*1 COURTEAU, the Estate and Dollie & Guardians of Duane DODD, M.D. Doyne Person of Courteau 773 S.W.2d 89-105 Court Arkansas Supreme 3, 1989 delivered Opinion [Rehearing denied September 1989.*] grant rehearing. *Purtle, J., would
Perroni, P.A., Rauls & Looney, Samuel A. by: Perroni and Rauls, D. Stanley for appellants.
Barber, McCaskill, Amsler, Hale, P.A., Jones & appellee. Justice. This is a medical malpractice Newbern,
David case decided defendant, by summary judgment in favor of Doyne Dodd, M.D., the The action was appellee. brought the by appellants, Courteau, Dollie and Duane on behalf of their son and ward, Timothy Courteau. at Timothy, age suffered a twenty, broken neck in a diving accident. While he was a patient at North Little Rock Memorial Hospital, breathing tube which had been placed through his nostril into his trachea dislodged. became Breathing elevated, was severely blood and hampered, gases he suffered a heart attack and massive brain damage. Suit was on brought his behalf by are appellants, Timothy’s parents and guardians, three and an insurance physicians Dodd, company. allegation The against Dr. a radiologist, was that he failed to take immediate action to others involved in notify treating an showed the tube was not present where it should have been. The trial court entered a final Dodd, judgment as to Dr. finding no reason to Ark. delay. R. Civ. P. 54(b). The argue Courteaus fact issue is remaining whether the doctor used the means of communication. proper They assert it is a juror could answer absent however, that, We testimony. agree, with the court’s conclusion absent the of prospect showing Dr. expect Dodd issue, to have been negligent, there was no fact remaining and summary judgment was appropriate.
Facts revealed in the and affidavits pleadings and supporting responding to the motion are not summary judgment disputed. 3, Timothy Courteau was to the on July admitted 1986. hospital Following necessitated he surgery injury his was spinal placed air an keep was put place and the tube on a.respirator, beginning *3 mouth, went into the the tube nostril and the but instead resulted to breathe inability and stomach. esophagus Timothy’s at 8:59 attack which occurred in the brain and a heart damage a.m. X-rays. chest daily had been made for
Requisitions to 4 made no reference X-ray dated 3 for a requisition July July film, *4 In to the response motion for summary judgment, Courteaus presented, other among things, from a excerpts number of depositions concerning being direct care which was given items, in or about the patient’s hospital room. The only films, other than the X-ray related to Dr. Dodd were an directly from a excerpt internist, deposition given an Frank Logan Dr. Brown, Jr., and an affidavit from a John respiratory therapist, Govar.
Dr. Brown no expressed about the standard of care opinion and whether Dr. Dodd’s actions were within the standard. He stated he did not understand Dr. Dodd had not called the why intensive care unit where the was when he hospitalized noticed the tube was not given the “intubation” notation present, on the requisition.
384 certified respira- he was a stated that affidavit
Mr. Govar’s serving as currently twelve years experience, with tory therapist Pulaski, Hospital at Hillside Care Director of Respiratory Govar’s about Mr. nothing affidavit contained Tennessee. The showing nothing was his There training or position. education working or which he was or nature of the size nothing There he had worked. in which any community reading reporting of or radiology show any x-ray “a chest that in his experience He stated procedures. chest x- that a means the word ‘intubation’ reflecting requisition tube determining for the purpose is ray being requested of the tube the absence his that opinion He stated placement.” immediately. have been reported 6 film should shown the of material fact remained issue finding genuine After that stated: causation, trial court’s order as to the question in this case However, it is the Court’s opinion testimony would have to have expert Plaintiffs care for the standard of Dr. Dodd acted below opinion Arkansas, Rock, or a in North Little radiologists in 1986 not listed Plaintiffs have similar and that community, therefore, and, testify, who would so medical physician concerning fact not a issue of material genuine there is negligence. Dodd’s alleged Co., Ark. v. St. Paul Ins.
