*1
291
as
of
higher
of a
court
law the Neal while it
opened
or decree
new dependency-
decision
carry
neglect
and must
the
of the
by
case
case
filing
petition
new
for
pursuant
court into
higher
execution
emergency
custody,
a new docket
by
Pro-Comp
issued
that court.
number,
mandate
seeking
emergency
an
removal of
Enters., LLC,
Mgmt., Inc. v. R.K.
366 Ark.
custody from Ingle because of her six felo-
(2006).
463,
20
We have
237 S.W.3d
made
ny charges.
§
See Ark.Code Ann.
9-27-
very
by
appel-
it
clear that
an
“[d]irections
(Repl.2009).
310'
expressed
court to the trial
late
court
While I
sympathetic
am
to the circuit
by
opinion
the
and the mandate must be
court and DHS
predicament
because
the
exactly and
into execu-
followed
majority’s qualified
resulted from the
Co.,
Operating
tion.” Smith v. AJ & K
disposition prior appeal,
I cannot
233,
899,
229,
365 Ark.
227 S.W.3d
ignore
plain
fact that the circuit court
(2006)
Stores,
(quoting Wal-Mart
Inc. v.
wholly
jurisdiction.
acted
without
When
494,
Regions
Dep’t,
Bank Trust
Ark.
jurisdiction,
the circuit court lacks
the ap-
(2004)).
499,
249,
Thus,
pellate
jurisdiction.
court also lacks
See
majority’s
sole directive to the circuit
State,
545,
v.
Clark
362 Ark.
court was without entertain for petition
tion to DHS’s emer-
gency hearing. After mandate in the Washington County
filed Circuit February DHS
Court
filed a
petition
hearing
for emergency
under the
diction DHS’s entertaining
emergency hearing docketed under Additionally,
same case number. DHS custody have
could retained of C.N. with
ferred to Dr. Williams for surgery to re- part move the cancerous of his colon. Dr. Williams admitted Mr. Nash Baptist Medical Center Little Rock on Novem- ber 2009. The day next *3 performed surgery and part removed 4, 2009, Mr. Nash’s colon. On November Dr. Williams ordered placement of a naso- (“NG”) tube, gastric but Mr. Nash refused 6, tube several times. On November Firm, Rock, Brad Hendricks Law Little 2009, after Mr. Nash twice refused the Jones, by: Lamar Porter and Todd for tube, Dr. placed the NG tube appellant. and, thereafter, shortly Mr. Nash started Womack, McNeill, Jonesboro, Phelps & showing signs of medical distress and was Gschwend, by: Paul McNeill and Chuck transferred to a critical care unit for treat- appellee. for ment. Mr. Nash hospitalized remained 7, until his discharge January on Brooks, 2010. Law, Brian Attorney G. at According allegations in PLLC, Brooks, Millsap’s by: Brian G. for amicus complaint, Mr. Nash required constant Lawyers curiae Arkansas Trial Associa- care and attention following his discharge tion.
until the date of his death on September DANIELSON, E. PAUL Associate 2010.
Justice. Millsap filed a wrongful-death suit
jTAppellant Nancy Millsap, Spe- as the against 4, 2011, Dr. April Williams on al- cial Administrator of the Estate of Robert leging placed that he against an NG tube Nash, Deceased, appeals the judgment of expressed wishes, Mr. Nash’s and that he the Pulaski County Circuit Court placed improperly, entered it thereby causing Mr. Williams, Appellee favor of Victor M.D. aspirate Nash to and eventually causing (1) appeal, Millsap argues On hypoxic him to suffer injury. brain In her circuit court abused by pro- its discretion complaint, Millsap alleged negli- that the viding misleading erroneous and instruc- gence of Dr. proximate Williams was a consent; jury tions to the concerning cause of and permanent injury serious (2) that there was sufficient evidence from sought Mr. Nash. She damages and de- jury which the could have found that Rob- manded a trial. An amended com- ert injury Nash suffered 23, 2013, as a result of plaint May was filed on adding undergoing nasogastric procedure per- placed claims that Dr. Williams an NG formed proper without consent. This tube who was not mentally jurisdiction court assumed of the instant competent during the procedure and that appeal involving needing issues clarifi- Dr. Williams failed obtain consent from law; hence, cation or development of the Millsap place tube. NG jurisdiction our pursuant to Arkansas July A trial was though July held 2(b)(5)(2014). Supreme Court Rule For 1— Gaunt, 2013. helped Yuris a nurse who herein, explained the reason we reverse surgery, care Mr. Nash after his testi- and remand. 6, 2009, fied that on November she talked gRobert | Nash, |sMr. Millsap, father of was with placing Nash about an NG tube diagnosed with colon cancer and was re- because Dr. one Williams had ordered air, difficulty breathing, having She documented 2009.
