{ "id": 6140147, "name": "Damon H. CARTER v. ST. VINCENT INFIRMARY", "name_abbreviation": "Carter v. St. Vincent Infirmary", "decision_date": "1985-06-12", "docket_number": "CA 84-409", "first_page": "169", "last_page": "176", "citations": [ { "type": "official", "cite": "15 Ark. App. 169" }, { "type": "parallel", "cite": "690 S.W.2d 741" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "426 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191772, 6193027, 6193476, 6191395, 6192228, 6192844, 6191570, 6193235, 6192435, 6192024, 6192668 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/426/0907-03", "/us/426/0907-09", "/us/426/0907-11", "/us/426/0907-01", "/us/426/0907-05", "/us/426/0907-08", "/us/426/0907-02", "/us/426/0907-10", "/us/426/0907-06", "/us/426/0907-04", "/us/426/0907-07" ] }, { "cite": "529 F.2d 259", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10589990 ], "opinion_index": 0, "case_paths": [ "/f2d/529/0259-01" ] }, { "cite": "13 Ark. App. 293", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141578 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/13/0293-01" ] }, { "cite": "262 Ark. 758", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675854 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/262/0758-01" ] }, { "cite": "546 S.W.2d 88", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9928226 ], "opinion_index": 0, "case_paths": [ "/sw2d/546/0088-01" ] }, { "cite": "268 S.W.2d 909", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 2247928, 10210277 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/tex/153/0379-01", "/sw2d/268/0909-01" ] }, { "cite": "153 Tex. 379", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2247928 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/tex/153/0379-01" ] }, { "cite": "264 S.W.2d 759", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10204136 ], "year": 1954, "pin_cites": [ { "page": "761" } ], "opinion_index": 0, "case_paths": [ "/sw2d/264/0759-01" ] }, { "cite": "561 S.W.2d 860", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9955161 ], "opinion_index": 0, "case_paths": [ "/sw2d/561/0860-01" ] }, { "cite": "659 S.W.2d 124", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9931575 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/sw2d/659/0124-01" ] }, { "cite": "282 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740758 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/282/0130-01" ] } ], "analysis": { "cardinality": 687, "char_count": 12587, "ocr_confidence": 0.884, "pagerank": { "raw": 1.0375248411239599e-07, "percentile": 0.5498828310067498 }, "sha256": "0700ea6582c85e202233be90879bc51a7bd251039a3e327ad2ae7e5df5ac1bdb", "simhash": "1:a72f9c2379226643", "word_count": 2015 }, "last_updated": "2023-07-14T18:08:52.139004+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cooper and Glaze, JJ., agree." ], "parties": [ "Damon H. CARTER v. ST. VINCENT INFIRMARY" ], "opinions": [ { "text": "Donald L. Corbin, Judge.\nAn action for damag\u00e9s resulting from alleged malpractice was initiated by appellant, Damon H. Carter, against appellee, St. Vincent Infirmary, in the Circuit Court of Lincoln County. A jury returned a verdict for appellee; We reverse and remand for a new trial.\nIn January of 1979, appellant entered St. Vincent Infirmary. He had surgery identified as a gastric resection on January 8, 1979. A second operation was performed on January 16,1979, to correct an obstruction of the lower intestine. Following appellant\u2019s release from the hospital, he learned that he had an injury to his brachial plexus involving the long thoracic nerve resulting in a winged scapula with a loss of use to his right arm and shoulder. Both parties agree that appellant suffered an injury to his brachial plexus. Each party, however, alleges a different cause. Appellant contended at trial that the damage to his brachial plexus \\Vas caused by a stretch injury which he alleged occurred as a result of the negligence of two of appellee\u2019s orderlies. Appellant contended that he sustained the injury when the orderlies moved him from his hospital bed to a hospital gurney to take him to his second surgery. Appellee presented alternative evidence to illustrate that appellant\u2019s injury was not caused by an isolated stretch but was caused by a herpes simplex virus.\nThe issue on appeal is whether the trial court erred in excluding the rebuttal testimony of Cathy Bradshaw, a registered nurse who had special training as an Infection Control Practitioner. We agree with appellant that this witness should have been allowed to testify in rebuttal, subject to exclusion on proper objection to those specific portions of her testimony which may have been inadmissible.\nWhether a witness may give expert testimony rests largely within the sound discretion of the trial court and will not be reversed unless an abuse of discretion is found. