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:

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: )

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