November dropped. pressure and his blood he refused the NG chart that Mr. Nash’s recalled that Mr. Nash was Gaunt tube. cross-examination, Gaunt stated that On docu- morning, and she had confused place several tries to it took Williams in Mr. Nash’s medical chart mented it, Mr. the NG tube but once that morn- “agitated and confused” he was confirmed quit fighting. She also Nash further stated that she wrote ing. She nursing notes at 1:30 that she made two “[tjrying chart that Nash was the medical mention that while there was no p.m. and bed; note, is hallucinat- out of in the second to climb in the first she stated ” n states, see chickens.’ Gaunt vomited minimal ‘I can note “Patient ing and But, specifically Gaunt could not in Mr. Nash’s medi- amount.” that her notes stated it vomiting Mr. and whether recall that Mr. Nash was records indicated cal *4 before, during, or would have occurred drug ap- Haldol at subsequently given of the tube. She also placement after the a.m., Dr. per 10:20 Williams’s proximately not have assisted stated that she would order, instructed that which further tube if she placement of the NG given every six hours as medicine could he had heard Mr. Nash state that did that she assisted Gaunt testified needed. tube. want the during placement his Dr. Williams Brockette, that afternoon and that she did NG tube who at the time of this Kristi nurse, being any suggestion charge that was the testified not recall there incident morning her on the any type approached was due to that Gaunt placement that she had of November 6 and told her Gaunt further testi- emergency situation. but that Mr. place an order to an NG tube did not recall discussion fied that she refusing Nash was it. Gaunt also told Dr. and Mr. Nash con- between Williams appeared agitated Mr. and con- that cerning placing the risks or benefits of n that she went fused. Brockette stated tube, if NG and that even there had been explain Mr. Nash to with Gaunt to talk to discussion, she did not believe that such an NG tube and procedure placing it Mr. Nash would have understood be- he Mr. Nash was adamant that did mental Ac- cause of his confused state. his had died not want it because brother Gaunt, while Dr. cording to Williams tube. She placement from the of an NG tube, the NG Mr. Nash was trying place recollection that also confirmed Gaunt’s off, fight it and that she and the trying to having periods of confusion Mr. Nash was each had to hold Mr. doctor’s assistant instructed Gaunt morning. Brockette Nash’s hands down because he was resist- that Mr. Nash had notify Dr. ing. She also stated that Williams the NG tube. Brockette also stat- refused getting time appeared to have a hard any emergency ed that did not observe she Gaunt, Mr. According tube inserted. placement that necessitated the situation Nash’s medical records stated that he was the NG tube. p.m., dose of Haldol at 1:30 second Cohen, the time that Dr. which was Williams sur- Stephen Dr. a colorectal placing the NG tube. Gaunt also recalled witness for expert testified as an geon, after Dr. the tube he that he re- Millsap. Williams Dr. Cohen stated regarding perform Baptist policies did not the routine check to en- viewed Health’s 15applicableArkan- placed correctly. sure that it was Gaunt as well as the |4Pr. statutes, them to re- shortly interpreted also stated that after sas room, per- consent before gasping quire a doctor to seek left Mr. Nash started forming a in the procedure absence of an ther was fearful of an NG tube because his brother opined situation. Dr. Cohen had died with an NG place tube in after and that performing surgery on Mr. she and her .explained father Nash, to Dr. Williams and Williams deviated from the stan- his nurse. Millsap stated that Dr. Williams dard of care when he told them improperly posi- there were other things that could be done tioned an NG tube “that probably wasn’t “that probably he wouldn’t need one.” needed.” He also stated that the standard Millsap further stated that her father was of care is to have someone in a pa- else so fearful of an NG tube that he would not verify tient’s room to the patient have had the surgery if he had to have a wants tube or to have the next kin tube, and that he reiterated this to Dr. power of attorney grant consent but Williams at the hospital. Millsap stated that verbal consent would be sufficient. that she was with her father on the morn- that, Dr. Cohen stated based on his review ing of November and that he was hallu- evidence, of the medical records and other cinating thought there were chickens Mr. Nash was not capable granting hospital room. She also stated that tube, placement consent for of the NG there had been several attempts during specifically pointed to the evidence of the evening of November 5 and the morn- Mr. Nash’s hallucinations and the fact that ing of November 6 place tube, an NG Mr. Nash received two doses