In Prather because summary judgment we reversed a (1987), S.W.2d 676 to raise a medical expert found ample rule We stated the standard negligence. to a fact as physician’s moving burden is on the summary judgment. for review for trial. issue of fact genuine demonstrate that there is no party whom to the favorably party We view the evidence most Bank, 286 Ark. v. First National Clemons sought. Citing relief is not summary judgment we said (1985), 692 S.W.2d from but has aspects the evidence is not in dispute where proper be drawn. might reasonably inconsistent hypotheses which statute, 16-114-206(A) Code Ann. Ark. The malpractice § (1987), provides: *5 the shall have the injury, plaintiff
In action for medical any burden of proving: ordinarily degree learning possessed of skill and
(1) the medical care used members of the in the same standing, engaged type in good provider or in which he practices or in the locality practice specialty in a similar locality; failed to act That the medical care
(2) provider standard; and accordance with that thereof, result (3) injured person That as a proximate have occurred. suffered which would not otherwise injuries whether, Dr. Dodd here is once question presented the effect that he was not expert opinion testimony evidence to negligent, pose Courteaus sufficient presented refined, of fact on Further question question issue. his becomes whether the affidavit of Mr. Govar expressing that Dr. Dodd was was sufficient to rebut opinion negligent Dodd’s evidence and thus raise a fact question. could be judgment
To the extent the trial court’s to find a stating as that the Courteaus were interpreted the affidavits radiologist to Dr. Dodd and to rebut testify against Ann. 16- radiologists, disagree. of his fellow Arkansas Code § 114-207(1) (1987) governs that A.R.E. 702 qualifi provides Rule injury. cations of witnesses in an action for medical basis 702 is not so strict. We have held that if there is a reasonable at hand than a subject a witness knows more of the saying Dildine his evidence is admissible. ordinary knowledge, person Co., (1984). v. 282 Ark. By Clark Equip. DeSandre, 286 Ark. Haney of obiter dictum way (1985), S.W.2d 214 we stated that: every plaintiff statute does not state that expressly willing testify case must find a doctor malpractice might subject a fellow doctor. Such a requirement doubt, being as special of the statute to serious validity ^ or legislation. class is a background whether educational Reserving of the necessary component qualifications person presented it clear as a medical Govar’s affidavit makes pretty Mr. expert, than the more he is a have person may *6 386 It states: therapy. would have about respiratory
ordinary person relating case to issues in this therapy respiratory [t]he an intubated care to be to provided and standard proper any are common to Intensive Care Unit patient basic The issues involve the such a unit. operating hospital intubated management pa- of an airway components tient in the Intensive Care Unit. means a
It then states that “intubation” noted on a requisition determine tube being placement, chest to requested major signifi- a.m. film were of findings that the from the 6:35 immediately have been cance to the care and should patient’s been one of the standard Had the issue this case reported. and had care to in administering therapy, be exercised respiratory field, his Mr. Govar been able to as an in that qualify been to a fact testimony might question. have sufficient present here, however, was of care a subject The at hand the standard must follow in an radiologist interpreting X-ray requisition. is whether Mr. Govar we face an about how Dr. Dodd should have qualified express opinion 5 reacted to the 6 the instructions in the July X-ray, given the Courteaus’ nothing The affidavit offers to sustain requisition. which, 16-114-206(A)(1), burden of the words proof § learning ordinarily includes of skill and degree possessed “[t]he of the medical care and used members of the . . . in the of . . . in the engaged specialty same provider type affidavit . . . or . . . similar Mr. Govar’s locality locality.” as to how a nothing having knowledge contained about his have in a like North Little Rock should radiologist His statement that the “respir interpreted July requisition. an care issues” are common to atory any hospital operating his evaluation of the conduct intensive care unit states no basis for of a radiologist. v. Good Samaritan Phillips Hosp.,
The Corteaus cite
radiologist
There a
(1979).
Ohio
The Jenoff case is easily
aby
tumor
lung
We
of a
agree
discovery
us now.
treating
be communicated to a
radiologist is
an item to
clearly
could determine
and a
patient,
layperson
be charac-
circumstances could
failure to communicate in those
case, however, there was no failure
terized as
In this
negligence.
case,
here would
the jurors
to communicate. Unlike the Jenoff
“intubation” and
have had the task of
the term
interpreting
action,
if
it
under
determining
any,
statute.
standard made
applicable by
Co.,
we wrote:
Ins.
supra,
In Prater v. St. Paul
negli-
when the asserted
testimony required
Expert
when
comprehension;
does not lie within the
gence
jury’s
a matter
just
of care is not
standard
applicable
must have the
knowledge;
common
and when
jury
assistance of
witnesses to decide the issue
&
Insurance
Sexton v. St. Paul Fire Marine
negligence.
Co.,
David v.
(1982);
275 Ark.
Affirmed.
Holt, C.J., JJ., Glaze, Purtle dissenting. Justice, John I. Purtle, dissenting. We should abandon the *8 archaic rule that dictates that before an injured may person a proceed against he must have another physician, is willing to that the did not use the testify treating physician degree of care given One of the basic instructions to the required. jury is: “In in considering you evidence this case are not to set aside common but have your knowledge, you a to right consider all evidence in the own observations light your and in experiences the affairs of life.” AMI Civil 3rd 102. If a jury not urged to set aside its common knowledge, then certainly admonition should with force to the courts. Our apply equal court-made rule to another requiring physician testify against is, least, support claim at the obsolete. In plaintiff’s very view of the existence of special legislation doctors from protecting risks, certain ought to all other normal subject physicians risks encountered other by professions.
