{ "id": 4016541, "name": "Howard & Zettie NASH, Individually & as Guardians of Roderick Nash v. Brad HENDRICKS, Lamar Porter, Brad Hendricks Law Firm, P.A.", "name_abbreviation": "Nash v. Hendricks", "decision_date": "2007-02-22", "docket_number": "06-968", "first_page": "60", "last_page": "73", "citations": [ { "type": "official", "cite": "369 Ark. 60" }, { "type": "parallel", "cite": "250 S.W.3d 541" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "11 F.3d 791", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11321388 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/f3d/11/0791-01" ] }, { "cite": "820 F. Supp. 449", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7404738 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/f-supp/820/0449-01" ] }, { "cite": "974 F. Supp. 500", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 930712 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "504" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/f-supp/974/0500-01" ] }, { "cite": "761 F. Supp. 665", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7386475 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/f-supp/761/0665-01" ] }, { "cite": "904 F.2d 450", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10537424, 10537383 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "451" }, { "page": "451" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/f2d/904/0450-02", "/f2d/904/0450-01" ] }, { "cite": "105 S.Ct. 3505", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1985, "opinion_index": 0 }, { "cite": "472 U.S. 1029", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1512355, 1512547, 1512357, 1512394, 1512427, 1512270, 1512564, 1512247, 1512441, 1512539, 1512316, 1512413, 1512383 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/472/1029-10", "/us/472/1029-04", "/us/472/1029-11", "/us/472/1029-08", "/us/472/1029-12", "/us/472/1029-01", "/us/472/1029-07", "/us/472/1029-09", "/us/472/1029-06", "/us/472/1029-13", "/us/472/1029-02", "/us/472/1029-03", "/us/472/1029-05" ] }, { "cite": "753 F.2d 202", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 292598 ], "opinion_index": 0, "case_paths": [ "/f2d/753/0202-01" ] }, { "cite": "75 F.3d 426", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 750 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "428-29" } ], "opinion_index": 0, "case_paths": [ "/f3d/75/0426-01" ] }, { "cite": "59 F.3d 26", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 179308 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/f3d/59/0026-01" ] }, { "cite": "112 F.3d 299", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 854932 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/f3d/112/0299-01" ] }, { "cite": "125 F.3d 800", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 910691 ], "year": 1997, "pin_cites": [ { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/f3d/125/0800-01" ] }, { "cite": "481 U.S. 681", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6220447 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/us/481/0681-01" ] }, { "cite": "340 U.S. 135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6930903 ], "weight": 6, "year": 1950, "pin_cites": [ { "page": "146" }, { "page": "136-37" }, { "page": "137" }, { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/us/340/0135-01" ] }, { "cite": "28 U.S.C. \u00a7\u00a7 2674-2675", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "opinion_index": 0 }, { "cite": "28 U.S.C. \u00a7 2671", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "351 Ark. 479", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158927 ], "weight": 7, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/351/0479-01" ] }, { "cite": "351 Ark. 305", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158885 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/351/0305-01" ] }, { "cite": "347 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683213 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/347/0105-01" ] }, { "cite": "351 Ark. 630", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158895 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/351/0630-01" ] }, { "cite": "328 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50407 ], "weight": 4, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0001-01" ] }, { "cite": "367 Ark. 193", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3695489 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/367/0193-01" ] }, { "cite": "346 Ark. 279", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111329 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0279-01" ] }, { "cite": "28 U.S.C. \u00a7 2675", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1088, "char_count": 27674, "ocr_confidence": 0.759, "pagerank": { "raw": 2.124355886897383e-07, "percentile": 0.764970274328735 }, "sha256": "45066b1b33a45ca92afdc9aaedcfd0285815ec567f0ce4fa0bc615e58f809602", "simhash": "1:ea60d8b645b80711", "word_count": 4683 }, "last_updated": "2023-07-14T18:01:48.941240+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Howard & Zettie NASH, Individually & as Guardians of Roderick Nash v. Brad HENDRICKS, Lamar Porter, Brad Hendricks Law Firm, P.A." ], "opinions": [ { "text": "Jim Hannah, Chief Justice.