of Haldol in a *5 and that each time her father refused it. period short of time as the basis for his Millsap stated that when Dr. Williams conclusion. Dr. Cohen also took issue with came in after lunch she told him that the the fact that Mr. Nash’s death certificate nurses had upset her father with their listed the cause of death as colon cancer. attempts place to an NG tube. Dr. He admitted that he never treated Mr. Williams Millsap asked and the other fami- Nash but opined, based on his review of ly members to step out of the room so that records, the medical that Nash died as a he could check Mr. Nash’s incision. She “multisystem result of organ failure.” He stated that at the time she left the room opined further that the effects caused she had no idea Dr. Williams going was to placement the incorrect of the NG tube place an NG According tube. Millsap, to undoubtedly primary were the cause of his room, when Dr. Williams came out of the death. he said the good incision looked and told cross-examination, On Dr. Cohen admit- the family to wait before going back in ted that he had no idea what conversation because the changing nurses were Mr. may have occurred between Dr. Williams gown. Nash’s She stated that there was and Mr. regarding placement Nash of no conversation about just Dr. Williams tube, the NG and he also admitted that tube, having placed an NG and that when sometimes a patient may refuse to allow a she finally was allowed back into the hospi- perform nurse to procedure a but will sub- room, tal “gray” father was and she sequently allow a doctor to do it. thought he was dead and screamed for Nancy Millsap, daughter, Ms. Nash’s help. She then noticed her father was testified that she went pre- to her father’s bed, “tied to and he had a tube in his operative appointment with Dr. Williams. Millsap explained that her father 17nose.” She stated expressed that her father con- quickly was transferred to a critical care |6needing cern about colostomy bag unit, and finally and when she was allowed to specifically him, stated that he did not want an see he had been intubated and was on NG tube. Millsap explained that her fa- ventilator. that Mr. Nash stated Massiet, for Patient Dr. Williams President Vice
Jill communi- him and to to understand Health Medical Center able Baptist at Care to agreed Mr. Nash Health Rehabilita- him and that Baptist cate with Little Rock Institute, a “Con- regarding testified of the tube. placement tion in the policy contained hands to using for Treatment” his sent did not recall Mr. patient center’s administrative medical He stated away. the tube try push to also the policy explained manual. She care placement not discuss the that he did at receive care patients to all who applies Mr. Nash consented family because caregiv- to all applies Health and Baptist it, there was and Dr. believed Williams She stated patient. ers for place the tube. urgency some patient governed which policy, or- subsequently that he stated Williams with re- statutory law tracked Arkansas intensive be moved to the dered Mr. Nash consent. On cross-exami- spect closely more moni- unit he could be care so nation, there no stated that Massiet tored. for place- policy requiring written cross-examination, Dr. stat- Williams On an NG tube. She also stated ment of the benefits and risks explained ed that he hospital signs into when a Mr. Nash the NG tube and that placing treatment, signs general con- he or she ap- appear not to be confused did form, hospital general con- giving the sent He give consent. admit- peared capable to necessary procedures, but to do sent ted, however, of Mr. that he was aware would have procedures invasive specific hallucinations at time Nash’s earlier patient. be discussed with the NG tube. placing with him about spoke case, Dr. Millsap’s At the close of Mr. Nash did not again He stated that “on a directed verdict moved for tube, placement resist proximate causa- negligence, all issues of held Mr. Nash’s may his nurse have while tion, court de- damages.” The circuit *6 hand, him one force to restrain no used motion, then and Dr. Williams nied ad- Dr. Williams during placement. behalf. Dr. Williams testified on his own Nash had he knew that Mr. mitted that visit during presurgical that his stated of the NG tube refusing placement been pos- him Mr. Nash he discussed with with November 4. He he ordered it on since sur- associated with the complications sible previous to a response stated that in also any dis- Dr. did not recall gery. Williams Millsap proffered by request for admission daughter Mr. Nash or his cussion with or nurse restrained that he admitted he his that if about an NG tube and testified NG tube. place in order to Mr. Nash he would there had been such a discussion pre- condition asked if Mr. Nash’s When physician it in his notes. have included requiring emergency situation sented an stated that he first