Traci Mitchell v. Dr. Lance Lincoln
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Traci MITCHELL v. Dr. Lance LINCOLN
051369
___ S.W.3d ___
Supreme Court of Arkansas
Opinion delivered June 22, 2006
1.
NEGLIGENCE – MEDICAL MALPRACTICE – MERE STATEMENT OF WHAT TREATMENT
SHOULD HAVE BEEN PROVIDED DID NOT QUALIFY AS STATEMENT SETTING FORTH THE
APPLICABLE STANDARD OF CARE. – The asserted negligence did not lie within the
jury’s comprehension as a matter of common knowledge as it could hardly be said to
be common knowledge that the transfusion of a leukemia patient with an allegedly
improper blood type could cause injury to the patient; without expert testimony
demonstrating why a specialist’s recommendations should have been followed, a jury
could not know how, why, or whether the alleged negligence caused the plaintiff’s
harm.
2.
NEGLIGENCE – MEDICAL MALPRACTICE – EXPERT’S AFFIDAVIT WAS INSUFFICIENT TO
CREATE A QUESTION OF FACT. – Where the plaintiff’s expert’s affidavit was devoid of
any mention of the standard of care in Baxter County, the site of the alleged medical
malpractice, the expert’s affidavit was insufficient to create a question of fact on the
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issue, and the trial court did not err in granting the appellee doctor’s motion for
summary judgment.
Appeal from Marion Circuit Court; Roger V. Logan, Jr., Judge; affirmed; court of
appeals reversed.
Law Offices of Charles Karr, P.A., by: Charles Karr and Shane Roughley, for
appellant.
Cox, Cox & Estes, PLLC, by: Walter B. Cox and James R. Estes, for appellee.
TOM GLAZE, Justice. This is an appeal from the trial court’s decision to grant
summary judgment in a medicalmalpractice case in favor of defendantappellee Dr. Lance
Lincoln. The court of appeals reversed the trial court’s decision in a 222 vote, and Dr.
Lincoln petitioned this court for review. When this court grants a petition for review, we
consider the appeal as though it had been originally filed in this court. Dixon v. Salvation
Army, 360 Ark. 309, 201 S.W.3d 386 (2005); Sharp County Sheriff’s Office v. Ozark Acres,
349 Ark. 20, 22, 75 S.W.3d 690 (2002).
The plaintiffappellant in this case, Traci Mitchell, is the widow of Guy Mitchell, who
had been diagnosed with chronic myelogenous leukemia in June of 1994. Guy was admitted
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to M.D. Anderson Cancer Center in Houston on August 3, 1994, and discharged on August
13, 1994; he returned to M.D. Anderson for a bone marrow transplant on September 22,
1994. On January 6, 1995, Dr. James Gajewski of M.D. Anderson sent a letter to Guy’s
treating physician, Dr. Lincoln, containing the following recommendation:
All blood transfusions need to be irradiated. His original blood type
was Apositive, [and] his donor type is Opositive. I would recommend, if he
needs a blood transfusion, to transfuse him with Opositive red cells. If he
requires platelet products, at this point in time he should be transfused with B
positive platelets. All blood products should be given with a Pall filter to
reduce risk of cytomegalovirus infection. An alternative would be to use
CMVnegative blood products.
Guy required blood transfusions in the early months of 1995; between January 18,
2005, and March 22, 1995, Dr. Lincoln performed eleven blood transfusions. However, Dr.
Lincoln failed to use Opositive red cells or Bpositive platelets. Guy was readmitted to
M.D. Anderson on March 24, 1995, and upon his discharge, he was admitted to the
University of Arkansas for Medical Sciences and remained there until he was discharged on
July 14, 1995. Guy died at his home in Flippin on July 23, 1995.
Traci Mitchell was appointed special administrator of Guy’s estate on September 8,
1995. On October 29, 1996, Mitchell filed suit against Dr. Lincoln, Baxter County Regional
Hospital, St. Paul Fire & Marine Insurance Company, and John Does Numbers 13. After
the defendants moved for summary judgment, Mitchell moved for a voluntary nonsuit, which
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1
was granted on August 20, 1999. Mitchell then refiled her complaint on August 17, 2000.
In her complaint, Mitchell asserted that Dr. Lincoln had violated the standard of care and had
been negligent in giving Guy the “wrong type of blood products as ordered and
recommended by his physicians at M.D. Anderson.”
Dr. Lincoln answered and moved for summary judgment, arguing that Mitchell had
not produced any expert testimony regarding the standard of care in her medicalmalpractice
case, or any expert testimony demonstrating that Dr. Lincoln’s alleged negligence was the
proximate cause of Guy’s death. In support of his motion for summary judgment, Dr.
