Villines v. N. Ark. Reg'l Med. Ctr.

• Decision Date: 26 October 2011
• Docket Number: No. CA 10–1196.,CA 10–1196.
• Citation: 385 S.W.3d 360,2011 Ark. App. 506
• Parties: Kelsey and Marlene VILLINES, Appellants v. NORTH ARKANSAS REGIONAL MEDICAL CENTER, Appellee.
• Court: Arkansas Court of Appeals

2011 Ark. App. 506
385 S.W.3d 360

Kelsey and Marlene VILLINES, Appellants
v.
NORTH ARKANSAS REGIONAL MEDICAL CENTER, Appellee.

No. CA 10–1196.

Court of Appeals of Arkansas.

Sept. 7, 2011.
Rehearing Denied Oct. 26, 2011.

[385 S.W.3d 362]

Jeffrey Lyle Slaton, Springdale, for appellants.

Michelle Hill Cauley, Little Rock, for appellee.

JOHN B. ROBBINS, Judge.

[Ark. App. 1]This appeal arises from a grant of summary judgment in favor of appellee, North Arkansas Regional Medical Center (NARMC). The circuit court ruled that, as a matter of law, NARMC did not act negligently with regard to its informed-consent policy and did not proximately cause damages to appellants Kelsey and Marlene Villines. Because questions of material fact remain, we reverse and remand.

Mr. Villines presented at NARMC with kidney stones in November 2003. When the stones did not pass overnight, Dr. Scott Ferguson obtained Mr. Villines's consent for surgery. NARMC contacted Certified Registered Nurse Anesthetist (CRNA) Garry Melton to provide anesthesia services.

At the time, NARMC's policy was to obtain a patient's informed consent prior to surgery and the administration of anesthesia. The written policy mandated separate consent forms for operative procedures and anesthesia, and it stated that consent should be obtained [Ark. App. 2]from the patient or his surrogate by the “anesthesia provider and/or physician.” Hospital personnel were assigned the limited role of verifying that consent had been given. In this regard, personnel were required to “check for validity of the informed consent” against the following criteria:

Information has been provided to the patient prior to the surgery or procedure;

Has been explained to the patient or surrogate by the anesthesia provider and/or physician;

That the patient or surrogate gave consent to treatment after the discussion;

That the patient or surrogate was given the opportunity to ask questions about the proposed treatment and that all of these questions were answered fully;

The blanks have been filled in with the necessary information;

All signatures required have been obtained.

The required signatures on the forms were that of the patient, a witnessing nurse, and the “anesthesia provider and/or physician.” The policy provided that informed consent with regard to anesthesia must consist of, among other things, the risks, drawbacks, complications, and expected benefits or effects of anesthesia; alternate choices of anesthesia; that the patient has been verbally informed about the anesthesia; and that the patient has had the opportunity to ask questions.

While Mr. Villines was awaiting surgery, NARMC nurse Karen Widner presented him with a form titled “Consent for Anesthesia.” The form listed several types of anesthesia

[385 S.W.3d 363]

along with their techniques and risks. It also recited that the risks had been explained to the patient; that the type of anesthesia “checked below” would be used for the procedure; and that the patient consented to the designated anesthesia service. The form, however, was essentially [Ark. App. 3]blank when presented to Mr. Villines and specified no particular type of anesthesia service; neither had Mr. Villines met with an anesthesia provider at that point. Nevertheless, Mr. Villines signed the form at the nurse's request, and the nurse witnessed his signature. Mr. Villines was then taken to the preoperative area of the hospital.

By that time, CRNA Garry Melton had arrived at the hospital and was preparing for the administration of anesthesia. Melton opted to employ a spinal-block method because Mr. Villines had recently undergone throat surgery, which would preclude the use of general anesthesia. Melton would later testify that he verbally explained his decision to both Mr. and Mrs. Villines prior to surgery. Mr. Villines, however, claims no memory of the meeting, and Mrs. Villines stated that she never saw Melton until after the surgery. Melton also testified that he did not sign the consent form that had been presented to Mr. Villines and that the anesthesia provider's signature on the form was affixed thereto after surgery by another provider, who never actually saw Mr. Villines.

During surgery, Melton experienced difficulty administering the spinal block and made a large number of punctures in Mr. Villines's back. After surgery, a physician who saw Mr. Villines determined that the punctures caused a serious inflammatory condition called arachnoiditis.

Based on these events, appellants Kelsey and Marlene Villines sued Garry Melton; Melton's employer, Boone County Anesthesia Associates; NARMC; and NARMC's insurer, Medical Assurance Company, for negligence.¹ Appellants settled with Melton and Boone [Ark. App. 4]County Anesthesia, leaving only their claim that NARMC was negligent in failing to ensure that their informed consent was obtained for the administration of spinal-block anesthesia. Appellants pled that they would not have consented to the spinal-block method had they been told that it would be used.

Following discovery, NARMC moved for summary judgment on the grounds that it neither negligently breached its informed-consent policy nor proximately caused appellants' damages. Appellants responded that factual questions remained on those issues. The circuit court, after initially agreeing with appellants, granted summary judgment in favor of NARMC. This appeal followed.

Our standard of review in summary-judgment cases is well established. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fort Smith Sch. Dist. v. Beebe, 2009 Ark. 333, 322 S.W.3d 1. The moving party has the burden of sustaining a motion for summary judgment. Id. We need only decide if the circuit court's grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Id. We view all proof in the light most favorable to the party resisting the motion and resolve all doubts against the moving party. Id. Summary

[385 S.W.3d 364]

judgment is not proper where the evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Bussey v. Bearden, 2011 Ark. App. 353, 384 S.W.3d 41.

[Ark. App. 5]Appellants argue first that questions of fact remain on the issue of NARMC's negligence. We agree. The Arkansas Medical Malpractice Act requires a plaintiff to prove, by expert testimony, that the medical-care provider...