ordered tube, NG Dr. placement immediate receiv- the NG tube on November after “it that he believed should Williams stated some concerning a call Mr. Nash and ing right then.” Dr. Williams have been done Then, distention. hiccups and abdominal note in Mr. Nash’s that he did not stated Dr. Williams stated on November given had consent that the Nash and noticed that his he examined Mr. lschart that it is the NG tube but placement very |sdistended and that he abdomen was verbal necessary to document always restless. Accord- was uncomfortable and But, with the when consent. Williams, Nash that ing to Dr. he told Mr. medical regulations applicable an NG tube rules thought place he needed to staff, Baptist Dr. admitted it. Williams gave placing him the reasons for that a policy Health has a doctor who that the case to be submittéd the was procedure case, a to a must explains not an informed-consent and that having documentation of done so. designed instruction was for informed con- Baptist admitted that Dr. Williams also incorporated sent arid Arkansas statutes policy requires patients has a all un- on informed consent. Millsap stated that dergoing give medical treatments to con- she had no claim “adequacy based on except sent situations. He information to Mr. Nash.” According to applicable hospi- further admitted that the Millsap, case was based on a claim that policy emergency/implied tal allows for Mr. Nash refused consent and what infor- consent when there is no one immedi- mation he was or supplied was not ately available who is authorized to was immaterial. Millsap then Thereafter, patient. consent for the Dr. modified version of AMI Civ. which admitted that he could have Williams incorporated parts of Arkansas statutes to Millsap placing talked before the tube regarding consent to treatment. Dr. but did not do so. Williams argued that the model instruction if appropriate the court was going to Boyd, general surgeon,
Dr. Roderick submit the case to the allega- on the expert testified as an witness on behalf of consent, tion of lack of because it was his Boyd Dr. Dr. Williams. testified that he position that Mr. gave consent and complied believed Dr. Williams with the the model instruction was therefore appli- in treating standard of care Mr. Nash and cable, and that modified instructions that nothing injury he did caused him (cid:127)should avoided where there is a model resulted Mr. Nash’s death. He also applies. instruction that that, Millsap next ob- opined purposes it was jected of AMI Civ. 1509 for for Dr. sufficient Williams to explain the same reasons —it an informed- placement tube Mr. Nash and for Mr. applicable, instruction and not agreement. Nash to nod in Dr. fur- Boyd proof there was no of any lack of informed opined ther the tube needed to be consent. Dr. argued Williams placed “sooner than later.” On cross-ex- appropriate instruction was amination, because the Boyd during admitted that note on use said it should be where prior deposition he stated that Mr. Nash there granting issue of or withholding was not of sound mind at the time Dr. Thereafter, consent. rejected the court tube, the NG but at trial Millsap’s proffered instruction that was a he deferred to Dr. judgment. Williams’s *7 modified version of AMI Civ. Following testimony, the defense | gave both Civ. 1508 and 1509. The nAMI rested, and Dr. pre- Williams renewed his jury returned a verdict in favor of Dr. vious motion for directed verdict and fur- Williams, appeal and this followed. that, ther argued testimony based on the Williams, of Dr. Nash consented to [inMr. Millsap argues point as her first on ap- tube, any the NG and without evidence to peal that the circuit court abused its dis- contrary, the there was no issue to submit cretion in jury the erroneous and jury. the The circuit court denied the misleading premised instructions a case motion, parties began and the discussing on lack of consent. According Millsap, jury issue of instructions. the circuit court abused its discretion when In the course of considering jury in- it instructed the jury on the issue of in- structions, objected Millsap to the circuit formed as such instructions were court giving AMI on misleading Civ. the basis because the issue of informed consent to governing Arkansas statutes to her cause of on irrelevant was consent hand, the one the circuit a lack of actual consent. treatment. On based on action Further, the circuit modified version argues approved Millsap’s that court Millsap jury properly its not 1507 and instructed the abused discretion of AMI Civ. respect to the jury with instructing as follows: where there was basis of consent issue Nancy Millsap, Special Administra- as for such instruction. the evidence Nash, the Estate of Robert as- trix of recovery: separate grounds two for serts that the circuit counters Dr. Williams First, negligence there was that in- not abuse its discretion