\nAppellant Howard Nash, individually, and as special administrator for the Estate of Roderick Nash, Deceased, appeals the order of the Pulaski County Circuit Court, Third Division, granting summary judgment in favor of appellees Brad Hendricks, Lamar Porter, and Brad Hendricks Law Firm, P.A. (collectively referred to as Hendricks Law Firm or law firm). On appeal, Mr. Nash argues that the circuit court (1) abused its discretion in refusing to permit a separate hearing to hear evidence on a motion for recusal prior to ruling on the merits of a summary-judgment motion, where an evidentiary hearing had been requested, (2) erred in granting summary judgment as a matter of law in a legal-malpractice lawsuit where legal experts had submitted disputing affidavits as to the defendant lawyers\u2019 breaches of the applicable standard of care, and (3) erred in granting Hendricks Law Firm\u2019s motion for summary judgment on statute-of-limitations grounds. Although this case was originally filed in the court of appeals, we assumed jurisdiction of the case as it involves questions that arise under the power of the supreme court to regulate the practice of law. See Ark. Sup. Ct. R. l~2(a)(5). We affirm.\nThe facts underlying the case are as follows. Roderick Nash was a military serviceman who was injured in a motor vehicle accident while off his marine base in California. Roderick suffered severe injuries, including trauma to his brain. He was later transported to Arkansas for rehabilitation, diagnosis, and treatment.\nOn January 17, 1995, Roderick underwent a brain biopsy procedure at McClellan Veterans Administration Hospital in Little Rock. The procedure was performed by Charles Teo, M.D., and assisted by Anthony Russell, M.D. However, the brain biopsy was performed on the wrong side. After the biopsy was performed, Warren Stringer, M.D., interpreted radiological studies of Roderick\u2019s brain. Subsequently, Howard and Zettie Nash, Roderick\u2019s parents, were appointed as co-guardians of Roderick\u2019s estate and retained the Brad Hendricks Law Firm to represent their son in a medical-malpractice lawsuit against Drs. Teo, ' Russell, and Stringer.\nA medical-malpractice complaint naming Drs. Teo, Russell, and Stringer as defendants was filed in Pulaski County Circuit Court on December 31, 1996. According to the Hendricks Law Firm, the complaint was filed in Pulaski County Circuit Court to determine if the physicians were government employees or private physicians when they provided services at the VA. The law firm states that the complaint was not intended to file a federal-tort-claim lawsuit.\nThe lawsuit was later removed to the United States District Court, Eastern District of Arkansas, and in an order entered on August 11, 1997, the district court found that Drs. Teo andRussell were employed by the VA and were acting within the scope of their employment during the relevant time of the alleged medical malpractice. Accordingly, the district court concluded that the United States of America must be substituted as the proper defendant in the place of Drs. Teo and Russell. The district court then found that an administrative-tort claim had not been made to the VA, as required by 28 U.S.C. \u00a7 2675(a). Concluding that it did not have subject-matter jurisdiction over the United States, the district court dismissed the case. The district court also determined that it lacked jurisdiction over Dr. Stringer, who was determined to be a private physician, and remanded the case against him back to the circuit court.\nThe Hendricks Law Firm did not file an administrative-tort claim, nor did the law firm commence prosecution of the suit against Dr. Stringer. Instead, the law firm terminated its attorney-client relationship with the Nashes. In a letter to the Nashes, attorney Lamar Porter explained that the federal court had terminated the claims against Drs. Teo and Russell, based on the fact that they were employees of the federal government at the time of the alleged malpractice. Porter stated that the law firm saw no reason to appeal that decision and that if the Nashes desired to appeal, then they should contact another attorney. The letter also explained that the federal-court order of dismissal was entered on August 12,1997; thus, the Nashes would have thirty days from that date to appeal.