Lincoln attached an affidavit from Dr. Gary Markland, a physician licensed in the State of
Arkansas. Dr. Markland averred that he was “familiar with the standard of care in Arkansas
as it relates to the transfusion of blood and blood products to patients suffering with chronic
myelogenous leukemia.” In addition, Dr. Markland stated that he had reviewed Guy’s
medical records, and based on his review, Dr. Markland stated that it was his medical
1
The trial court dismissed St. Paul Fire & Marine Insurance Company from this
action for reasons unrelated to this appeal. When the court granted Dr. Lincoln’s motion
for summary judgment, the order did not mention the John Doe defendants, and the court
of appeals initially dismissed Mitchell’s appeal without prejudice for lack of a Rule 54(b)
certificate. Mitchell subsequently took a nonsuit with respect to the John Doe defendants
and the trial court entered an order treating Mitchell’s motion as a motion to dismiss the
John Doe defendants, which the court granted on February 2, 2005.
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opinion, to a reasonable degree of medical certainty, that Guy was not given the “wrong
type” of blood, that the transfusions that he did receive were within the applicable standard
of care, and that the transfusions were not the proximate cause of Guy’s death.
Mitchell responded to Dr. Lincoln’s motion for summary judgment, asserting that
there were genuine issues of material fact. In support of her response, Mitchell attached a
copy of a letter from Dr. Gajewski to Dr. Lincoln; in that letter, Dr. Gajewski stated his
recommendation, quoted above, that Guy receive Opositive red cells and Bpositive
platelets. Mitchell subsequently filed a “first supplement” to her response to Dr. Lincoln’s
motion for summary judgment, attaching a copy of a clinic note from Dr. Gajewski in which
Dr. Gajewski noted that Guy had “received what we think is six units of group A red cells
inappropriately in Arkansas . . . , and we have previously recommended that he receive group
O [red blood cells].”
In his reply to Mitchell’s response to his motion for summary judgment, Dr. Lincoln
asserted that summary judgment was appropriate because Mitchell had failed to establish 1)
the existence of medical negligence with expert testimony; 2) the appropriate standard of
care; and 3) the existence of proximate cause. See Ark. Code Ann. § 16114206 (Repl.
2006). In response, Mitchell filed a “second supplemental response” to the summary
judgment motion, attaching an affidavit from Dr. Barry L. Singer, a hematologistoncologist
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licensed in Pennsylvania, who stated, in relevant part, the following:
I have reviewed the medical records of Guy Mitchell concerning his
chronic myelogenous leukemia. The standard of care would require a primary
care physician, such as Dr. Lincoln, to follow the recommendations of a
specialist, such as Dr. Gajewski. Transfusing Mr. Mitchell with Apositive red
cells, as was done in this case, was a violation of the standard of care. In my
opinion, within a reasonable degree of medical certainty, the failure to
transfuse Mr. Mitchell with Opositive red cells and Bpositive platelets as a
2
significant contributing factor in the recrudescence of his disease and ultimate
demise.
After a hearing, the trial court entered an order on October 3, 2003, granting Dr.
Lincoln’s motion for summary judgment. In its order, the court found that Mitchell had
failed to provide expert testimony that established the standard of care, that Dr. Lincoln had
breached that standard of care, and that any alleged negligence was the proximate cause of
Guy’s death. Specifically, the court found that Dr. Singer’s affidavit did not say that he was
familiar with the standard of care in Arkansas, and as such, it failed to raise an issue of fact
as to whether there was negligence in this case. The court, however, retained jurisdiction of
the matter to give the parties a chance to file motions for reconsideration, if such were
deemed warranted.
Mitchell filed a motion for reconsideration on October 15, 2003, attaching an
2
To “recrudesce” means to “break out anew or come into renewed activity.”
American Heritage College Dictionary 1142 (3d ed. 1997).
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additional affidavit from Dr. Singer in which the doctor stated his opinion as to the standard
of care for a physician in Baxter County. However, the trial court struck the additional
affidavit from the record and declined to consider the new allegations contained therein,
ruling that it had given leave to raise additional legal arguments, not to provide additional
facts. The court then concluded once more that Mitchell had failed to provide evidence of
the standard of care in Baxter County and that she had failed to meet proof with proof to
rebut Dr. Markland’s claim that Dr. Lincoln’s alleged negligence was not the proximate
cause of Guy’s death.
Mitchell appealed the trial court’s decision to the court of appeals, arguing that the
trial court erred in finding there was no genuine issue of material fact. She did not, however,
appeal the trial court’s decision to strike the supplemental affidavit of Dr. Singer; therefore,
we can only consider, as did the trial judge, whether Dr. Singer’s first affidavit was sufficient
to create a fact issue that would survive a motion for summary judgment.