court did and, Williams, M.D.; sec- part of Victor the instructions structing jury as Williams, ond, M.D. failed to that Victor law and were to the facts and conformed placed before he proper obtain misleading. support, In Dr. Williams nasogastric to the tube. that the issue contends Mr. Nash had with- was not whether negli- of respect to the claim With rather, but, past consent in the held Nancy Millsap, Special as Admin- gence, whether, change to a serious due issue Nash, of Robert istratrix of the Estate circumstances, informed Dr. Williams each of three proving has the burden of in condition such change of his First, propositions: essential trusted his doctor and second, damages; has sustained Plaintiff the insertion of the NG tube. consented to Williams, negligent; M.D. was Victor “in- argues further and, third, negligence that such certainly most an formed consent” was damages to the proximate cause by Dr. issue at trial as indicated Williams’s Plaintiff. testimony that Mr. Nash uncontradicted to obtain respect With to the failure and that such consent was gave consent consent, Nancy Millsap, Special Ad- naturally informed consent. ministratrix of the Estate Robert Nash, proving has the burden of each that a It is well settled First, that propositions: it is a three essential entitled to a instruction when second, damages; when the Plaintiff sustained correct statement of the law and nasogastric tube was there is some basis the evidence consent; third, failure Barnes that such support giving without instruction. Everett, damages proximate v. 351 Ark. was a cause of (2003). are requested instructions When Plaintiff. to the Arkansas Model
that do not conform necessary you for to consid- It will be (AMI), they should be Jury Instructions ground each asserted separately er given only when the circuit court finds that recovery. you If find from the evidence the AMI instructions do not contain re- every proposition essential accurately essential instruction or do not ground recovery one spect to applicable state the law to the case. Id. your verdict proved, been then has *8 This court will not reverse a circuit court’s against the Plaintiff should be for give proffered refusal to instruction un that parties against or whom the less there was an abuse of discretion. Id. asserted; recovery but if for is ground any Here, the evidence that you find from disputed jury-instruction the issue any respect with to proposition centers on of essential model instructions not been recovery for has theory ground on a consent and the one of informed respect to proved, your then verdict rejection proffered of a instruction based
299 be for ther recovery for should instructions ground explained the Defendant. consent, when a doctor must obtain how given, consent be may may give or who 11sBut, then the circuit court refused is consent. It obvious from of the focus instruction, proffered other based- Millsap’s trial, the evidence statutory language found in Arkansas demonstrated the testimony recited to Annotated sections 20-9-601 -603 Code herein, Millsap’s claim Mr. was that The instruction (Repl.2014). did Nash either not consent place- follows: stated as ment of the NG tube or was unable to is re- provides Arkansas law a doctor consent because mental impairment. treating to obtain consent quired before only testimony The at all about informed medical on a performing procedures or consent the self-serving testimony or may Consent be written oral patient. that he explained adult himself need any may consent for If or herself. an adult is of unsound the NG tube and that Mr. then mind, any then adult child of the placement. consented its to This testimo- consent. may provide ny simply presented to Mill- refute inability sap’s mind” claim that Mr. Nash never con- gave “Unsound means the all relevant facts related to perceive to sent. proposed
one’s condition and treatment |14It to decision intelligent so as make an true that in jury is nonmodel thereon, whether regardless based given only structions should be when inability only is has ex- temporary, circuit finds that the model instruc time, an or period isted for extended contain an tions do not essential instruc or occurs has intermit- occurred tion accurately or do not state the law tently. inability may The due to be applicable to the case. Nelson v. Stubble state, shock, age, anxiety, ill- natural or 256, 586; field, 2009 Ark. ness, injury, drugs or sedation or other Barnes, But, 351 Ark. 740. S.W.3d cause of whatever nature. An individual oc precisely that was the situation that be shall not considered to be of unsound curred in this case. There model was no solely upon mind his or her refus- based jury regarding instruction consent al of care or medical treatment. treatment, instructions related required is not when an
Consent
were
applicable
informed consent
no
emergency exists AND there is
one
jury.
