Taylor v. Riddell

• Decision Date: 08 May 1995
• Docket Number: No. 94-880,94-880
• Citation: 320 Ark. 394,896 S.W.2d 891
• Parties: Kathy June TAYLOR, Appellant, v. C. Michael RIDDELL, M.D., Appellee.
• Court: Arkansas Supreme Court

Page 891

896 S.W.2d 891

320 Ark. 394

Kathy June TAYLOR, Appellant, v. C. Michael RIDDELL, M.D., Appellee.

No. 94-880.

Supreme Court of Arkansas.

May 8, 1995.

Charles Karr, Fort Smith, for appellant.

Calvin J. Hall, Tonia P. Jones, Little Rock, for appellee.

HOLT, Chief Justice.

This is a medical malpractice case in which the appellant, Kathy June Taylor, contended that the appellee, Dr. C. Michael Riddell, was negligent in causing and failing to diagnose a vesicovaginal fistula that developed following her abdominal hysterectomy. Ms. Taylor raises three points for reversal of a jury verdict in favor of Dr. Riddell, asserting that the trial court erred in (1) refusing to give her requested instruction on res ipsa loquitur; (2) giving the second paragraph of AMI Civil 3d 1501 (duty of physician, etc.) relating to expert witnesses because that paragraph is a comment on the evidence in violation of the Arkansas Constitution; (3) giving AMI Civil 3d 603 (no presumption of fault from happening of injury) because it is a comment on the evidence in violation of the Arkansas Constitution. None of these arguments has merit, and we affirm the judgment of the trial court.

Facts

Dr. Riddell is a board-certified obstetrician and gynecologist at the Millard-Henry Clinic in Russellville. Ms. Taylor, though not a regular patient of his, went to Dr. Riddell when she was having problems with her menstrual periods. After two office visits and an examination, Dr. Riddell scheduled Ms. Taylor for surgery. On August 30, 1991, he performed an abdominal hysterectomy on her at St. Mary's Hospital in Russellville.

Ms. Taylor was discharged from the hospital by Dr. Riddell on September 4, 1991. She returned to the Millard-Henry Clinic on September 6, 1991, to have her staples removed. She did not see Dr. Riddell at that time or subsequently. Ms. Taylor stated that she experienced nausea and pain during this period. On September 13, 1991, she returned to the clinic for some lab work but did not see a physician. Her efforts to contact Dr. Riddell at various times were unavailing. According to Ms. Taylor, the pain persisted, and, on September 15, 1991, she went to the St. Mary's Hospital emergency room, where she was seen by another physician, who diagnosed her as suffering from a urinary tract infection and noted that she was incontinent. This was the first occasion of record on which Ms. Taylor reported her problem.

It is Ms. Taylor's assertion that urine flowed continuously through her vagina while she was recovering in the hospital and after she had returned to her home. On October 9, 1991, she saw Dr. Paul Kradel, a Fort Smith obstetrician and gynecologist, at the Johnson County Regional Hospital in Clarksville. Dr. Kradel discovered that Ms. Taylor had a vesicovaginal fistula, i.e., a small opening in the walls of the bladder and the vagina through which urine leaks from the bladder into the vagina and is discharged in an uncontrolled manner.

Dr. Kradel referred Ms. Taylor back to the Millard-Henry Clinic, and, while she refused to see Dr. Riddell, she agreed to make an appointment with his partner, Dr. Jody C. Calloway. On October 14, 1991, Ms. Taylor saw Dr. Calloway, who confirmed the diagnosis of vesicovaginal fistula and referred her to Dr. David Barclay, a Little Rock gynecologist. Ms. Taylor saw Dr. Barclay on October 24, 1991. Dr. Barclay also confirmed the diagnosis of vesicovaginal fistula and scheduled Ms. Taylor for surgery to repair the condition. On November 6, 1991, Ms. Taylor was successfully operated upon. Since that time, she has had no further urinary problems.

Ms. Taylor filed a complaint in the Johnson County Circuit Court on April 16, 1992, alleging, among other things, that Dr. Riddell negligently punctured her bladder during surgery and failed to discover the puncture or to repair it before the incision was closed. She further pleaded that "Subsequent examinations revealed a vasico-vaginal fistula just above the vaginal cuff anteriorly." Ms. Taylor also asserted that "[t]he doctrine of res ipsa loquitur applies."

A three-day trial was conducted in January 1994. The jury returned a unanimous verdict in favor of Dr. Riddell, and the circuit court dismissed the complaint with prejudice. From that judgment, this appeal arises.