A trial court may grant summary judgment only when it is clear that there are no
genuine issues of material fact to be litigated, and that the party is entitled to judgment as a
matter of law. Harris v. City of Fort Smith, 359 Ark. 355, 197 S.W.3d 461 (2004). Once the
moving party has established a prima facie case showing entitlement to summary judgment,
the opposing party must meet proof with proof and demonstrate the existence of a material
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issue of fact. Young v. GastroIntestinal Ctr., 361 Ark. 209, ___ S.W.3d ___ (2005). On
appellate review, we determine if summary judgment was appropriate based on whether the
evidentiary items presented by the moving party in support of its motion leave a material fact
unanswered. Id. This court views the evidence in a light most favorable to the party against
whom the motion was filed, resolving all doubts and inferences against the moving party.
Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).
Under Arkansas law, the burden of proof for a plaintiff in a medical malpractice case
is fixed by statute. See § 16114206. The statute requires that, in any action for a medical
injury, expert testimony is necessary regarding the skill and learning possessed and used by
medical care providers engaged in that speciality in the same or similar locality. See Young,
supra; Williamson v. Elroy, 348 Ark. 307, 72 S.W.3d 489 (2002). Specifically, the statute
provides as follows:
(a) In any action for medical injury, when the asserted negligence does
not lie within the jury’s comprehension as a matter of common knowledge, the
plaintiff shall have the burden of proving:
(1) By means of expert testimony provided only by a medical care
provider of the same specialty as the defendant, 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 or she practices or in a similar locality;
(2) By means of expert testimony provided only by a medical care
provider of the same specialty as the defendant that the medical care provider
failed to act in accordance with that standard; and
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(3) By means of expert testimony provided only by a qualified medical
expert that as a proximate result thereof the injured person suffered injuries
that would not otherwise have occurred.
We first address Mitchell’s argument that she was not required to produce expert
testimony because the asserted negligence lies within a jury’s comprehension as a matter of
common knowledge. As set out above, our medicalmalpractice statute requires expert
testimony when the standard of care is not a matter that lies within the jury’s comprehension
as a matter of common knowledge. See Ark. Code Ann. § 16114206(a) (Repl. 2006);
Skaggs v. Johnson, 323 Ark. 320, 915 S.W.2d 253 (1996); Davis v. Kemp, 252 Ark. 925, 481
S.W.2d 712 (1972). On appeal, Mitchell notes that her response to Dr. Lincoln’s motion for
summary judgment incorporated a letter from Dr. Gajewski about transfusing Guy with O
positive blood. Mitchell argues that a jury of laymen should be able to understand that the
recommendations of a specialist in the field should be followed, and that, therefore, she did
not need expert testimony to create a fact question.
We disagree. Our court of appeals has correctly noted that “mere statements of what
treatment should or should not have been provided do not qualify as statements setting forth
the applicable standard of care.” See Dodd v. Sparks Reg’l Med. Ctr., 90 Ark. App. 191, ___
S.W.3d ___ (2005) (declining to find an expression of the standard of care in a statement
that, “if the attending doctors and hospital staff had exercised due care, it is more likely than
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not that” the plaintiff’s decedent would not have committed suicide). See also Robson v.
Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995) (rejecting an argument that assumed that
“simply because treatment is available for a medical injury, it follows that it is negligence
for a medical care provider not to provide the treatment”).
Moreover, Mitchell wrongly presumes that her case falls within the “common
knowledge exception.” As noted above, a plaintiff does not need to provide expert testimony
when the asserted negligence lies within the comprehension of a jury of laymen. See Haase
v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996). The Haase court discussed the issue as
follows:
The necessity for the introduction of expert medical testimony in
malpractice cases was exhaustively considered in Lanier v. Trammell, 207
Ark. 372, 180 S.W.2d 818 (1944). There we held that expert testimony is not
required when the asserted negligence lies within the comprehension of a jury
of laymen, such as a surgeon’s failure to sterilize his instruments or to remove
a sponge from the incision before closing it. On the other hand, when the
applicable standard of care is not a matter of common knowledge the jury must
have the assistance of expert witnesses in coming to a conclusion upon the
issue of negligence.
Haase, 323 Ark. at 269, 915 S.W.2d at 678.
The vast majority of our cases to have considered this issue hold that expert medical
testimony is necessary because the alleged medical negligence is not within the
comprehension of a jury of laymen. See Fryar v. Touchstone Physical Therapy, 365 Ark.