the case before
While the model
immediately
available who can
rule, a
instructions are to be used as a
for the patient.
consent
An
may be
nonmodel instruction
used when
which, in
as a situation in
is defined
cannot
AMI
instruction
be modified.
competent
judgment,
pro-
medical
Barnes,
Be
351 Ark.
Compounding Mill- necessary to address trial, it is not instruc Millsap’s proffered give to refusal the appeal regarding on 1508, point second sap’s which of AMI Civ. its tion was sufficiency of the evidence. surgeon supply to duty of a the explained can patient so that a information adequate remanded. Reversed and with decision to a reasoned make HOOFMAN, GOODSON, BAKER, and 1509, consent, which AMI Civ. and
hold
JJ., dissent.
that it
the elements
jury
the
on
instructed
“whether
determining
in
consider
could
HOOFMAN, Justice, dissenting.
CLIFF
informed consent
to obtain an
the failure
majority errs
that the
Because I believe
any damages
cause of
proximate
awas
remanding this case and
reversing
and
instructions re
These two
sustained.”
law, I
case
prior
court’s
overlooks this
absolutely
had
consent
garding informed
majority
While the
dissent.
respectfully
that Dr.
allegation
nothing to do with
unnecessary to
it is
states that
opinion
without
NG tube
placed the
Williams
point
appeal,
on
appellant’s second
address
Informed consent
by Mr. Nash.
I
interrelated that
points are so
the two
consented
presupposes
together,
they must be addressed
think
may have
so with
but
done
procedure
Appellant first
I do so in this dissent.
and
make a
necessary to
all information
out
court abused its
the trial
contends
reasoned decision.
and mis-
erroneous
providing
discretion
concerning
jury
leading instructions
|i;iIt
axiomatic that when
her
(-“informed
prof-
rather than
|;
consent”
misleading,
erroneous or
jury instruction is
argues
she
Specifically,
instruction.
fered
given to
and should not be
prejudicial
it is
jury
with
provided
trial court
that the
Williams, 2012
jury.
See Bedell v.
(2013)
1509
and AMI Civ.
AMI
1508
Civ.
Allstate,
493;
2011
Ark.
(2013)
which concern
objection,
over her
Although the
Ark.
414.
S.W.3d
with
provided
been
whether a
has
jury
with
circuit court
provide
information
order
sufficient
1507, its
version of AMI Civ.
modified
these instruc-
alleges
She
consent.
1508 and
subsequent giving of AMI Civ.
argues
because she
misleading
tions were
jury
as to
served to confuse
Dr.
involve whether
that her case did not
action was and
Millsap’s
what
cause of
information
adequate
provided
Williams
present
prove
required
she was
what
actual
received
but whether
that the
It must be remembered
case.
to Arkansas
support,
In
she cites
consent.
is to inform
purpose
jury
instructions
-603 for a
§§ 20-9-601 to
Annotated
Code
applicable
jury
legal principles
regarding con-
of Arkansas’s law
recitation
furnish a
presented, and to
to the facts
that “consent”
alleges
general
sent
jurors
reaching
a verdict.
guide to assist
entirely
are two
“informed consent”
Lines,
Freight
Hearn v. E. Tex. Motor
issues.
separate
(1951).
sum,
In
Ark.
