Robbins v. Johnson

• Court: Arkansas Supreme Court
• Writing for the Court: Robert L. Brown
• Citation: Robbins v. Johnson, 367 Ark. 506, 241 S.W.3d 747 (Ark. 2006)
• Decision Date: 26 October 2006
• Docket Number: No. 06-163.,06-163.
• Parties: Brenda Faye ROBBINS and Dale Robbins, her husband, Appellants, v. Arthur JOHNSON, M.D. and Orthopaedics, P.A., d/b/a River Valley Musculoskeletal Center, Appellees.

241 S.W.3d 747

367 Ark. 506

Brenda Faye ROBBINS and Dale Robbins, her husband, Appellants, v. Arthur JOHNSON, M.D. and Orthopaedics, P.A., d/b/a River Valley Musculoskeletal Center, Appellees.

No. 06-163.

Supreme Court of Arkansas.

October 26, 2006.

Erwin L. Davis, Fayetteville, AR, for appellants.

Davis, Wright, Clark, Butt & Carithers, PLC, by: Constance G. Clark and Sidney P. Davis, Jr., Fayetteville, AR, for appellees.

ROBERT L. BROWN, Justice.

Appellants Brenda Faye Robbins and Dale Robbins, her husband, appeal from the circuit court's order dismissing their complaint against appellees Dr. Arthur Johnson, M.D. and Orthopaedics, PA., d/b/a River Valley Musculoskeletal Center. They raise one point on appeal: the negligence they alleged against Dr. Johnson in their complaint was within a jury's comprehension as a matter of general knowledge, and, thus, the circuit court erred in dismissing their complaint. We disagree, and we affirm.

The Robbinses' complaint alleged, the following facts. On March 26, 2003, Dr. Johnson performed cervical surgery in the neck of Mrs. Robbins at the Sparks Regional Medical Center in Fort Smith. The surgery performed was for the purpose of correcting a cervical disk herniation and osteophytes at the C4-5 and C5-6 levels of the spinal column. During the surgery, the complaint alleged that Dr. Johnson "negligently caused and allowed a sharp surgical instrument, a curette, to fall and plunge into her spinal cord, piercing the dura mater surrounding the spinal cord, then piercing the spinal cord itself, resulting in damage to the spinal cord and nerves" of Mrs. Robbins. The complaint continued that Dr. Johnson closed the dural defect with a single suture without consulting her or her husband and without determining the extent of the spinal cord damage.

The Robbinses further alleged in their complaint that Mrs. Robbins has and will continue to suffer physical pain and mental anguish as a result of Dr. Johnson's negligence in performing the surgery. They asserted that she suffers from numbness and weakness in her hips and limbs. She also suffers from spasms in many of her muscles, joints, ligaments, nerves, and tendons. Mr. Robbins alleged that Dr. Johnson's negligence has caused him to lose the companionship and consortium of his wife.

According to Dr. Johnson, Mrs. Robbins underwent a cervical disectomy and fusion at levels C4-5 and C5-6. Dr. Johnson wrote to his attorney:

However, during the course of the operative procedure the procedure was complicated by the fact that by using one of the curettes in trying to remove the posterior cervical osteophytes one osteophyte unexpectedly gave way. The area between the vertebral bodies was tight because of the osteophyte on inferior surface of C5 and the superior surface of C6 and in this process the osteophyte unexpectedly gave way allowing the curette to plunge forward penetrating the dura creating a small hole there and it was unclear as to whether spinal cord damage was incurred at that time.¹

While Mrs. Robbins was hospitalized after the surgery, Dr. Johnson wrote in that same letter that he did not notice any significant neurological defects and that there was no evidence of damage to the spinal cord. At a follow-up visit, Dr. Johnson continued in the letter that on June 3, 2003, Mrs. Robbins complained of intermittent problems with spasms and pain. She was referred to a physical therapist for flexibility and muscle strengthening exercises and continued to receive frequent refills of pain medication. Mrs. Robbins's next visit with Dr. Johnson was on September 30, 2003. She told him at that time that she continued to have a significant amount of pain in her neck.