\nAdditionally, Porter stated that the case against the radiologist, Dr. Stringer, was being sent back to state court. Porter stated that, because Dr. Stringer did not interpret the x-rays until after the biopsy had already been completed, the firm would be non-suiting the case in state court. Finally, Porter explained that the nonsuit would allow the case against Dr. Stringer to be refiled within one year in the event the Nashes hired another attorney to pursue the case.\nThe time for filing an administrative-tort claim subsequently lapsed. The Nashes then retained counsel to pursue a legal-malpractice lawsuit in Pulaski County Circuit Court and had a guardian appointed for Roderick. The suit was filed on August 5, 2004. Discovery was taken, and during that time, the Nashes learned that the circuit judge\u2019s father had previously represented one of the appellees in a legal-malpractice lawsuit.\nThe Hendricks Law Firm filed a motion for summary judgment on February 8, 2006. The Nashes responded and later moved for recusal, requesting an evidentiary hearing and an opportunity to conduct additional discovery. The law firm moved to strike the expert affidavit submitted by the Nashes. A hearing was held on the various motions on May 1, 2006. On May 15, 2006, the circuit court denied the Nashes\u2019 motion for recusal and request for evidentiary hearing, denied the motion for additional discovery, denied the motion to strike the Nashes\u2019 expert affidavit, and granted summary judgment in favor of the Hendricks Law Firm.\nIn the order granting summary judgment, the circuit court ruled that the Nashes could not have prevailed on their medical-malpractice lawsuit due to the application of the Feres doctrine. Further, the circuit court determined that the statute of limitations had run on the legal-malpractice lawsuit.\nOn May 16, 2006, Roderick died. An order was entered on June 12, 2006, substituting Howard Nash as special administrator and reviving the lawsuit. This appeal followed.\nMr. Nash first argues that the circuit court abused its discretion in refusing to grant a separate hearing to hear evidence on a motion for recusal prior to ruling on the merits where an evidentiary hearing had been requested. Mr. Nash filed a motion for recusal and request for evidentiary hearing on April 28, 2006, at 2:53 p.m., which was the Friday afternoon prior to the Monday, May 1, 2006 hearing on the summary-judgment motion. The motion for recusal was based on the stated facts that appellee Lamar Porter was previously represented by the Honorable James Moody, the circuit court judge\u2019s father, in a legal-malpractice action when both the Honorable James Moody and the circuit court judge were previously attorneys employed at the law firm Wright, Lindsey & Jennings. The circuit court denied the motion to recuse.\nOn May 1, 2006, prior to hearing arguments on the Hendricks Law Firm\u2019s summary-judgment motion, the circuit court heard arguments on the recusal motion, and the following colloquy took place between counsel for Mr. Nash and the circuit court:\nThe Court: Well, you had indicated that you had some request for an evidentiary hearing. I\u2019m not sure what you are requesting because I think it\u2019s my understanding that the first time that my father\u2019s involvement in this case would have come to your attention would have been October of\u201904, in response to interrogatories.\nCounsel: That\u2019s correct.\nThe Court: So we\u2019re a year and some months later. And so I\u2019m prepared for you to put on your record whatever you want to put on, to bring something that\u2019s not in the pleadings to my attention regarding the recusal. Are you prepared to do that at this time?\nCounsel: I\u2019m not \u2014 I didn\u2019t bring any witnesses with me today, your Honor. But I think that Mr. Nash is entitled to take the deposition of Mr. Lamar Porter and anyone else in that law firm as to who was representing them during this period of time.\nThe Court: Well, Mr. Wallace, I would agree. But you\u2019ve had a year \u2014 over a year to do that. And I don\u2019t think it\u2019s appropriate to bring up that issue on the eve of a motion for summary judgment to delay those proceedings when you\u2019ve had ample time to do that, because I\u2019m not aware of anything new that\u2019s come up in your pleadings since the response in, I believe, October of 2004 that my father had previously represented Mr. Porter.