{ "id": 130696, "name": "Ronnie D. FORD, Individually and as Personal Representative of the Estate of Ernie C. Ford, Deceased, and Terry G. Ford v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Internal Medicine Associates, P.A., Surgical Clinic of Northeast Arkansas, P.A., and Dr. Scott M. Kelly", "name_abbreviation": "Ford v. St. Paul Fire & Marine Insurance", "decision_date": "1999-12-09", "docket_number": "99-587", "first_page": "434", "last_page": "439", "citations": [ { "type": "official", "cite": "339 Ark. 434" }, { "type": "parallel", "cite": "5 S.W.3d 460" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "309 Ark. 491", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906041 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0491-01" ] }, { "cite": "244 Ark. 11", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717463 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/244/0011-01" ] }, { "cite": "319 Ark. 280", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453624 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0280-01" ] }, { "cite": "304 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881028 ], "weight": 3, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/304/0469-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-114-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "327 Ark. 329", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922809 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0329-01" ] }, { "cite": "877 S.W.2d 90", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1443753, 1443809 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0308-01", "/ark/317/0104-01" ] }, { "cite": "317 Ark. 308", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443753 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0308-01" ] }, { "cite": "330 Ark. 675", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298592 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0675-01" ] }, { "cite": "868 S.W.2d 660", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1997, "opinion_index": 0 }, { "cite": "315 Ark. 547", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910491 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/315/0547-01" ] }, { "cite": "961 S.W.2d 712", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 377552, 1604794 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0189-01", "/ark/331/0058-01" ] }, { "cite": "332 Ark. 189", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377552 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0189-01" ] } ], "analysis": { "cardinality": 554, "char_count": 8906, "ocr_confidence": 0.78, "pagerank": { "raw": 3.478530690952855e-07, "percentile": 0.8816089277791871 }, "sha256": "fcbe41cd87c05adf3ef26a73171d4dfc0bef0d8e4037386c7d2cce32df927a84", "simhash": "1:504684054fae21e9", "word_count": 1423 }, "last_updated": "2023-07-14T20:54:09.164159+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ronnie D. FORD, Individually and as Personal Representative of the Estate of Ernie C. Ford, Deceased, and Terry G. Ford v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Internal Medicine Associates, P.A., Surgical Clinic of Northeast Arkansas, P.A., and Dr. Scott M. Kelly" ], "opinions": [ { "text": "RAY THORNTON, Justice.\nAppellants Ronnie D. Ford and Terry ice. bring this wrongful-death action individually and on behalf of their deceased father, Ernie C. Ford, against the four appellees: St. Paul Fire & Marine Insurance Company, Internal Medicine Associates, P.A., Surgical Clinic of Northeast Arkansas, P.A., and Dr. Scott Kelly. Appellants contended that the appellees\u2019 delay in performing surgery on Mr. Ford\u2019s ruptured aneurysm constituted a \u201clost chance\u201d and should be recognized as an alternative theory of recovery for medical malpractice. The trial court granted summary judgment in favor of all four appellees because there was no expert testimony that Mr. Ford would have survived had medical intervention been rendered earlier, and therefore, the element of proximate cause was not established. Absent a showing of proximate cause, we do not decide the question of the applicability of the \u201clost chance\u201d doctrine. We affirm the trial court\u2019s ruling.\nOn January 3, 1996, at approximately 8:30 p.m., Mr. Ford suffered the onset of lower abdominal pain. At approximately 10:00 p.m., he arrived at the emergency room at St. Bernard\u2019s Regional Medical Center. Upon admission to the hospital, Mr. Ford was examined by appellee, Dr. Scott M. Kelly. After talking with Mr. Ford and after initial x-ray testing, Dr. Kelly diagnosed several medical problems as material to the abdominal pain. These diagnoses included an abdominal aortic aneurysm, dehydration, renal insufficiency, and an active infection.\nAt approximately 2:30 a.m., the patient was transferred to the care of Dr. Robert Burns, the on-call physician for Mr. Ford\u2019s primary-care physician and agent of appellee, Internal Medicine Associates of Jonesboro, P.A. Dr. Burns ordered Mr. Ford\u2019s admission and proceeded to the emergency room to evaluate him. After noting that the patient was in less pain than reported on admission, Dr. Burns consulted with Dr. Russell Degges, an agent of appellee, Surgical Clinic of Arkansas P.A., who agreed with a plan of action, which included a further assessment of the abdominal aortic aneurysm by ultrasound.\nAt approximately 5 a.m., Dr. Burns ordered an ultrasound for Mr. Ford, who had been placed in the Women\u2019s Diagnostic Center wing at the hospital where his blood pressure and pulse rate continued to be monitored. While awaiting the ultrasound, Mr. Ford\u2019s leaking aneurysm burst, sending him into shock. He was rushed to the emergency room where surgery was performed to repair the ruptured aneurysm. Mr. Ford, who was seventy-three years old, survived the surgery but died later that day.\nSummary judgment is appropriate when there is no genuine question of material fact to be litigated. