Thomas v. Sessions

• Decision Date: 11 November 1991
• Docket Number: No. 91-19,91-19
• Citation: 818 S.W.2d 940,307 Ark. 203
• Parties: Raymond THOMAS, Individually and as Special Administrator of the Estate of William E. Thomas, Deceased, Appellant, v. Dr. Leslie SESSIONS, et al., Appellee.
• Court: Arkansas Supreme Court

Page 940

818 S.W.2d 940

307 Ark. 203

Raymond THOMAS, Individually and as Special Administrator of the Estate of William E. Thomas, Deceased, Appellant, v. Dr. Leslie SESSIONS, et al., Appellee.

No. 91-19.

Supreme Court of Arkansas.

Nov. 11, 1991.

Morgan E. Welch, No. Little Rock, for appellant.

Mitchell, Williams, Selig & Tucker by Sherry P. Bartley, Little Rock, for appellee.

HAYS, Justice.

This is a wrongful death action against two physicians and a hospital based on claims of medical malpractice. The hospital, Jefferson Regional Medical Center, and one of the physicians, Dr. Carl Bell, were dismissed by summary judgment. The other, Dr. Leslie Sessions, was acquitted by a jury verdict. The personal representative has appealed, contending there were material issues of fact as to Dr. Bell and trial errors with respect to Dr. Sessions and the hospital. We reverse and remand as to Dr. Bell and Dr. Sessions, but finding no issues of fact affecting the hospital, we affirm in part.

In appeals from summary judgment our review is in conformity with the rule that we examine the facts in a light most favorable to the appellant, and any doubts or inferences must be resolved against the moving party. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988).

On the late afternoon of October 24, 1984, Misty Sturgis called on her neighbor, Mr. William E. Thomas. She found him in acute distress: sweating profusely, weak and trembling, extremely flushed, experiencing nausea, chest pain and numbness in his left arm. At her insistence Thomas agreed to go to the Jefferson Regional Medical Center and Ms. Sturgis drove him there, arriving around five o'clock. Ms. Sturgis asked the emergency room personnel to do an EKG. Another friend, Ms. Bernadette Allen, arrived and the two stayed with Thomas waiting for the doctor to see him. Ms. Allen testified to Thomas's chest pain, as well as generalized pain. After some two hours Thomas left the emergency room, though whether he left of his own volition or was refused admission, is a disputed question. Thomas collapsed later that evening, was returned to the emergency room at 9:43 p.m., and expired shortly thereafter. Death was attributed to myocardial infarction.

Suit for wrongful death was brought by special administrator, alleging that Drs. Bell and Sessions conferred by telephone and concluded, without taking a proper history or performing proper tests and examinations, that Thomas was dehydrated due to alcoholism, resulting in a misdiagnosis and an abandonment in that Thomas was refused admittance to the hospital. Tests performed after Thomas's second trip to the emergency room showed his blood alcohol content to be zero.

The hospital's motion for summary judgment, which we will address momentarily, was based on a contractual agreement between the hospital and a group of physicians, including Dr. Sessions, operating as independent contractors. The summary judgment motion of Dr. Bell was grounded on the absence of genuine issues of material fact and in considering the motion the trial court had before it the depositions of Dr. Bell, Dr. Sessions, Ms. Rebecca Amos, a registered nurse on duty at the emergency room at the time in question, Dr. Wayne Smith, Misty Sturgis, Bernadette Allen and various records from the emergency room.

Since Dr. Sessions had no authority to admit patients to the hospital, he consulted Dr. Bell by telephone. Dr. Bell had staff privileges at Jefferson Regional and had treated William Thomas some four years earlier. Dr. Sessions recorded Mr. Thomas's complaints as: "hypertension, drinking alcohol for several days, unable to walk without holding on to something, shakes in his legs and headaches." He also observed nausea and vomiting. Dr. Sessions maintains that he and Dr. Bell concurred in recommending that Mr. Thomas be admitted to Jefferson Regional Medical Center for detoxification, or sent to Riverview in Little Rock for a twenty-eight day program of detoxification and rehabilitation. They further contend that Thomas refused either and left the hospital against medical advice.

