{
  "id": 1881028,
  "name": "Mike BLANKENSHIP and Tina Blankenship v. Hugh BURNETT",
  "name_abbreviation": "Blankenship v. Burnett",
  "decision_date": "1991-02-11",
  "docket_number": "90-240",
  "first_page": "469",
  "last_page": "473",
  "citations": [
    {
      "type": "official",
      "cite": "304 Ark. 469"
    },
    {
      "type": "parallel",
      "cite": "803 S.W.2d 539"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "642 S.W.2d 525",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1982,
      "opinion_index": 0
    },
    {
      "cite": "277 Ark. 406",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1750255
      ],
      "year": 1982,
      "opinion_index": 0,
      "case_paths": [
        "/ark/277/0406-01"
      ]
    },
    {
      "cite": "303 Ark. 641",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1882696
      ],
      "weight": 2,
      "year": 1990,
      "opinion_index": 0,
      "case_paths": [
        "/ark/303/0641-01"
      ]
    },
    {
      "cite": "Ark. Code Ann. \u00a7\u00a7 16-114-201",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 416,
    "char_count": 7614,
    "ocr_confidence": 0.843,
    "pagerank": {
      "raw": 1.593321985288594e-07,
      "percentile": 0.6824255004828467
    },
    "sha256": "64ac9203e4d612cb0875e49bcdd8191d89172480458a364f22ddf4c36ae5faa3",
    "simhash": "1:42e2953f5c8ad1a1",
    "word_count": 1228
  },
  "last_updated": "2023-07-14T15:15:14.712931+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Glaze, J., concurs."
    ],
    "parties": [
      "Mike BLANKENSHIP and Tina Blankenship v. Hugh BURNETT"
    ],
    "opinions": [
      {
        "text": "Jack Holt, Jr., Chief Justice.\nThis is a medical malpractice case in which the appellants, Mike and Tina Blankenship, contend that the trial court erred in refusing to give either of their tendered jury instructions on the theory of \u201clost chance.\u201d We disagree and affirm.\nOn March 23, 1985, Mike Blankenship was involved in a motorcycle accident in which he sustained severe injuries to his left leg and foot.\nMr. Blankenship was initially taken to St. Mary\u2019s Hospital in Russellville, but was subsequently transferred to Baptist Medical Center in Little Rock, where, in the course of his stay, he was treated by the appellee, Dr. Hugh Burnett, a vascular surgeon. The leg was later amputated below the knee.\nThe Blankenships filed suit against Dr. Burnett alleging that he was negligent in failing to properly diagnose and treat arterial insufficiency (insufficient blood flow) in the area of Mr. Blankenship\u2019s injury and that such failure led to progressive gangrene and the eventual amputation of Mr. Blankenship\u2019s left leg. Alternatively, the Blankenships alleged, under the theory of \u201clost chance,\u201d that Dr. Burnett\u2019s negligence deprived Mr. Blankenship, within \u201creasonable medical probability,\u201d of a substantial chance to save the leg.\nThe jury returned a verdict in favor of Dr. Burnett and from its decision, comes this appeal.\nThe theory of \u201clost chance,\u201d as espoused by the Blankenships, proposes that because Dr. Burnett was negligent in failing to properly diagnose and treat Mike Blankenship for arterial insufficiency, he substantially reduced the chance of saving Mr. Blankenship\u2019s leg. The Blankenships presented testimony with regard to this theory of recovery through their expert witness, Dr. Robert Atnip. They contend the trial court\u2019s refusal to submit at least one of their proposed instructions on \u201clost chance\u201d was reversible error.\nThe proffered instructions comprised two variations of AMI 203. AMI 203, which was submitted to the jury in its original form, read:\n[Mike and Tina Blankenship] claim damages from [Dr. Hugh Burnett] and have the burden of proving each of three essential propositions:\nFirst, that they have sustained damages;\nSecond, that [Dr. Burnett] was negligent; and\nThird, that such negligence was a proximate cause of [the plaintiffs\u2019] damages.\nIf you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for [the plaintiffs], but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for [Dr. Hugh Burnett].\nThe Blankenships\u2019 proffered instructions changed the third proposition of AMI 203, the first of which stated:\nThird, that such negligence was a proximate cause of Mike Blankenship\u2019s damages or the negligence of the defendant, Dr. Burnett, substantially reduced the chance of saving Mike Blankenship\u2019s left leg.\nThe other instruction provided:\nThird, that such negligence of the defendant, Dr. Burnett, substantially reduced the chance of saving the Plaintiff\u2019s left leg.