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984). As stated by the Court in Dildine, supra:\nObviously no firm rule can be derived which would serve uniformly as a means of measuring qualifications of an expert, but the tone of our cases suggests that too rigid a standard should be avoided and if some reasonable basis exists from which it can be said the witness has knowledge of the subject beyond that of persons of ordinary knowledge, his evidence is admissible, (cites omitted)\nThe record reflects in the instant case that counsel for appellant questioned Cathy Bradshaw as to her opinion of whether a herpes simplex virus could cause permanent nerve damage. Counsel for appellee objected and was permitted to voir dire the witness regarding her qualifications. The court subsequently ruled that the witness was not qualified to give an answer to the above question. Upon further examination by counsel for appellant, Cathy Bradshaw was questioned regarding the reliance she would place upon the articles and treatises referred to by physicians who had previously testified on behalf of appellee. Counsel for appellee objected to the question arguing that the witness was not qualified to say what she would rely on as she was not a medical doctor. The witness was subsequently questioned outside the presence of the jury which testimony was tendered into the record as a proffer. The trial court subsequently ruled that the witness was not qualified to testify as to whether she would rely on those articles and treatises.\nAppellant argues that Cathy Bradshaw\u2019s testimony was not offered to render an opinion on the ultimate issue or to provide a diagnostic opinion of the cause of appellant\u2019s injury. Her testimony was offered for the limited purpose of demonstrating that the medical journals read into evidence by appellee\u2019s physician witnesses were outdated and not considered to be authoritative in the 1980\u2019s. Her testimony was further offered for the purpose of establishing that current medical evidence distinguishes the effects of different strains of the herpes virus. Her testimony would have shown that while herpes zoster may cause nerve damage, there were no documented medical cases where the herpes simplex virus had ever caused the type injury suffered by appellant.\nAt trial, the qualifications of Nurse Bradshaw were established as follows:\n(1) she was currently the Infection Control Practitioner at Jefferson Regional Medical Center in Pine Bluff, and had held that position for three years;\n(2) her job as Infection Control Practitioner was to research and maintain a knowledge of the most recent developments in the area of infections and infectious diseases;\n(3) she was trained as an Infection Control Practitioner at the Center for Disease Control in Atlanta, Georgia, which is the national institution and authority on infections and infectious diseases. There she attended a 320 hour course on infection control including specific lectures and training in the field of herpetic viral infections. Since that course, she had attended fourteen seminars and conferences on updates in infection control.\n(4) she regularly provides information to the doctors of Jefferson Regional Medical Center concerning the possible effects of herpetic viral infections, and regarding new developments in the infectious disease area.\n(5) she also acts as a consultant to doctors and area hospitals in South Arkansas in the field of infection control.\n(6) she has access to the National Library of Medicine Computer Data Bank and has been trained to accurately retrieve information from this source.\n(7) In addition to her special training in infectious diseases, she had been a registered nurse for eleven years.\nClearly, Cathy Bradshaw had knowledge of herpetic viral infections beyond that of persons of ordinary knowledge. Appellee\u2019s expert witnesses testified that they would rely on the Head of Infection Control at St. Vincent Infirmary for information concerning viral infections.\nNurse Bradshaw\u2019s testimony should have been admissible for the limited purpose of demonstrating that the authorities relied upon by appellee were considered obsolete; for the purpose of providing the jury with the most updated information available on the new effects of the herpes simplex viral strain; and for the purpose of providing an expert opinion on whether or not a herpes simplex virus could cause permanent nerve damage. If allowed to testify, Ms. Bradshaw would have established that her communications with the Center for Disease Control and her search of the National Library of Medicine Computer Bank did not reveal any documented cases where a herpes simplex viral strain had caused permanent nerve damage.\nA Texas Court of Appeals case is similar to the case at bar. In Johnson v. Hermann Hospital, 659 S.W.2d 124 (Tex. Civ. App. 1983), a fifteen-year old girl, after undergoing successful surgery to correct buck teeth, was transferred to Hermann Hospital\u2019s SICU II where she was breathing through an endotracheal tube. The nurses in SICU II were responsible for suctioning the tube with the use of special catheters to keep the airway open. Approximately two and one half hours following her transfer to SICU, Cheryl Johnson had a respiratory and cardiac arrest. She suffered permanent brain damage as a result of her brain being deprived of oxygen.