\nCounsel: That\u2019s correct, your Honor.\nThe Court: And so I guess my question is, why haven\u2019t you done something before?\nCounsel: Because we haven\u2019t been before this Court on a motion for summary judgment until today.\nThe Court: I understand that. But you knew I was going to be the judge in this case on the day you filed the lawsuit.\nCounsel: Your Honor, Mr. Nash has no problem, and he would waive any question about you serving as judge if we were not here today at this hour on their motion for summary judgment. They\u2019re asking you to rule on a matter of fact.\nThe Court: Well, I am going to give you an opportunity to put on whatever evidence you have today, but I\u2019m not going to postpone this hearing pending discovery that you might make on an issue that you\u2019ve been aware of for a year and a half. So I will give you that opportunity to do that now, and I understand that you may not be prepared to do that.\nI will state for the record, if it will help Mr. Nash, set his mind at ease, that it was not until the filing of this motion that I knew of anything about my father\u2019s representation of Lamar Porter nor, to my recollection, was I in any way involved in that case....\nI am not inclined to recuse just on the fact that roughly in excess of 10 years ago, my father represented somebody in a case that I wasn\u2019t familiar with. I\u2019m saying those [sic] in an effort to supplement your evidentiary situation, because I know I can\u2019t be deposed. But I feel it important for Mr. Nash\u2019s state of mind that he knows that I knew nothing about any of those things.\nMy father has been on the bench for 10 years, so I can tell you it was in excess of that that this representation would have happened. And I am pretty confident that that representation, at least to my knowledge, didn\u2019t have anything to do with the Nash[e]s, did it? I don\u2019t know.\nCounsel: No, it did not, your Honor.\nThe Court: So\u2014\nCounsel: Your Honor, as I read the Dolphin case, in Chiefjustice Arnold\u2019s opinion, I\u2019m entitled to take their deposition on that issue.\nThe Court: Yes, sir.\nCounsel: And I would\u2014\nThe Court: And I guess my position would be, yes, you are. But you\u2019ve waived that right by waiting a year and a half to do so, if we need \u2014 if we need \u2014 if I need to make a ruling on that. I acknowledge that you should be able to do that. But I don\u2019t know that you can wait until the Friday before a Monday summary judgment when you\u2019ve had that information for roughly- \u2014 well, you\u2019ve known since February, I guess, that the motion for summary judgment has been filed.\nCounsel: Yes, your Honor.\nThe Court: And a year and a half since that information has given rise and you knew I was going to be making some rulings in this case, evidentiary or otherwise at trial.\nCounsel: Yes, sir.\nThe Court: So I just want to make that record and acknowledge that I agree, you should be able to make some kind of discovery. But it should have been done prior to [to] day. So the motion for recusal and request for a continuance of this matter will be denied.\nA judge is presumed to be impartial. City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001). The party seeking recusal must demonstrate bias. Id. A hearing is necessary where requested and where there is more than a conclusory allegation that a judge is biased or otherwise subject to recusal. See Stilley v. Fort Smith Sch. Dist., 367 Ark. 193, 238 S.W.3d 902 (2006).\nJudges must refrain from presiding over cases in which they might be interested and must avoid all appearances of bias. Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997). However, we will not reverse a judgment on the basis of a trial judge\u2019s decision not to disqualify unless the judge has abused his or her discretion. Id. To decide whether there was an abuse of discretion, we review the record to determine if any prejudice or bias was exhibited. Id.\nHere, the circuit court gave Mr. Nash the opportunity to present evidence prior to the hearing on summary judgment; however, Mr. Nash had no evidence to present. Although Mr. Nash knew of the prior attorney-client relationship between one of the appellees and the circuit judge\u2019s father over a year prior to the filing of the motion, he waited until the last business day prior to the summary-judgment hearing to file the recusal motion. Despite the fact that the circuit judge concluded that the recusal motion was not timely, in an effort to \u201cset [Mr. Nash\u2019s] mind at ease,\u201d the circuit judge clearly set forth the reasons he did not have any prejudice or bias in the case and explained that he could fairly conduct a hearing on summary judgment. In sum, Mr. Nash has failed to demonstrate any prejudice or bias on the part of the circuit court. We hold that the circuit court did not abuse its discretion in denying Mr. Nash\u2019s motion for recusal.