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295, ___ S.W.3d ___ (2006) (connection between preexisting neck and spine injuries and
alleged injuries caused by an unlicensed chiropractor’s treatment “would not be a matter of
common knowledge or understanding”); Eady v. Lansford, 351 Ark. 249, 92 S.W.2d 57
(2002) (expert testimony required to rebut defense testimony regarding whether a physician
has a duty to inform a patient about rare side effects of a medication); Skaggs v. Johnson,
supra (medical decision to leave a piece of drainage tube in a patient’s leg, as opposed to an
inadvertent leaving of objects in a patient’s body, presented an issue outside the jury’s
common knowledge and required expert testimony); Robson v. Tinnin, supra (matters
relating to the changing of dental implants and treatment of fractured teeth are not matters
of common knowledge); Davis v. Kemp, supra (whether it was proper or improper on a first
medical visit to irrigate a wound and administer antibiotics was not a matter of common
knowledge, and the failure to find a piece of glass on the first visit would hinge upon whether
or not good medical practice required the probing of the wound on the first visit); but cf.
Watts v. St. Edward Mercy Med. Ctr., 74 Ark. App. 406, 49 S.W.3d 149 (2001) (no need to
provide expert testimony on the issue of whether a broken hip can cause pain).
In the instant case, although it may be common knowledge that there are four major
blood types, it can hardly be said to be common knowledge that the transfusion of a leukemia
patient with an allegedly improper blood type can cause injury to the patient. Although
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Mitchell attempts to frame the issue as being whether a jury of laymen can understand that
an internist should follow a specialist’s recommendations, the issue is more complicated than
that, because it also requires an understanding of why such recommendations should be
followed. That is, without expert testimony demonstrating why the recommendations should
be followed, the jury cannot know how, why, or whether the alleged negligence caused the
plaintiff’s harm.
Having established that Mitchell was required to provide expert testimony, we next
3
consider her argument that the trial court erred in discounting Dr. Singer’s first affidavit on
the basis that it did not address the standard of care in Arkansas or Baxter County. The
medicalmalpractice statute and our case law are specific in stating that there must be an
attestation by an expert regarding this locality or a similar one, and this court has affirmed
summary judgment for the failure to do so. Young, supra; Reagan v. City of Piggott, 305
Ark. 77, 805 S.W.2d 636 (1991).
3
As mentioned above, Dr. Singer’s second affidavit did state a familiarity with the
standard of care in Baxter County. However, Mitchell does not argue that the trial court
erred in striking the second supplemental affidavit. This court has consistently held that
it will not make an appellant’s argument for him or her. See Hanlin v. State, 356 Ark.
516, 157 S.W.3d 181(2004); Phillips v. Earngey, 321 Ark. 476, 481, 902 S.W.2d 782,
785 (1995) (“[i]t is axiomatic that we refrain from addressing issues not raised on
appeal”).
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In his affidavit, Dr. Singer stated that he is a physician licensed to practice medicine
in Pennsylvania and that he is a specialist in hematologyoncology. Regarding the standard
of care, Dr. Singer stated that the standard of care “would require a primary care physician,
such as Dr. Lincoln, to follow the recommendations of a specialist, such as Dr. Gajewski.”
The affidavit is silent as to any locality, but nonetheless, Mitchell argues that it is “implicit
in Dr. Singer’s affidavit that he was addressing the standard of care in Baxter County,
Arkansas, since he mentioned the defendant by name.”
This court has held that an expert need not be familiar with the practice in the
particular locality, but must demonstrate a familiarity with the standard of practice in a
similar locality, either by his testimony or by other testimony showing the similarity of
localities. See Wolford v. St. Paul Fire & Marine Ins. Co, 331 Ark. 426, 961 S.W.2d 743
(1998); Corteau v. Dodd, 299 Ark. 380, 773 S.W.2d 436 (1989); Gambill v. Stroud, 258 Ark.
766, 531 S.W.2d 945 (1976). In Corteau, supra, this court affirmed a trial court’s grant of
summary judgment to the defendant doctors where the plaintiff’s expert’s affidavit
“contained nothing about his having knowledge as to how a radiologist in a community like
North Little Rock should have interpreted” an xray requisition. Corteau, 299 Ark. at 386,
773 S.W.2d at 439. Similarly, in Young v. GastroIntestinal Center, supra, this court held
that the plaintiff did not establish the standard of care when her expert witnesses, a doctor
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and nurse from Texas, failed to testify regarding the standard of care in Little Rock. Young,
361 Ark. at 213, ___ S.W.3d at ___.
Dr. Singer’s affidavit is devoid of any mention of the standard of care in Baxter
County. Accordingly, because our case law is explicit in requiring expert testimony
regarding the standard of care in the same or similar locality, Mitchell’s expert’s affidavit
was insufficient to create a question of fact on this issue, and the trial court did not err in
4
granting Dr. Lincoln’s motion for summary judgment.
Affirmed.
4
Dr. Lincoln raises an additional argument wherein he suggests that Dr. Singer’s
affidavit also failed to state that Dr. Lincoln’s negligence was the proximate cause of Guy
Mitchell’s injuries. However, we find it unnecessary to reach this issue, as Dr. Singer’s
affidavit did not adequately state the standard of care for the locality.
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