On March 10, 2005, Mr. and Mrs. Robbins sent notice to Dr. Johnson and his clinic, Orthopaedics, P.A., d/b/a River Valley Musculoskeletal Center, by certified mail, informing them of their intention to file a medical-malpractice action for the injuries that resulted from the cervical surgery. This notice was sent within thirty days of the expiration of the statute of limitations and served to toll the statute for ninety days. See Ark.Code Ann. § 16-114-212(a) (Repl.2006). On June 22, 2005, within the ninety-day tolling period, Mr. and Mrs. Robbins filed their complaint against Dr. Johnson and his clinic. The complaint stated that an affidavit from an expert in the same or related field, as required by Ark.Code Ann. § 16-114-209(b) (Repl.2006), was not necessary in this case, because Mrs. Robbins's damages "will be absolutely clear and unmistakable to a layperson."

Dr. Johnson and his clinic moved to dismiss the complaint and argued that the alleged negligence against Dr. Johnson did not lie within a jury's comprehension as a matter of common knowledge, and, therefore, an affidavit from an expert was required by law to be filed with the complaint. Because the complaint was filed without the required affidavit during the ninety-day tolling period, Dr. Johnson urged that the complaint be dismissed for failure to comply with Ark.Code Ann. § 16-114-212(c)(1) (Repl.2006).

A hearing on the motion to dismiss was held. At the hearing, Dr. Johnson produced a letter for the court's review, which he had sent to his attorney on August 11, 2005, and which explained in detail what had happened during surgery. The letter was admitted into evidence, without objection by the Robbinses, together with the Sparks Regional Medical Center consent form that had been signed by Mrs. Robbins prior to the surgery. Dr. Johnson's attorney read from that letter in court during the hearing.

The circuit court granted the motion to dismiss with prejudice. In its order, the circuit court stated that the alleged negligence in the complaint did not lie within the jury's comprehension as a matter of common knowledge, and because the complaint had been filed during the tolling period without the required affidavit from an expert, the complaint must be dismissed with prejudice because the statute of limitations had expired. In making its decision, the circuit court said it was relying on Dr. Johnson's, motion to dismiss and his brief in support, the Robbinses' answer to the motion to dismiss and their brief in support, and "all exhibits produced at the hearing." From this order of dismissal, Mr. and Mrs. Robbins appeal.

Mr. and Mrs. Robbins claim, as their only point on appeal, that their complaint should not have been dismissed because Dr. Johnson's malpractice and the resulting damages are clear and unmistakable to a layperson, and, therefore, no expert affidavit was required. Specifically, they contend that the negligence complained of was the inadvertent plunging of the curette into Mrs. Robbins's spinal cord and that this was the result of "plain clumsiness easily understood by all juries."

We first consider whether the circuit court's order was an order for summary judgment or an order of dismissal. In the circuit court's order granting Dr. Johnson's motion to dismiss, the court stated that it considered the motion, answer, briefs in support, exhibits produced at the hearing, and all oral arguments made by the parties. By his own statement, the judge admitted that he went beyond consideration of the stated allegations in the complaint. For example, Dr. Johnson's letter to his counsel describing the surgery was introduced into evidence at the hearing as an exhibit, and the judge said in his order that he considered the exhibits in making his decision."

This court has said:

When a trial court considers matters outside the pleadings, the appellate courts will treat a motion to dismiss as one for summary judgment. Kyzar v. City of West Memphis, 360 Ark. 454, 201 S.W.3d 923 (2005). A motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002).

T. J. ex rel. Johnson v. Hargrove, 362 Ark. 649, 210 S.W.3d 79 (2005). We conclude that the circuit court's order of dismissal was, in truth, an order of summary judgment.

We turn then to a consideration of whether that order should be affirmed. In a medical-malpractice case, the plaintiff's burden of proof is fixed by statute:

(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 locality;

(2) By means of expert testimony provided only by a medical care provider of...