\nWe next turn to Mr. Nash\u2019s arguments regarding the circuit court\u2019s grant of summary judgment in favor of the Hendricks Law Firm. Summary judgment is to be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. See Vanderpool v. Pace, 351 Ark. 630, 97 S.W.3d 404 (2003). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. City of Barling v. Fort Chaffee Redevelopment Auth., 347 Ark. 105, 60 S.W.3d 443 (2001). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002).\nAn attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of a client. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). To prevail on a claim of attorney malpractice, a plaintiff must prove that the attorney\u2019s conduct fell below the generally accepted standard of practice and that such conduct proximately caused the plaintiff damages. Id. To prove damages and proximate cause, the plaintiff must show that, but for the alleged negligence of the attorney, the result in the underlying action would have been different. Id. In this respect, a plaintiff must prove a case within a case, as he or she must prove the merits of the underlying case as part of the proof of the malpractice case. Id. An attorney is not liable to a client when, acting in good faith, he or she makes mere errors of judgment. Id. Moreover, an attorney is not, as a matter of law, liable for a mistaken opinion on a point of law that has not been settled by a court of the highest jurisdiction and on which reasonable attorneys may differ. Id.\nTo address Mr. Nash\u2019s arguments in this case, we must begin with a brief explanation of the FTCA and the Feres doctrine. The Federal Tort Claims Act of 1946, codified at 28 U.S.C. \u00a7 2671, waived the traditional immunity from suit of the United States in its sovereign capacity. The FTCA provides for federal jurisdiction of claims against the United States for injuries negligently caused by government employees acting within the scope of their employment, if a private person would be liable under the same circumstances. 28 U.S.C. \u00a7\u00a7 2674-2675 (2000). In a series of decisions now known as the Feres doctrine, the United States Supreme Court established a judicially-created exception to the waiver of sovereign immunity in the FTCA, holding that the United States \u201cis not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.\u201d Feres v. United States, 340 U.S. 135, 146 (1950).\nIn Feres, a serviceman was killed by a fire in the barracks, and his estate sued the government for negligence. Id. at 136-37. Two companion cases, Jefferson v. United States, and United States v. Griggs, involved servicemen who were injured as a result of alleged negligence of Army doctors. Id. at 137. In barring all three claims, the Feres Court held that the United States remains immune from suit \u201cfor injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.\u201d Id. at 146. The United States Supreme Court has explained that an injury \u201cincident to service\u201d is an injury that occurs \u201cbecause of [a service member\u2019s] military relationship with the Government.\u201d United States v. Johnson, 481 U.S. 681, 689 (1987).\nMr. Nash argues that summary judgment cannot be granted as a matter of law in a legal-malpractice lawsuit where legal experts have submitted disputing affidavits as to the Hendricks Law Firm\u2019s breaches of the applicable standard of care. In support of their motion for summary judgment, the law firm submitted the affidavit of attorney William Martin. He opined that the Feres doctrine would bar Roderick\u2019s medical-malpractice claim. In response, Mr. Nash submitted the affidavit of attorney Peter Masciola who stated that the Hendricks Law Firm had failed to adequately research the law regarding the Feres doctrine and erroneously concluded that any FTCA claim by Roderick Nash would be barred because he was on active duty and received the subject medical care \u201cincident\u201d to his service. Mr. Nash contends that, based upon Masciola\u2019s affidavit alone, the question as to whether the Feres doctrine would have been a bar to filing a federal-tort claim and lawsuit on behalf of Roderick Nash is not an appropriate question for summary judgment. In other words, Mr. Nash contends that the issue is a question of fact. We disagree. \u201cThe question of whether the Feres doctrine is applicable to the facts reflected in the record of a case is a question of law reviewed de novo.