Dr. Bell claims his only involvement in the case "consisted of a phone call from Dr. Sessions" wherein Dr. Sessions inquired of Dr. Bell whether he would be willing to admit Mr. Thomas as a patient to the hospital for purposes of detoxification. But there may have been additional phone calls and, as we will see in a moment, opposing medical opinion from which a jury might infer that Dr. Bell's participation was more involved than merely approving Mr. Thomas's admittance to the hospital, which in itself is a sharply disputed issue of fact. Indeed, Dr. Sessions testified that he and Dr. Bell discussed symptoms, treatment, and concurred in the view that Mr. Thomas should be admitted to the hospital. The two doctors were unequivocal in their contention that Mr. Thomas refused admittance to Jefferson Regional, but Ms. Amos was not so certain--her deposition states that the only conversation she had with Dr. Bell related to Riverview, the implication being that she and Dr. Bell did not discuss Jefferson. ¹ Moreover, the records of the emergency room do not reflect that Thomas refused hospitalization at Jefferson Regional, only that he "Refuses transfer" (a reference to Riverview).

Whether Thomas refused transfer to Riverview is, of course, immaterial. The pivotal issue is whether he was offered admission at Jefferson Regional. Appellees insist that is undisputed, but when that contention is weighed against other proof, both direct and circumstantial, we are unable to sustain the argument. The fact that Drs. Bell and Sessions maintain that Thomas did refuse, hardly renders the issue undisputed. Saunders, Adm'x. v. National Old Line, Ins. Co., 266 Ark. 247, 583 S.W.2d 58 (1979). Moreover, there are other material questions of fact, namely, whether adequate diagnostic procedures were followed, whether Thomas's symptoms, properly diagnosed, would have indicated cardiac distress, whether, assuming Thomas refused to be hospitalized, his decision was based on an informed understanding of his condition, whether Drs. Bell and Sessions consulted, and whether early detection of myocardial infarction would have affected the likelihood of recovery.

The order of summary judgment observes that "the only competent evidence of what Dr. Bell said during the telephone conversation came from Dr. Bell, Dr. Sessions and/or Nurse Amos, who all three stated that Dr. Bell did authorize admission to Jefferson Regional Medical Center." But that presumes the credibility of interested parties and focuses on the proof of the movant while disregarding opposing proof, exactly the reverse of how the proof should be weighed in deciding a motion for summary judgment. Some courts apply the "scintilla of evidence" rule which requires a court considering summary judgment to admit the truthfulness of all evidence favorable to the nonmovant, thereby removing all issues of credibility from the case, and determine if there are any facts from which a jury could reasonably infer ultimate facts upon which a claim depends; if so, the case must be decided by the factfinder. Schoen v. Gulledge, 481 So.2d 1094 (S.Ct.Ala.1985). Our own rule is similar:

The object of summary judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied.

Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 657 S.W.2d 536 (1983).

Nor can we agree there was no other proof as to Dr. Bell's involvement in the case. It is conceded that because Dr. Sessions had no authority to admit patients to the hospital he called Dr. Bell, who had treated Thomas. Dr. Bell was consulted by telephone not once, but as many as three times concerning Thomas's condition, symptoms and diagnosis and, according to Dr. Sessions, they concurred as to the proper course of treatment. If a jury were to agree with appellant's contention that Mr. Thomas was misdiagnosed and "abandoned" at the emergency room, it would also be within its ambit to decide whether Dr. Bell was privy to that action, giving Dr. Bell's assertions to the contrary such credence as it thought appropriate. We have said that summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable minds might differ. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986).

When the proof on the motion for summary judgment is given its strongest probative force favorable to the appellant, we cannot say no doubts exist on the issue of whether Thomas refused an offer of admission to the hospital. The plaintiff was prepared to prove that Thomas experienced symptoms consistent with cardiac distress, went to the emergency room and remained for two hours, returned home and collapsed and expired...