Spring Creek Living Center v. Sarrett

• Decision Date: 17 January 1995
• Docket Number: No. 94-454,94-454
• Citation: Spring Creek Living Center v. Sarrett, 890 S.W.2d 598, 319 Ark. 259 (Ark. 1995)
• Parties: SPRING CREEK LIVING CENTER, Appellant, v. Vivian SARRETT, Appellee.
• Court: Arkansas Supreme Court

Page 598

890 S.W.2d 598

319 Ark. 259

SPRING CREEK LIVING CENTER, Appellant, v. Vivian SARRETT, Appellee.

No. 94-454.

Supreme Court of Arkansas.

Jan. 17, 1995.

Overston S. Anderson, Frances E. Scroggin, Little Rock, for appellant.

David Hodges, Little Rock, Paul Schmidt, Cabot, for appellee.

DUDLEY, Justice.

Appellee Vivian Sarrett was a ninety-five-year-old resident of the Spring Creek Living Center, a geriatric care facility, when employees of Spring Creek lost control of her wheel chair and dropped her. Mrs. Sarrett filed suit and alleged ordinary negligence by employees of Spring Creek and Southern Key Investments, Inc. in dropping her. After first denying liability, Spring Creek and Southern admitted that Mrs. Sarrett's injuries were the proximate result of negligence by the employees of Spring Creek.

Mrs. Sarrett amended her complaint to add a second count for conspiracy by employees and representatives of Spring Creek to withhold appropriate medical treatment from her. Still later, a second amendment added a third count for failure of Spring Creek to provide appropriate medical treatment after the injury.

Spring Creek and Southern moved to sever the allegations of conspiracy and failure to provide medical treatment from the claim for ordinary negligence in dropping the wheel chair. The motion was denied. A motion in limine to bar the introduction of lay testimony about the withholding of medical care was also denied. The trial court ruled that the allegations did not involve medical injuries, but instead involved only ordinary negligence for which lay opinion would suffice.

In the course of the trial the judge directed a verdict for Southern on all counts and directed a verdict for Spring Creek on the conspiracy count. The trial court denied Spring Creek's motion for a directed verdict for failure to provide medical care to the plaintiff. The trial court reasoned that there was no separate medical malpractice claim apart from the ordinary negligence claim. At this point in the trial Southern was dismissed from all counts, and Spring Creek was dismissed on the conspiracy count. Spring Creek remained in the suit on the ordinary negligence count and the failure to provide medical care count because the trial court had ruled that these two counts were both for ordinary negligence. At the close of the case Spring Creek offered an instruction on medical malpractice, but the trial court refused to give it. The jury returned a verdict of $30,000 on behalf of Mrs. Sarrett. Spring Creek appeals. We reverse and remand.

Appellant argues that allegations raised by the amendments to Mrs. Sarrett's complaint involved medical injury within the Medical Malpractice Act. See Ark.Code Ann. § 16-114-201(3) (1987). The amended complaint alleged that Spring Creek and Southern "failed and neglected to provide [Mrs. Sarrett] with any medical treatment" and that certain conditions could have been diagnosed earlier but for the "neglect and intentional refusal" of agents and employees of Spring Creek and Southern to provide competent medical care.

Section 16-114-201(3) defines "medical injury" broadly:

"Medical injury" or "injury" means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

Ark.Code Ann. § 16-114-201(3) (1987). It follows that claims based on allegations of a failure to provide needed medical care and attention or the timely diagnosis of medical problems come within the ambit of the Medical Malpractice Act and are dependent upon expert testimony. Ark.Code Ann. § 16-114-206(a) (1987); Courteau v. Dodd, 299 Ark. 380, 773 S.W.2d 436 (1989); Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982). The trial court erred in permitting the issues raised by the medical malpractice amendment to rest on lay testimony, and it was error to refuse to grant a directed verdict on the medical malpractice count.

Mrs. Sarrett asks us to affirm the judgment on the ground that the trial court reached the right result, albeit for the wrong reason, because it refused to give the malpractice instruction, and, consequently, the jury never considered an award for medical malpractice. We cannot affirm on such a basis. Richard Tockman, Mrs. Sarrett's son-in-law, testified on her behalf that the medical care she received from Spring Creek changed dramatically for the worse after her fall. He cited as an example the fact that her pain medication was withheld from her. There was also testimony that Dr. Jerry Chapman, a radiologist and alleged agent of Spring Creek, cancelled necessary x-rays of Mrs. Sarrett. There was further testimony that Mrs. Sarrett stayed in bed for almost a year under the care of Spring Creek while complaining about shoulder, hip, and thigh problems. Yet, no treatment for those conditions was provided. In closing argument, Mrs. Sarrett's counsel remarked:

Now, what's it worth to have an injury for almost a--from January until December, laying in bed with all the problems she had? I say it's over a Hundred Thousand Dollars. Now, if you disagree with me, you think [sic] what you think is fair. I say anything less than a Hundred wouldn't be fair in this case.

An instruction was given asking the jury to make a determination of whether Dr. Chapman was an agent of Spring Creek in his care of Mrs. Sarrett, and the jury answered in the affirmative. The above evidence, counsel's argument, and the finding by the jury are not associated with damages resulting from Sarrett's fall, but rather are connected with the assertions of failure to provide adequate medical care.

In a related argument, Mrs. Sarrett asks us to affirm the erroneous...