\u201d Bowen v. Oistead, 125 F.3d 800, 803 (9th Cir. 1997); see also Jones v. United States, 112 F.3d 299 (7th Cir. 1997); Schomer v. United States, 59 F.3d 26 (5th Cir. 1995). Thus, the question of whether the Feres doctrine bars suit is not a question for the jury, as Mr. Nash suggests, but a question of law to be determined by the circuit court.\nIn its letter order, the circuit court made the following findings:\nThe Court is convinced that the following facts relevant to this motion are undisputed or, at least, have been decided as a matter of law by Judge Howard making them undisputable:\n1. Dr. Teo and Dr. Russell were civilian doctors contracted to provide services to the federal government acting within the scope of their employment and, thus, were employees of the United States.\n2. Roderick Nash was active duty military at the time of the alleged medical negligence.\n3. The medical services he received were extended to him as a result of his military status.\nTaking these undisputed facts and applying them to the law as set down by the Eighth Circuit Court of Appeals. . . the Court finds that the application of the Feres doctrine would have barred any recovery by the plaintiffs for damages resulting from Dr. Teo\u2019s or Dr. Russell\u2019s negligence.\nThis finding necessarily leads to the legal conclusion that the plaintiffs cannot sustain their burden of proof as a matter of law on the issue of proximate cause in the legal malpractice action. This ruling applies to any damages stemming from any action against Drs. Teo or Russell.\nNext, the defendants have moved for summary judgment on any claim for damages resulting from the failure of the defendants to properly pursue the plaintiff\u2019 claim against Dr. Stringer. The plaintiffs were required to meet proof with proof on the issue of Dr. Stringer\u2019s negligence but candidly admitted to a lack of such proof at the hearing.\nSince there is no proof upon which a fact finder could find negligence on the part of Dr. Stringer, the defendants\u2019 motion for summary judgment on the claim for damages resulting from Dr. Stringer\u2019s negligence is granted.\nWe must now determine whether the circuit court clearly erred in concluding that the Feres doctrine is a bar to suit in the instant case. The law firm argues that, because the medical-malpractice injury of Roderick Nash was clearly incident to service, any administrative claim filed on his behalf would have failed pursuant to the Feres doctrine.\nCourts have applied the Feres doctrine to bar medical-malpractice claims that arose from treatment by government doctors of active-duty personnel. In Cutshall v. United States, 75 F.3d 426 (8th Cir. 1996), the Eighth Circuit held that the claims of Corporal Cutshall, whose cancer was not discovered while undergoing treatment at a Navy medical facility, were barred by the Feres doctrine. In reaching its holding, the federal court found the following cases dispositive:\nIn Lampitt v. United States, 753 F.2d 202 (8th Cir.) (per curiam), cert. denied, 472 U.S. 1029, 105 S.Ct. 3505 (1985), this court held that Feres barred a medical suit brought by a serviceman, although the alleged tort had arisen when the serviceman was on convalescent leave. The serviceman had claimed Navy physicians had negligently performed surgery on him and had argued his injuries did not arise out of activity incident to service because he was not on active duty. Id. at 703. This court noted that the two companion cases to Feres related to medical malpractice where no recovery was allowed, and that courts have adhered to the view that surgical malpractice in the military comes within the bar of the Feres doctrine. Id. This court concluded that \u201c[t]he bottom line is that [the serviceman] seeks recovery for injury caused by the Navy doctors\u2019 negligence, both in their own conduct of the surgery and in their failure to secure the participation of [a civilian physician.] For that he cannot recover.\u201d Id. at 703.\nIn Bowers v. United States, 904 F.2d 450 (8th Cir. 1990), this court held that Feres barred a medical malpractice claim by an Air Force recruit. The Bowers plaintiff had cancer which was not diagnosed during a pre-induction physical at a military hospital, and his cancer continued untreated. Id. at 451. We concluded that Johnson required us to hold that the plaintiffs claim was barred under Feres, even though no military benefits were available to the plaintiff who was not a service member at the time of the alleged negligence. Id. at 451. We concluded that \u201ca court decision that the physicians who examined [the plaintiff] were negligent would have a direct effect upon military judgments and decisions.... [A]n effect on the allocation of military resources [which] is precisely the kind of thing that the Feres doctrine is supposed to prevent.