This medical malpractice suit was filed by Knoxie Smith 1 аgainst Dr. John Ashley, Dr. Ramon Lopez and the Newport Hospital and Clinic, Inc., alleging a negligent failure to diagnose and treat a fractured femur. Each side served interrogatories and the plaintiff asked the defendants to produce сertain medical records. While these matters were pending, the defendants filed motions for summary judgment which the trial court granted. On appeal appellant contends it was error to grant summary judgment where interrogatories and requests for production of documents have not been answered and we sustain the argument.
The complaint alleges that Knoxie Smith fell on her left knee and leg, was hospitalized by the Newport Hospital and Clinic, Inc., under the care of Dr. Ashley, her family physician, and Dr. Lopez, an orthopedist; that surgery was performed to correct a recurrent disloсation of the left kneecap; that appellant was urged to walk on the leg and was discharged after surgery despite complaints of pain and an inability to walk; that she attempted to inform Dr. Ashley of her pain but was never examined and was told to continue physio-therapy; that after consulting another physician appellant was found tо have sustained a fracture to the mid neck region of the left femur, requiring surgical removal of the femoral head with prosthetic replacement. Separate and specific acts of negligence by the hospital and рhysicians were alleged.
Prior to filing the suit, Mrs. Smith’s attorneys had referred her to Dr. Dennis Davidson, a Batesville physician, to evaluate her disability and advise counsel on whether a claim of malpractice was justifiable. Dr. Davidson was depоsed by the defendants. He expressed the opinion that Dr. Ashley was not at fault because he depended on the оrthopedist, Dr. Lopez, but not being skilled in that field of medicine he was unable to say whether Mrs. Smith received the propеr orthopedic care.
Defendants moved for summary judgment on the basis of the pleadings, the deposition of Dr. Davidson, and affidavits of Drs. Lopez and Ashley that they had used their best judgment and the same caré and skill as of other doctors in similar localities in their diagnosis and treatment. Defendants objected to plaintiff’s interrogatories and requests on the grounds thаt they were entitled to summary judgment which would render plaintiff’s discovery moot. The trial court found no genuine issue of fact existed and granted summary judgment.
For reversal, appellant urges that the information and documents requested were cruсial to her case and were relevant to the issues to be litigated. We agree. The Arkansas Rules of Civil Procedurе, patterned after the federal rules, are to be given a broad and liberal interpretation in the implementation of discovery procedures. Vower v. Murphy,
The languge of this statute was taken verbatim from Federal Rule 34. It follows that our legislature, in adopting the wording of the federal rule, also adopted the principle of liberal construction that had been announced in the leading сase of Hickman v. Taylor,329 U.S. 495 , 91 L. ED. 451,67 S. Ct. 385 : “We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to prеclude a party from inquiring into the facts underlying his opponent’s case. Mutual Knowledge of all the relevant facts gаthered by both parties is essential to proper litigation. To that end, either party may compel the other tо disgorge whatever facts he has in his possession. ” (our italics)
Here, there is no suggestion of a lack of diligence by the plaintiff in discovery efforts, as was found in Mixon v. Chrysler Corporation, et al,
The essence of the appellees’ arguments and authorities is that in a medical malpractice case a plaintiff has the burden of proving, ordinarily by expert medical testimony, that the plaintiff’s injuries were caused by the defendant’s failure to exercise the degree of skill and learning possessed by other physicians engаged in the same kind of practice in similar localities, which the plaintiff has failed to produce. That may be so, but before being required to fully demonstrate that evidence in response to a motion for summary judgment a plaintiff is entitled to have the benefit of adequate discovery from the opposing parties as the nature of the case requires. Those benefits were withheld in this case and the trial court should not have granted summary judgment until appellant was able to complete discovery and develop, if obtainable, the necessary proof. In Palmer v. Chamberlin, et аl,
However, before rendering judgment the Court must be satisfied not only that there is no issue as to any material fact, but also that the moving party is entitled to a judgment as a matter of law. Where, as in this case, the decision of a question of law by the Court depends upon an inquiry into the surrounding fаcts and circumstances, the Court should refuse to grant a motion for a summary judgmet until the facts and circumstances have been sufficiently developed to enable the Court to be reasonably certain that it is making a correct dеtermination of the question of law.
See also Dumansky v. United States,
Reversed and remanded.
Notes
First National Bank of Batesville was later appointed Guardian for Mrs. Smith.