit court granted the appellees' motion for summary judgment, finding that the Quattlebaums' experts' affidavits failed to properly establish the standard of care required of the appellees. Specifically, regarding the failure-to-sterilize claim, the circuit court found that the "conclusory statements of familiarity" with local standards did not satisfy the locality rule found in Arkansas Code Annotated section 16-114-106(b). Moreover, the court foundthat the affidavits did not provide evidence of a breach of the requisite standard of care. Finally, the court determined that the Quattlebaums' experts did not provide evidence of proximate cause, and the Quattlebaums had not proven the elements necessary to apply the doctrine of res ipsa loquitur. As to the claim of lack of informed consent, the circuit court again found that the affidavits did not satisfy the locality rule; in addition, the court concluded that there was no evidence of proximate cause of any damages resulting from the performance of the procedures by the student nurse-anesthetist rather than by the anesthesiologist.

The Quattlebaums filed a motion for reconsideration or for new trial, which the circuit court denied. They then filed a timely notice of appeal and now argue that the circuit court erred in granting the appellees' motion for summary judgment.

Summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Hamilton v. Allen, 100 Ark. App. 240, 267 S.W.3d 627 (2007) (citing Ark. R. Civ. P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). 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. Id. (citing Mitchell v. Lincoln, 366 Ark. 592, 237 S.W.3d 455 (2006)). The appellate court determines if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered. Id. Theevidence is reviewed in the light most favorable to the party against whom the motion was filed, with all doubts and inferences resolved against the moving party. Id.

In a medical-malpractice action, the plaintiff must prove (1) the applicable standard of care, (2) that the medical provider failed to act in accordance with that standard, and (3) that such failure was a proximate cause of the plaintiff's injuries. Webb v. Bouton, 350 Ark. 254, 264, 85 S.W.3d 885, 891 (2002); Hamilton, supra. A medical-malpractice complaint is subject to a motion for summary judgment when the plaintiff fails to present expert evidence of those three elements and the defending party demonstrates that the plaintiff lacks proof on one or more of these...