Summary judgment based on proximate cause affirmed in malpractice case

The Arkansas Court of Appeals affirmed summary judgment granted in favor a surgeon.  Black v. Rowen, 2013 Ark. App. 349.  (Here is the link: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316114/Electronic.aspx )

The plaintiff alleged the surgeon lacked the skill to deal with an intraoperative complication, and was negligent in failing to promptly call for assistance.   The opinion recites the standard of review for summary judgment, and the elements that must be proven in a medical negligence case, including the element of proximate cause:

Proximate causation is an essential element for a cause of action in negligence. “Proximate cause” is defined, for negligence purposes, as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Although proximate causation is usually a question of fact for a jury, where reasonable minds cannot differ, a question of law is presented for determination by the court.

But in spite of the admonition that proximate cause is usually a question of fact for a jury, the Court of Appeals in this decision affirmed summary judgment, holding there was a lack of proof on how the injury was sustained and that calling a qualified surgeon sooner would have prevented the damages.

Commentary:  Juries are the arbiters of disputed facts.  Here, there seems to be ample proof to submit the case to a jury.  Proximate cause is a unique element.   It is rarely susceptible to direct proof.   It is often inferred as the essential link between the proven negligence and damages.

“Our case law is replete with the proposition that causation is almost always a question of fact for the jury and not appropriate for summary judgment.” Green v. Alpharma, 373 Ark. 378, 395, 284 S.W.3d 29, 42 (2008), citing Southeastern Distributing Co. v. Miller Brewing Co., 366 Ark. 560, 237 S.W.3d 63 (2006); Miller Brewing Co. v. Roleson Inc., 365 Ark. 38, 223 S.W.3d 806 (2006); Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003); and Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002).    

Without the benefit of the expert affidavits and deposition testimony, it is impossible to fully evaluate exactly what proof was submitted.  However, the excerpt from the plaintiff’s affidavit at page 3 of the opinion seems to address the proximate cause issue directly:    “. . . followed procedure required by the standard of care and called for assistance from one of the on-call surgeons for that day, it is more likely than not Mr. Black would not have suffered the injuries he did.”

This decision is likely to confound trial courts and litigants grappling with the legal standard for proximate cause at the summary judgment stage.  Perhaps the Arkansas Supreme Court will review the decision and clarify this point.

Tim Cullen

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