Williamson v. Elrod, 01-828.

• Citation: 348 Ark. 307,72 S.W.3d 489
• Decision Date: 25 April 2002
• Docket Number: No. 01-828.,01-828.
• Parties: Stephen B. WILLIAMSON, M.D. v. Steven Craig ELROD, as Personal Representative of the Estate of Floy Elrod, Deceased.
• Court: Supreme Court of Arkansas

72 S.W.3d 489

348 Ark. 307

Stephen B. WILLIAMSON, M.D. v. Steven Craig ELROD, as Personal Representative of the Estate of Floy Elrod, Deceased.

No. 01-828.

Supreme Court of Arkansas.

April 25, 2002.

Mitchell, Blackstock, Barnes, Wagoner & Ivers, by: Clayton Blackstock and Mark Burnette, Little Rock, for appellant.

Everett Law Firm, by: John C. Everett and Elizabeth E. Storey, Fayetteville, ; and Milligan Law Firm, by: Phillip J. Milligan, Fort Smith, for appellee.

W.H. "DUB" ARNOLD, Chief Justice.

This is a medical-malpractice action brought by the Estate of Floy Elrod, deceased, against general surgeon Stephen B. Williamson, M.D. Floy Elrod, age sixty-six at death, was survived by her husband of forty-seven years, Tullis Elrod, and two adult sons, Steven Craig Elrod and John Stanley Elrod. At trial, the jury found that Dr. Williamson was negligent. The jury awarded Tullis Elrod $500,000 for loss of consortium; Tullis, John, and Steven Elrod $250,000 for mental anguish; and the Estate of Floy Elrod $100,000 for pain and suffering. Dr. Williamson moved for a directed verdict at the end of Elrod's case and again at the end of all the evidence; both motions were denied. Dr. Williamson moved for judgment notwithstanding the verdict, remittitur, or a new trial by timely posttrial motions. The motions were denied, and this appeal was filed. We hold that appellant's motion for directed verdict should have been granted as appellee did not meet his burden of proof regarding the standard of care in Arkansas; as such, we reverse and dismiss the case.

Floy Elrod died on April 25, 1996. Appellee brought this cause of action pursuant to the Medical Malpractice Act and the Wrongful Death Act, seeking damages caused by the alleged negligence of the appellant. At the time of her death, Floy Elrod was a patient at Baptist Medical Center, suffering from free air in the abdomen. Floy Elrod had been a patient at Baptist Rehabilitation Center prior to that time, where she was receiving rehabilitation and care for cancer.

On April 25, 1996, Floy Elrod was immediately transferred to Baptist Medical Center (hereafter "Baptist") when a test revealed free air in the abdomen. She was admitted to Baptist by Dr. Brad Baltz, her oncologist. Upon Floy Elrod's admission to Baptist, Dr. Baltz ordered a surgical consult with the defendant. Nurse Garcia, a nurse on duty at the time, testified at trial that she notified the appellant of the consult at 2:15 a.m. on April 25, 1996. While Dr. Baltz contends that Floy Elrod may have elected not to have the surgery, Floy Elrod's entire family testified that she lay on her hospital bed from the time she arrived at Baptist, until her death at 3:27 p.m., waiting for the appellant to arrive to perform the surgery. The family members further testified that she knew she would die without the surgery. The appellant arrived at Floy Elrod's hospital room for the surgical consult twenty-one minutes prior to her death.

At trial, Dr. Samuel Landrum, the appellee's expert witness, testified that if notified of the surgical consult of a patient with free air in the abdomen, a majority of or "most" physicians would have consulted within an hour or less, and therefore, the appellant's failure to arrive for the surgical consult within an hour or less violated the standard of care. Dr. Landrum further testified that Floy Elrod would have had a 70 percent chance of survival had the defendant arrived for the surgical consult within the hour after being notified, and had the surgery been performed; however, he further testified that he would not have faulted appellant, or any surgeon, if he had consulted with and told Mrs. Elrod that he did not recommend the surgery.

Appellant argues that the trial court erred in denying his directed-verdict motion and post-trial motions wherein he argued that Elrod's expert, Dr. Samuel Landrum, based his opinions on a standard of care not recognized under Arkansas law. We agree. Dr. Landrum used a standard of care comparing what the majority of doctors in a given area do in a given situation as opposed to using the standard of care dictated by the General Assembly in Ark.Code Ann. § 16-114-206(a)(1) (1987). As such, Elrod did not satisfy the elements of proving a medical malpractice claim. More specifically, Elrod never established what the standard of care was as required by Ark.Code Ann. § 16-114-206(a)(1) through (3), which states:

16-114-206. Burden of proof.

(a) In any action for medical injury, the plaintiff shall have the burden of proving:

(1) 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 practices or in a similar locality;

(2) That the medical care provider failed to act in accordance with that standard; and

(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

[Emphasis added.]

Black's Law Dictionary defines "ordinary" as "[o]ccurring in the regular course of events; normal; usual." Black's Law Dictionary 1125 (7th ed. 1999). What a "majority" of or "most" physicians in a community would consider to be reasonable medical care in that community is different in meaning from "ordinary" and does not rise to the level of proof of "standard of care" required by the statutory language in § 16-114-206(a)(1). If "majority" was the standard, it would...