The majority is well-written and contains all the opinion facts to understand this necessary disagreement case. is not so My much with the as it is with the which has majority grown practice up protecting the medical negligence. from for liability For in the case two example, present radiologists board-certified testified, relative to the motion for that the summary judgment, appellee, also a board-certified radiologist, things did in conform- with the ity standards in the where the prevailing all other board- me if is located. It would surprise
hospital make the same would not in the radiologists city certified case should not However, decision in this the ultimate statement. to a radiologist. be left he was when grave was in condition Courteau on July at Memorial Hospital in the intensive care unit
placed lungs, into his to insert a tube necessary 1986. It was deemed trachea, oxygen. to enable him to receive sufficient through One breathing. him in He was then on a ventilator assist placed in the X-ray would have a daily of the routine orders was that Tim determining things, for the other morning among purpose, inserted, whether the tube was in When the tube is properly place. When the tube is not the condition is referred to as “intubation.” the condition is called “extubation.” place between 7:30 a.m. morning were read each X-rays 6, 1986, a.m. morning X-rays clearly 8:00 Until July early breathing requisi- revealed that Tim had the tube in place. reading tions for morning 6 early X-ray required 6,1986, read by intubation. The early morning X-ray thing Dr. Dodd The remarkable between 7:15 a.m. and 8:30 a.m. obvious, copy about this is that it is even from the X-ray photo briefs, tube is from his throat. missing that the appellant’s stating “may Dodd’s tube that it missing by alluded to the report have been removed.” One of Dr. Dodd’s Dr. Dalrymple, partners, Rock Memorial stated that at the North Little X-rays ICU were not to be given reading were to be Hospital priority However, reading of this handled as “routine” X-rays. at Tim’s station Dr. Dodd at about a.m. was not received 8:00 meantime, a cardiac until 10:37 a.m. In Tim had suffered *9 arrest. of another testimony
It seems to me that it does not take the dislodged tube had been radiologist breathing to that the explain on X-ray of the taking from the thoratic area to patient’s prior 5, is 4 and it 1986. with the Compared X-rays Knowing obvious to the normal that the tube is not eye place. nevertheless handled that the tube was not in the doctor place, its taking routine was situation as a matter of routine. While this course, situation and life-threatening Courteau was in a under routine care indeed almost died. He deserved more than these circumstances.
Even came back to the before the of the report X-rays chart, the nurses had discovered he was extubated. patient’s duty In through to the tube it was inserted attempt replace into the stomach. this series of esophagus Certainly mishaps not the institution or of its I doubt that planned by any employees. any attending or staff member of the from employee hospital, janitor, to would have failed to that some- physician recognize thing needed to be done when it was discovered that the tube was not for the stated that one place. requisition purpose was to determine whether the was intubated. It does not take recognize that this fact should expert testimony be immediately called to the attention of those entrusted with Rather, the life preserving of the This was not done. this patient. most significant and fact was not called to the attention alarming of anyone except through routine channels.
It is clear to me that the evidence in this case reveals quite certain from which inconsistent reason- aspects hypotheses might words, be ably drawn. In other reasonable men differ on the might Prater v. St. Paul interpretation the evidence. In the case of Co., Fire and Marine Insurance 293 Ark.
(1987), this court stated: when the asserted
Expert testimony negli- gence does not lie within the when jury’s comprehension; standard of care is not a matter of common applicable knowledge; and when the must have the assistance of jury witnesses to decide the issue of expert negligence. did jury not need the of an witness to interpret facts in this case. The to whether boils down question Dr. Dodd was negligent failing to communicate the extubated condition of Timothy Courteau. Aside from the fact that it is most difficult to find a willing who is testify another it is physician, clear from the facts in this case that the could jury have made a determination on the of the question DeSandre, 258, 692 Haney See 286 Ark. appellee’s negligence. (1985). S.W.2d 214 though
Even
not have decided
factual
may
this precise
before, we have decided
I
many
the same issue
times.
*10
have cited two cases and will
to several others from other
point
jurisdictions. The
finding
radiologist concerning
has
X-rays
been held not to be a
so
matter
within the
peculiarily
expertise
the medical profession as to
testi
require expert
mony.
v. Good Samaritan
Phillips
The director of at respiratory testified therapy hospital that the involved procedures in this case are common to any hospital such furnishing services. The director had twelve years’ experience respiratory He was familiar with the therapy. X-ray procedures normally to determine the employed proper place- ment of breathing tubes. He stated that of a purpose requisition an requesting to be read for intubation X-ray was to see whether the breathing tube was still in It was obvious to place. him from'observing the 6 that the tube was not in place.