\nAppellants brought suit contending that the nurse charged with caring for Cheryl in SICU was inexperienced in critical care nursing and was responsible for more patients than she could care for properly and adequately. Additionally, appellants contended Cheryl\u2019s airway was not adequately suctioned, allowing secretions to gradually accumulate and thicken, cutting off the air flow in the endotracheal tube and causing Cheryl\u2019s cardiac and respiratory arrest. Appellees contended the nurse in charge of Cheryl\u2019s care in SICU was qualified, was not over-burdened, and that the proper nurse-to-patient ratio for step down SICU was maintained. Appellees further contended that Cheryl\u2019s injuries were the result of a sudden and acute episode wherein the endotracheal tube suddenly kinked or suddenly became obstructed by the rapid accumulation of secretions within the tube.\nAt the trial, medical experts were called by each side. At the close of appellees\u2019 evidence, appellants sought to introduce portions of the deposition of Nurse Wanda Karcher in rebuttal. Appellees objected and appellants read portions of the deposition into the record outside of the presence of the jury. The court sustained appellees\u2019 objection.\nAppellees asserted Karcher\u2019s testimony was inadmissible because she testified to facts about which she had no personal knowledge, and she was not qualified as an expert witness.\nThe opinion recited that Nurse Karcher was called as a rebuttal witness to testify as to the proper standards of care for patients by nurses in SICU\u2019s. Karcher\u2019s testimony revealed that she had had extensive experience in the care of patients using endotracheal tubes and in the proper method of suctioning those tubes.\nThe Texas Appeals Court reversed and remanded stating:\nAlthough Karcher was not an RN at the time she gave her testimony, she was qualified to testify because of her experience. Nonphysicians may qualify as medical experts by virtue of special experience. Warren v. Hartnett, 561 S.W.2d 860 (Tex.Civ.App.\u2014Dallas 1977, writ refd n.r.e.).\nThe Texas court quoted from a previous decision which stated: \u201cIt is a fundamental rule that either party is entitled to introduce testimony to rebutt [sic] evidence introduced by his adversary.\u201d Lumbermen\u2019s Lloyds v. Jones, 264 S.W.2d 759, 761 (Tex.Civ.App.\u2014Texarkana 1954) rev\u2019d on other grounds 153 Tex. 379, 268 S.W.2d 909 (1954); Southern Pacific Transportation Co. v. Peralez, 546 S.W.2d 88 (Tex.Civ.App.\u2014Corpus Christi 1976, writ refd n.r.e.). It was further noted by the Texas Court of Appeals that the testimony of Nurse Karcher was offered in rebuttal. \u201cAlthough some of her testimony may have been inadmissible in appellants\u2019 case in chief, testimony which is inadmissible in the first instance may become relevant and admissible in rebuttal.\u201d\nIn the case at bar it is clear that Nurse Bradshaw\u2019s testimony would not have been admissible in appellant\u2019s case in chief; however, it became relevant and admissible evidence on rebuttal which the jury was entitled to consider and weigh. Of course, the witness was not qualified to make a diagnosis of appellant\u2019s injury and the causation thereof.\nAppellees assert that part of Nurse Bradshaw\u2019s testimony concerning her making inquiries, by telephone and through a computer linkup regarding causation of permanent nerve damage, was clearly hearsay. However, it is well settled that an expert may base his opinion on facts learned from others despite their being hearsay. Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978). In Arkansas State Highway Commission v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985), we cited Ark. Unif. R. Evid. 703, which provides:\nBasis of opinion testimony by experts. \u2014 The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.\nWe noted that under this rule an expert must be allowed to disclose to the trier of fact the basis facts for his opinion, as otherwise the opinion is left unsupported in midair with little if any means for evaluating its correctness. The relative weakness or strength of the factual underpinning of the expert\u2019s opinion goes to the weight and credibility, rather than admissibility. See, Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907 (1976).\nIn conclusion we hold that the trial court abused its discretion in refusing to qualify Nurse Bradshaw as an expert in her field. Her testimony reveals that she was sufficiently familiar by virtue of her training and experience in the area of infectious diseases. Furthermore, her testimony was offered in rebuttal and not for the purpose of diagnosing appellant\u2019s injury or its cause.\nReversed and remanded.\nCooper and Glaze, JJ., agree.", "type": "majority", "author": "Donald L. Corbin, Judge." } ], "attorneys": [ "Gill, Johnson, Gill & Gill, by: B. Kenneth Johnson, for appellant.", "Friday, Eldredge & Clark, by: John Dewey Watson and Kevin A. Crass, for appellee." ], "corrections": "", "head_matter": "Damon H. CARTER v. ST. VINCENT INFIRMARY\nCA 84-409\n690 S.W.2d 741\nCourt of Appeals of Arkansas Division II\nOpinion delivered June 12, 1985\nGill, Johnson, Gill & Gill, by: B. Kenneth Johnson, for appellant.\nFriday, Eldredge & Clark, by: John Dewey Watson and Kevin A. Crass, for appellee." }, "file_name": "0169-01", "first_page_order": 191, "last_page_order": 198 }