301 implied requiring both the when an AMI instruction does not existence of an AND evidence exist or cannot be modified. Allstate Ins. Dodson, ‘im- person 19, that no other authorized Co. v. 2011 Ark.
mediately available’ who could con- 414. It is error for the trial court to fail to contends, Finally, appellant sent.” what instruct the on a applicable statute case; however, ap- she identifies as her second point it is also error for the “The peal, that Evidence Was Sufficient trial court to instruct the jury inap- on an JuryA That plicable For To Find Robert Nash statute. Id. Portions of a statute A Injury Undergo- Suffered As Result Of not applicable to the facts the case must Aing Nasogastric Procedure Performed be deleted. Id. Proper Specifically,
Without
Consent.”
Specific objections to instructions are
she outlines the evidence
at
trial
necessary
preserve
an issue for appeal.
that could have formed
basis
the Ark.
P. 51. Specifically,
R. Civ.
Arkansas
giving
evidence for the trial court to use in
Rule of
states,
Civil Procedure Rule 51
instruction,
had the court
At the close of the evidence or at such
Appellee disagrees
not refused to do so.
earlier time as the
may reasonably
court
and contends that the trial court did not
direct, any party may submit requested
abuse its discretion. I would affirm.
jury instructions
to the court. The
|17Aparty
is entitled to a
instruction
court shall inform counsel of
pro-
its
when it is a correct
statement
the law
posed
upon
requested
action
instruc-
and there is
basis in
some
the evidence to
|1scounsel
tions and also inform
of all
support giving the instruction. Boellner v.
other
proposes
instructions it
to submit
LLC,
Ctrs.,
Study
Clinical
2011 Ark.
jury.
to the
The court shall instruct the
However,
tions do not contain an essential instruc- A general objection mere shall not be accurately tion or do not state the law appellate sufficient to obtain review of case, applicable to the long- due to our relating the court’s action to instructions standing preference in favor in- of AMI jury except as to an instruction structions over non-AMI instructions. directing a verdict or the court’s action Stubblefield, Nelson v. 2009 Ark. in declining to do so. 586; Boellner,
S.W.3d supra. added.) Therefore, (Emphasis this court Additionally interpreted this has said that has rule to require specific rule, AMI objections instructions are to be used as a in order to alert the trial court and non-AMI why instructions should be used as to wrong. the instruction is All- *11 why we And that’s apply to consent. Co., Additionally, this supra.
state Ins. drafting in statute have relied on the objection to a general that a has held substantially modi- that are if the instructions only permissible is jury instruction erroneous, mean- fied. inherently is instruction not be correct could the instruction
ing added.) (Emphasis circumstance, binding in and is any under the trial court read part, In pertinent Id. nature. jury, to the following jury instructions trial, following offered appellant At 1501, 1508, and AMI Civ. encompassing instructions at two of the objections to (2013): a modi- appeal and issue in this 1501 as [AMI modified1] jury instruction. fied the con- treating obtaining In and/or Honor, objects Plaintiff Your pos- physician a must patient, sent of a position AMI 1508. The giving of care the apply and with reasonable sess an informed con- is this is not Plaintiff ordinarily learning and degree of skill an instruction de- case. 1508 is sent of his and used members possessed informed consent cases signed for engaged in good standing, profession the Arkansas statutes incorporates locality in the type practice of the same claiming not consent. We’re informed or in a similar practices, in which he of information to adequacy in this case A to meet this standard locality. failure he re- claiming that Mr. Nash. We’re negligence. is to that was immaterial as fused —that degree of skill and determining In not was or was what information he required of Victor learning the law with, going we’re not supplied Williams, M.D., deciding whether any information was or was claim that learning degree of skill and he used the know that. adequate. I don’t even required, you may consid- which the law of AMI object So we would phy- testimony of expert er 1508. sicians. any negligence of deciding