An attending found in a life- threatenting situation obviously recognized the need for immedi- ate attention and attempted to tube. replace respiratory However, she mistakenly inserted the tube in his esophagus, thereby aggravating situation. patient’s already precarious holding in Good Samaritan Phillips Hospital, supra, was that:
Modes of communication. . . are not so within peculiarily expertise knowledge of the medical so as to necessitate manner expert testimony. of communi- cation, unlike and content urgency depend upon facts, not so and technical that is should complex In so escape comprehension jury. holding, layman merely general that a need not apply principle party “submit in order to have the case submit- expert testimony *11 duty of the defendant’s where violation ted to the jury, [a] (Citation made to appear.” is otherwise to the communication, need for a omitted.) Once the contain, have been that it should information necessary established, able to on pass trier of fact should be mind bearing in of the communication issue of adequacy at the time the communi- available to the parties the facts was made. cation needed to is all that is
It seems to me that common and read Dr. taken at 6:35 determine that the X-rays later, demanded that the extubation Dodd about an hour clearly the normal routine. immediate attention rather than or Dr. unit when Dr. Duke Had the been read in the ICU X-rays arrived, not have arrest most would likely Bates the cardiac indicated that the available evidence occurred. Dr. Bates stated at 7:15 situation life-threatening Courteau was in a.m., had been taken. about an hour after one the archaic rule requiring
If we must continue to employ another, to me that Dr. Bates’ it seems physician testify against be the matter enough is factual to demand sense requires for determination. Common jury submitted to a negligence that a be allowed to decide the issue jury as well as in all cause in medical cases proximate malpractice other cases.
Holt, C.J., in this dissent. joins v. STATE of Arkansas
Mac TAYLOR CR 89-74 Court of Arkansas
Supreme delivered Opinion notes on nursing lung. to his open passageway was 1986, agitated patient showed night to side. from side shaking his head the ventilator and fighting morning 7:30 a.m. on between 6:00 and A nurse checked the tube sound around whistling there was a 6 and found time, a about that same At and the was unresponsive. readings were at blood gases reported respiratory therapist therapist been around 30. should have they around Marvin, treating physician, to Dr. caused a call to be made Duke tried be repositioned. who then ordered that the tube both the using the lung, the tube back into unsuccessfully get
Notes
notes McAdoo, 4 stated in his July Dr. who read the the tube. dated The requisition is an endotracheal tube in place.” “[t]here tube, no mention of again 4 for the 5 made July July X-ray the tube. The requisition Dr. McAdoo’s notes did not mention notations: “CHEST- had two July X-ray dated for the “INTUBATION.” PORTABLE RECUMBENT” and the motion for summary Dr. Dodd’s affidavit accompanying and 8:30 the film between 7:30 judgment stated that he read the his earlier out that in 6. The Courteaus morning point 7:15 and 8:30. said he read the film between Dodd deposition He noted the morning. had been taken at 6:35 X-ray tube, tube is not “the endotracheal stating, absence of the notes were removed.” His dictated may visualized and have been no other He took morning. transcribed and at 10:37 that printed not in that the tube was finding action to of the notify anyone as described the X-ray requisition In his affidavit Dr. Dodd place. to with his respect “routine” with nothing suggest urgency about the nothing unusual He noted there was report. also which be removed may of a tube or other appliance disappearance as a condition patient’s improves. were summary judgment Also the motion for accompanying affidavits of two board certified each of whom radiologists, stated he was familiar with the standard of care for radiologists in the practicing Little Rock and North Little Rock community in 1986. Each stated that he had reviewed the facts undisputed and concluded that Dr. Dodd read promptly in question it in a interpreted manner consistent with the standard of care for a radiologist in the in 1986. Each stated: It is my professional medical Dr. Dodd opinion that did not fail to negligently bring his endotracheal tube finding 6, 1986, Tim regarding Courteau’s July morning chest x-ray the attention of treating physician, unit, room, intensive care the emergency or hospital administration, as alleged . . . . . . Com- plaintiffs’ Dr. Dodd plaint. dictated a which indicated that report “the endotracheal tube is not visualized and have been may removed.” No request a STAT was reading communi- cated to Dr. Dodd. It was within the standard of care for a radiologist who read a routine chest on a x-ray patient had been intubated in the intensive care unit for several to dictate his days findings no tube in the x- appeared ray. This is true though even indicated that requisition intubated, because the computer-gener- ated often requisitions indicated the of tubes or presence appliances which had been removed as the patient’s condition improved.