Summary Judgment Affirmed in Malpractice Case Based on “Locality Rule.” Arguments Raised for the First Time in a Motion for Reconsideration Will Not Be Considered on Appeal.

This decision handed down today (June 5, 2013) by the Arkansas Court of Appeals affirmed a trial court’s order granting summary judgment in a malpractice case.  The plaintiff developed an infection at an epidural site.  She alleged the infection would not have occurred but for negligence in prepping and sterilizing the site.  There was also a claim that there was no informed consent for a student to administer the epidural.   The defense submitted affidavits in support of summary judgment.  The plaintiff submitted counter-affidavits from experts (an anesthesiologist, a CRNA, and a registered nurse).  The trial court ruled in favor of the defense, holding that the plaintiff’s expert affidavits did not satisfy the “locality rule” or meet their burden on proximate cause:

The circuit court granted the appellees’ motion for summary judgment, finding that the Quattlebaums’ experts’ affidavits failed to properly establish the standard of care required of the appellees. Specifically, regarding the failure-to-sterilize claim, the circuit court found that the “conclusory statements of familiarity” with local standards did not satisfy the locality rule found in Arkansas Code Annotated section 16-114-106(b). Moreover, the court found that the affidavits did not provide evidence of a breach of the requisite standard of care. Finally, the court determined that the Quattlebaums’ experts did not provide evidence of proximate cause, and the Quattlebaums had not proven the elements necessary to apply the doctrine of res ipsa loquitur. As to the claim of lack of informed consent, the circuit court again found that the affidavits did not satisfy the locality rule; in addition, the court concluded that there was no evidence of proximate cause of any damages resulting from the performance of the procedures by the student nurse-anesthetist rather than by the anesthesiologist.

The plaintiff filed a motion to reconsider, arguing that the defense expert affidavits were conclusory, contained no admissible evidence, no facts about the plaintiff’s treatment, no mention of their familiarity with the standard of care in Little Rock, and were not stated to a reasonable degree of medical certainty.   (But see Muccio v. Hunt, 2012 Ark. 416 on use of the “motion for reconsideration”).  On appeal, the Court refused to address those arguments, holding:

These arguments, however, were made for the first time in the Quattlebaums’ motion
for reconsideration. It is well settled that our appellate courts will not consider an argument
made for the first time in a posttrial motion. See Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464
(2002); Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002); Rose v. Rose, 2013
Ark. App. 256, ___ S.W.3d ___. An issue must be presented to the trial court at the earliest
opportunity in order to preserve it for appeal. Plymate v. Martinelli, 2013 Ark. 194 (refusing
to address an argument concerning the constitutionality of section 16-114-206 where it was
not raised until the plaintiff’s motion for new trial or for reconsideration). Stated another
way, a party may not wait until the outcome of a case to bring an error to the trial court’s
attention. LaFont v. Mooney Mixon, 2010 Ark. 450, 374 S.W.3d 668. The Quattlebaums did
not raise the specific arguments they make on appeal until their motion for reconsideration.
They were not timely raised and are not preserved for our review on appeal, and we
therefore affirm.

The case is Quattlebaum v. McCarver, et al., 2013 Ark. App. 376.  Here is the link: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316394/Page1.aspx

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A Sharply Divided Arkansas Supreme Court on Preservation Pitfalls

On May 16, 2013, the Arkansas Supreme Court issued a decision in TEMCO v. Gann, 2013 Ark. 202.   Like many decisions this term, the Court was sharply divided, with two dissents joined by three members of the Court.  The crux of the decision was whether three of the four points raised on appeal were preserved for appellate review.  Quoting from the 4-judge majority:

In summary, we reiterate that the motion to dismiss was based on several grounds, yet the circuit court granted dismissal based on only one of those several grounds—that the complaint was barred by statute, specifically section 18-44-115(a)(4), due to TEMCO’s failure to give sufficient notice. That is the only ruling the circuit court made. TEMCO argues reversal based on other arguments that were raised below, but not ruled on. As Appellant, it was TEMCO’s burden to obtain or insist on rulings on issues it desired to have reviewed on appeal. See Meador v. Total Compliance Consultants, Inc., 2013 Ark. 22, ___ S.W.3d ___; see also Ghegan & Ghegan, 345 Ark. 514, 49 S.W.3d 652. Alpha Marketing and Ground Zero are very clear that this court will not presume rulings based on a trial court’s silence. Ghegan & Ghegan is very clear that we will not presume a ruling based on a trial court’s general observations. This court is bound to follow these cases and is therefore precluded from reaching the merits of the arguments raised in this appeal, save the attorneys’ fees argument which is rendered without merit due to our summary affirmance.
The orders of the circuit court are affirmed.

Compare that to the Chief Justice’s dissent (joined by Baker and Hart):

Here the circuit court stated that it had considered all arguments, pleadings, briefs, and exhibits and it ruled.  To now conclude that the circuit court did not rule, when it expressly states that it did rule, is error. This decision puts counsel in an untenable position that counsel will be held responsible for the failure to obtain a ruling under the very narrow principles set out by the majority. This means that counsel must persuade the circuit-court judge that an extremely detailed, and finite written order must be issued. While counsel are sometimes assigned by the circuit court to draft a precedent, that is not always the case. Even if counsel were to always draft the precedent, there will be disputes between counsel and the circuit court, which will result in matters coming before this court under its original jurisdiction. This court will be faced with petitions to compel the circuit court to act in a manner that counsel believes is required by the majority’s decision. Overcrowded circuit-court dockets and overworked circuit-court judges will be compelled to engage in needless extra work. Counsel will be put in the unenviable position of having to challenge circuit judges before whom they customarily practice.

COMMENTARY:  This decision illustrates the difficulty counsel faces whenever more than one issue is raised to a trial court in a summary judgment or motion to dismiss context.  TEMCO holds that the following language:

“[t]he parties came before this Court to be heard on Defendants’ Motion to Dismiss. Upon consideration of all arguments, pleadings, briefs, and exhibits, this Court finds that the Defendants’ Motion to Dismiss should be and hereby is GRANTED.”

is not good enough to to preserve alternative arguments that were raised, briefed and argued. Counsel must find a way to obtain a detailed and specific ruling on all alternative arguments that were raised, even if those arguments are not the basis for the trial court’s ruling.  The Chief Justice’s dissent says this will put counsel in the “untenable” position of routinely forcing trial courts to issue “extremely detailed and finite written order[s]” on arguments they have summarily rejected.

The full decision can be found here: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316039/Electronic.aspx