\u201d Id. at 452.\nCutshall, 75 F.3d at 428-29.\nMr. Nash relies on C.R.S. v. United States, 761 F. Supp. 665 (D. Minn. 1991), where the court held that the Feres doctrine was not a bar to claims brought by plaintiffs arising out of a medical-malpractice incident even though one of the plaintiffs was on \u201cactive duty\u201d at the time of the incident. In C.R.S., a former member of the National Guard, his wife, and their child brought claims under the FTCA, alleging that they contracted AIDS due to the negligence of the United States in screening blood for HIV and in failing to notify the service member that he received infected blood. The court focused on three rationales underlying the Feres doctrine: that a uniform federal law regarding suits arising from military service is needed owing to the \u201cdistinctively federal\u201d relationship between the government and its military personnel; that suits for service-related injuries are prohibited because such injuries are presumed compensated by benefits provided by the Veterans\u2019 Benefits Act; and that permitting such suits would imperil decisions about national security and military missions. C.R.S., 761 F.Supp. at 667-68 (citing Feres, supra, and Johnson, supra). The court held that, because the claims \u201cfailed to invoke the three rationales supporting the Feres doctrine, the plaintiffs\u2019 claims are not barred.\u201d Id. at 668.\nMr. Nash argues that C.R.S. is clear authority for the proposition that the circuit court in this case cannot rule as a matter of law that Roderick Nash did not have an underlying FTCA claim. We disagree. In light of the decisions of the Eighth Circuit Court of Appeals, we believe that Roderick Nash\u2019s injury during surgery was incident to service; therefore, Mr. Nash\u2019s claim for medical malpractice is barred by the Feres doctrine. Thus, we hold that the circuit court did not clearly err in concluding that the Feres doctrine barred suit in this case. It follows that, because Mr. Nash could not have prevailed on his medical-malpractice claims, he cannot prove that, but for the Hendricks Law Firm\u2019s negligence, the outcome of the case would have been different. Therefore, Mr. Nash\u2019s legal-malpractice claim must fail. Because we have concluded that the Feres doctrine is applicable in this case, we need not address Mr. Nash\u2019s remaining arguments. We hold that the circuit court did not err in granting summary judgment in favor of the Hendricks Law Firm.\nAffirmed.\nTitle 28, section 2675(a) of the United States Code provides in part: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency....\nFeres v. United States, 340 U.S. 135 (1950). See discussion of the Feres doctrine infra.\nMr. Nash does not dispute the findings with respect to Dr. Stringer. Accordingly, our analysis will be confined to the claims against Drs.Teo and Russell.\nWe note that the C.R.S. decision has been criticized. In Minns v. United States, 974 F. Supp. 500, 504 (D. Md. 1997), the court stated that C.R. S. \u201cis called into question by the fact that the court allowed the serviceman to proceed on his own claim in contradiction to the clear holding of Feres.\u201d Further, the court stated:\nThe persuasive value of the initial district court opinion in C.R.S. is further eroded by the fact that the district court later ruled that all of the claims against the United States were barred by the discretionary function exception to the FTCA. C.R.S. v. United States, 820 F. Supp. 449 (D. Minn. 1993). The Eighth Circuit upheld the district court\u2019s grant ofsummaryjudgment in favor of the United States based on the discretionary function exception without considering the earlier ruling on the Feres doctrine. C.R.S. v. United States, 11 F.3d 791 (8th Cir. 1993).\n974 F.Supp. at 504.", "type": "majority", "author": "Jim Hannah, Chief Justice." } ], "attorneys": [ "Larry C. Wallace, for appellants.", "Barber, McCaskill, Jones & Hale, P.A., by: Robert L. Henry and Cynthia W. Kolb, for appellees." ], "corrections": "", "head_matter": "Howard & Zettie NASH, Individually & as Guardians of Roderick Nash v. Brad HENDRICKS, Lamar Porter, Brad Hendricks Law Firm, P.A.\n06-968\n250 S.W.3d 541\nSupreme Court of Arkansas\nOpinion delivered February 22, 2007\nLarry C. Wallace, for appellants.\nBarber, McCaskill, Jones & Hale, P.A., by: Robert L. Henry and Cynthia W. Kolb, for appellees." }, "file_name": "0060-01", "first_page_order": 84, "last_page_order": 97 }