\nIn refusing the proffered instructions, the trial court stated: \u201cThe reason the court is rejecting Plaintiffs\u2019 proposed 1 and 2 is that the briefs and the precedents cited by Plaintiff are cases that are prior to the Arkansas Medical Malpractice Act; and 1501,1 think is the only instruction that the court is allowed to give; and that\u2019s what the court is giving in this case.\u201d\nAlthough the trial court mentioned AMI 1501 (which concerns the applicable standard of care) as \u201cthe only instruction that the court is allowed to give,\u201d it is obvious that the court meant that only model jury instructions could be given. This was evident from the court\u2019s statement to the Blankenships\u2019 counsel that \u201c. . . [the jury] may treat that as part of a standard of care, this lost chance, but I think your only instruction is what is provided by AMI,\u201d and the fact that the court did give an array of AMI instructions.\nThe trial court expressed its concern that the jury be instructed as to the plaintiffs\u2019 burden of proof, in accordance with the Arkansas Medical Malpractice Act of 1979, now codified at Ark. Code Ann. \u00a7\u00a7 16-114-201 through 209 (1987 and Supp. 1989). Section 16-114-206(a) specifies that in any action for medical injury, the plaintiff must prove the applicable standard of care; that the medical provider failed to act in accordance with that standard; and that such failure was a proximate cause of the plaintiffs injuries. These requirements are reflected in the Arkansas Model Jury Instructions 203, 1501, and 501 which were given by the trial court.\nThe trial court\u2019s remarks were overbroad in declaring that the Blankenships were confined to use of AMI instructions only, since modifications of the AMI or other instructions may be given under appropriate circumstances. The court was correct, however, in ruling that the instructions must accurately reflect the statutory burden of proof requirements. Here, the proposed modifications of AMI 203 did not accurately state the plaintiffs\u2019 burden of proof as to proximate cause.\nThe use of the word \u201cor\u201d in the first instruction implies that a showing of proximate cause is necessary to prove negligence, but not to prove entitlement to damages under the \u201clost chance\u201d theory. The second proposed instruction makes no mention of proximate cause at all.\nA trial court need not give an instruction that needs explanation, modification, or qualification. Newman v. Crawford Const. Co., 303 Ark. 641, 799 S.W.2d 531 (1990). Also, when instructions are requested that do not conform to the Arkansas Model Jury Instructions, they should be given only when the trial judge finds the AMI instructions do not contain an essential instruction or do not accurately state the law applicable to the case. Id; see also our Per Curiam Order dated April 19,1965. It is clear to us that the submission of AMI 203, in its standard form, correctly instructed the jury as to the burden of proof to be met under any theory of recovery in a medical malpractice action, including the Blankenships\u2019 theory of \u201clost chance.\u201d\nEach party has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 642 S.W.2d 525 (1982). It was not error for the trial court to have refused proffered instructions where the model instructions accurately stated the law and where the proposed instructions were potentially misleading.\nAffirmed.\nGlaze, J., concurs.",
        "type": "majority",
        "author": "Jack Holt, Jr., Chief Justice."
      },
      {
        "text": "Tom Glaze, Justice,\nconcurring. I concur. In my view, Dr. Atnip\u2019s testimony did not support a \u201closs of chance\u201d instruction. As appellant points out, Dr. Atnip\u2019s opinion reflects that, without the arteriogram and an attempt to repair the circulatory insufficiency, the chance of saving Mr. Blankenship\u2019s leg was \u201cextremely small.\u201d On the other hand, he said if Dr. Burnett had performed the arteriogram in accordance with the established standard of care, the amputation of Mr. Blankenship\u2019s leg could have been avoided to \u201ca reasonable medical probability.\u201d Dr. Atnip offered no percentage of chance of loss due to Dr. Barnett\u2019s failure to perform the arteriogram. In light of Dr. Atnip\u2019s testimony, I believe the trial court\u2019s decision to give AMI 203 was a correct one.",
        "type": "concurrence",
        "author": "Tom Glaze, Justice,"
      }
    ],
    "attorneys": [
      "Robert S. Blatt and Morgan & Eisenbraun, for appellant.",
      "Friday, Eldredge & Clark, by: Laura Hensley Smith, for appellee."
    ],
    "corrections": "",
    "head_matter": "Mike BLANKENSHIP and Tina Blankenship v. Hugh BURNETT\n90-240\n803 S.W.2d 539\nSupreme Court of Arkansas\nOpinion delivered February 11, 1991\nRobert S. Blatt and Morgan & Eisenbraun, for appellant.\nFriday, Eldredge & Clark, by: Laura Hensley Smith, for appellee."
  },
  "file_name": "0469-01",
  "first_page_order": 517,
  "last_page_order": 521
}