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 660 (1997). Once the moving party established a prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet \u201cproof with proof\u2019 and demonstrate a genuine issue of material fact. Sanders v. Bailey Community Human Services Public Facilities Board, 330 Ark. 675, 956 S.W.2d 187 (1997). On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Keller v. Safeco Ins. Co. of Am., 317 Ark. 308, 877 S.W.2d 90 (1994). Any doubts and inferences must be resolved against the moving party. Kelly v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997).\nThe Arkansas Medical Malpractice Act is codified at Ark. Code Ann. \u00a7 16-114-201 through 209 (1987). In Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991), we stated:\nSection 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 plaintiff\u2019s injuries.\nId. The statute implements the traditional tort standard of requiring proof that \u201cbut for\u201d the tortfeasor\u2019s negligence, the plaintiff\u2019s injury or death would not have occurred.\nWe have held that the proof required to survive a motion for summary judgment in a medical malpractice case must be in the form of expert testimony. Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995). It is simply not enough for an expert to opine that there was negligence which was the proximate cause of the alleged damages. Aetna Casualty & Surety Co. v. Pilcher, 244 Ark. 11, 424 S.W.2d 181 (1968). The opinion must be stated within a reasonable degree of medical certainty or probability. Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992).\nWhen summary-judgment motions are at issue, we must view the evidence in the light most favorable to the party opposing the motion, but there is nothing before us to suggest that any genuine issue of material fact was left unanswered. Two surgeons, Dr. Degges and his colleague, Dr. Ken Jones, supplied affidavits with the following information:\n1. Repairing an abdominal aortic aneurysm is risky at best;\n2. Mr. Ford\u2019s age, active infection, renal insufficiency, and hypertension make his risks even higher than normal.\nBoth experts further testified by affidavit that Mr. Ford probably would not have survived the surgery had it been performed earlier.\nThe testimony from appellants\u2019 expert witness, Dr. Charles Van Way, may be summarized as follows:\n1. He could not say with any degree of medical certainty that, if operated on when he arrived at the hospital, Mr. Ford would have survived;\n2. Mr. Ford had higher risks than usual because of his age, renal impairment, and other medical problems;\n3. The overall success rate is 50/50 for surgery on patients whose aneurysm has ruptured, and the chances of survival dechne the longer the aneurysm bleeds;\n4. He did not think that anyone could determine the risks of Mr. Ford, or whether he would have survived if operated on sooner.\nDr. Van Way concluded that he could not state with any reasonable degree of medical certainty or probability that Mr. Ford would have survived an earlier surgery.\nAppellants did not offer any additional affidavits or evidence in opposition to the summary judgment. Under Arkansas case law concerning the opposing party\u2019s burden in summary-judgment proceedings, appellants did not meet the \u201cproof with proof\u2019 as to a genuine issue of material fact left unanswered. Rather, they relied solely on the testimony of Dr. Charles Van Way, who could not say with a reasonable degree of medical certainty that, but for the delay of the surgery, Mr. Ford would have survived. Although Mr. Ford did not undergo surgery for a ruptured aneurysm for approximately eight hours after his admittance to the hospital, no evidence was provided that Mr. Ford\u2019s eight-hour delay was unusual, or that appellees failed to meet the appropriate standard of care.\nDr. Van Way further testified that Mr. Ford\u2019s condition was much worse than that of an average patient. Dr. Van Way testified that Mr. Ford had hypertension, a history of atherosclerosis, prior carotid artery surgery, the possible presence of a urinary tract infection, a prior history of smoking, a possible chronic obstructive pulmonary disease, and renal impairment. According to Dr. Van Way, the renal impairment alone would have doubled the risk of surgery. Under these circumstances, there was no proof that a delay in performing surgery was the proximate cause of Mr. Ford\u2019s death.\nGiven appellants\u2019 failure to meet \u201cproof with proof,\u201d coupled with three expert witnesses who did not establish proximate cause, the trial court correctly granted summary judgment in favor of appellees. Accordingly, the trial court\u2019s order awarding summary judgment is affirmed.\nAffirmed.", "type": "majority", "author": "RAY THORNTON, Justice." } ], "attorneys": [ "Blair Arnold; and William T. Bernard, for appellant.", "Barrett & Deacon, by: D.P. Marshall Jr. and James D. Bradbury, for appellee St. Paul Fire & Marine Insurance Company.", "Friday, Eldredge & Clark, by: William M. Griffin III and Joseph P. McKay, for appellee Internal Medicine Associates, P.A.", "Womack, Landis, Phelps, McNeill & McDaniel, by Paul D. McNeill and Jeffrey L. Singleton, for appellee Surgical Clinic of Northeast Arkansas, P.A.", "Lyons, Emerson & Cone, P.L.C., by: Jim Lyons, for appellee Dr. Scott Kelly." ], "corrections": "", "head_matter": "Ronnie D. FORD, Individually and as Personal Representative of the Estate of Ernie C. Ford, Deceased, and Terry G. Ford v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Internal Medicine Associates, P.A., Surgical Clinic of Northeast Arkansas, P.A., and Dr. Scott M. Kelly\n99-587\n5 S.W.3d 460\nSupreme Court of Arkansas\nOpinion delivered December 9, 1999\nBlair Arnold; and William T. Bernard, for appellant.\nBarrett & Deacon, by: D.P. Marshall Jr. and James D. Bradbury, for appellee St. Paul Fire & Marine Insurance Company.\nFriday, Eldredge & Clark, by: William M. Griffin III and Joseph P. McKay, for appellee Internal Medicine Associates, P.A.\nWomack, Landis, Phelps, McNeill & McDaniel, by Paul D. McNeill and Jeffrey L. Singleton, for appellee Surgical Clinic of Northeast Arkansas, P.A.\nLyons, Emerson & Cone, P.L.C., by: Jim Lyons, for appellee Dr. Scott Kelly." }, "file_name": "0434-01", "first_page_order": 456, "last_page_order": 461 }