I. Res ipsa loquitur

In her first argument for reversal, Ms. Taylor contends that the trial court erred in refusing to give her requested instruction on the applicability of the doctrine of res ipsa loquitur. ¹ At the conclusion of the testimony, Ms. Taylor tendered Plaintiff's Requested Instruction No. 1, based on AMI Civil 3d 610:

With respect to the question of whether Defendant was negligent, Plaintiff has the burden of proving each of the following two propositions:

First: That the injury was attributable to the surgery while the operative site or field was under the exclusive control of defendant.

Second: That in the normal course of events, no injury would have occurred if Defendant had used ordinary care while the operative site or field was under his exclusive control.

If you find that each of these two propositions has been proved by Plaintiff, then you are permitted, but not required, to infer that Defendant was negligent.

The trial court ruled that the proffered instruction was "not proper in this case pursuant to the Supreme Court's holding in Schmidt v. Gibbs."

In Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991), a wrongful-death medical malpractice case, we set forth those circumstances in which the doctrine of res ipsa loquitur may be invoked:

1. The defendant owes a duty to the plaintiff to use due care;

2. The accident is caused by the thing or instrumentality under the control of the defendant;

3. The accident which caused the injury is one that, in the ordinary course of things[,] would not occur if those having control and management of the instrumentality used proper care;

4. There is an absence of evidence to the contrary. [Citations omitted.]

If each of the elements for the application of the doctrine of res ipsa loquitur is present, then "the accident from which the injury results is prima facie evidence of negligence and shifts to the defendant the burden of proving that it was not caused through any lack of care on its part." [Citation omitted.]

305 Ark. at 387, 807 S.W.2d at 931.

We went on, in Schmidt, to survey the "confusing and unclear" history of the application of the doctrine of res ipsa loquitur in Arkansas, ² noting that from Routen v McGee, 208 Ark. 501, 186 S.W.2d 779 (1945), onward, cases and treatise writers had concluded that Arkansas did not recognize the doctrine's applicability to the practice of medicine and surgery. Clarifying the case of Brown v. Dark, 196 Ark. 724, 119 S.W.2d 529 (1938), which had been misconstrued in Routen, we expressly held that "the doctrine of res ipsa loquitur may apply in cases of medical malpractice on the part of any and all medical care providers as defined by the Medical Malpractice Act if the essential elements for application of the doctrine exist." 305 Ark. at 389, 807 S.W.2d at 932.

The Schmidt opinion is directly on point and requires a close reading. There, the appellant, acting as administrator of his wife's estate, sought to hold the appellees (a surgeon, an anesthesiologist, attending nurses, a hospital, and its carrier) liable under res ipsa loquitur for the death of his wife nearly two weeks after an operation in which a six-inch flame shot from her throat as she was undergoing a tracheostomy procedure. This court held that the appellant was not entitled to the application of the doctrine of res ipsa loquitur against the anesthesiologist and his nurse because, with respect to the fourth requirement, there was "evidence to the contrary" that indicated the use of "proper care":

The expert witness selected by the appellant has testified in clear and unequivocal terms that the care and treatment offered by Dr. Browning and Nurse Ray was not below the standard of care required. In addition, the appellees' expert witness, Dr. Robert G. Valentine, corroborates Dr. Jeffries' opinion that Dr. Browning and Nurse Ray had met the requisite standard of care.

Appellant attempts to maintain the potential liability of Dr. Browning and Nurse Ray by submitting Dr. Jeffries' affidavits opining that the type of fire which occurred in this case could not happen absent negligence on behalf of someone on the surgical team.... However, this evidence is insufficient to overcome Dr. Jeffries' testimony that the actions of Dr. Browning and Nurse Ray were not below the standard of care required. This testimony constitutes "evidence to the contrary" thereby preventing the application of the doctrine of res ipsa loquitur.

Id.

On the other hand, we held that, with respect to the hospital's insurance carrier, the second element of res ipsa loquitur had been established because "[t]he operating room, equipment, and nurses were all things or instrumentalities under the control or management of Baptist Medical Center." 305 Ark. at 390, 807 S.W.2d at 932. Further, we declared that expert testimony had set forth facts that, "if believed, would satisfy each of the remaining elements necessary for the application of the doctrine of res ipsa loquitur." Id.

The difference in the respective situations of the anesthesiologist and nurse and the insurance carrier was explained thus:

[T]here was clear and unequivocal testimony that Dr. Browning and Nurse Ray had met the standard of care. The testimony concerning the care provided by nurses who were employees of Baptist Medical Center is not so clear and unequivocal.

The evidence before the trial court concerning the care provided by the nurses and Baptist Medical Center consisted of the deposition and two affidavits of plaintiff's expert witness, Dr. Mervyn Jeffries. In his deposition, Dr. Jeffries stated that he was not "in any way critical of the...