In whether your to that regard And I have a—In Williams, proximate M.D. was a Victor Honor, the Plaintiffs proffer I would death of Robert injuries of cause and/or 1508, which is modified version of AMI Nash, would not have that otherwise Arkansas incorporate parts of Code occurred, only the ex- you may consider following. Ann. 20-9-601 and physicians. testimony of the pert any the evidence on considering
In case, you are not in this other issue object Plaintiffs next to AMI 1509. The common your aside required to set This is an It’s—for the same reasons. right to con- knowledge, you have a but And, consent instruction. hon- informed your light of all the evidence sider of estly, proof there’s no of lack in the experiences own observations claiming we’re not informed consent and of life. affairs part that. And this is of the informed not, i9which, a death occurred is The fact that consent statute the Plaintiffs [ itself, on the negligence belief, are evidence inapplicable, and that there anyone. particularly part no AMI instructions before “con- striking "informed” accepted appellant's the word 1. The court modified objection, appellee's sent.” version of AMI 1501 over 1507 as [AMI [AMI ] modified2] Nancy Millsap, Special Administra- In obtaining perform consent to pro- a Nash, of the Estate of Robert as- trix cedure, surgeon is under duty separate two grounds recovery: serts supply adequate information to enable First, negligence there was on the to make reasoned and in- Williams, M.D.; and, part Victor sec- telligent decision to or withhold ond, Williams, that Victor M.D. failed to *12 consent. proper placed obtain consent before he a situation, Other than in an nasogastric tube. the information required type is that as 12pWithrespect claim of negli- to the would customarily have been given at as gence, Nancy Millsap, Special Admin- the time of treatment to a in a Nash, istratrix of the Estate of Robert similar surgeons situation other with proving has the burden of each of three similar training experience practic- First, propositions: essential that ing in the locality practices in which he second, damages; Plaintiff has sustained or in a similar locality. Williams, was negligent; Victor M.D. and, third, negligence that such awas 1509 ] [AMI proximate damages cause of to the In determining whether the failure to Plaintiff. obtained an informed consent was a respect With to the failure to obtain proximate any cause of damages sus- consent, Nancy Special as Millsap, Ad- tained by Nancy Millsap, as Special Ad- ministratrix of the Estate of Robert ministratrix Estate of the of Robert Nash, of proving has the burden each of Nash, you may consider the following First, propositions: three essential that (a) knew, factors: Robert Whether second, Plaintiff damages; sustained or person ordinary whether a intelli- tube nasogastric gence position and of awareness in a consent; third, without that such failure similar to that of Robert Nash could proximate of damages cause know, reasonably be expected Plaintiff. risks or pro- hazards inherent such a It will necessary you for to consid- (b) cedure; Whether Robert Nash would separately ground er each asserted for have undergone procedure, regard- recovery. If you find from the evidence involved, less of the or risks whether he every proposition essential with re- (c) thereof; did not wish to be informed spect any one for ground recovery Whether it was reasonable for Doctor proved, your has been then verdict- Williams to limit disclosure of informa- be for against should the Plaintiff and tion because that disclosure could be against or parties whom that expected adversely substantially asserted; ground recovery for but if affect Robert condition. Nash’s you find from the that any evidence proposition respect place essential AMI any reading with the trial Jain ground recovery one for has not been appellant proffered following Civ. your then proved, respect alleges verdict to modified instruction that she ground recovery incorporates should be for Code Arkansas Annotated the Defendant. §§ 20-9-601 to -608: accepted appellant’s striking 2. The court modified the word “informed” before "con- appellee’s objection, of AMI version 1507 over sent.” 304 when jury instruction refuse the a doctor is re- provides law
Arkansas in- other jury had been instructed treating before to obtain consent quired obtain con- the failure to structions on a procedures medical performing or Ed- recovery. See ground sent was or oral may be written Consent patient. Stills, Ark. v. wards consent for himself may adult (1998). an adult is of unsound herself. If mind, any adult child of then ^Additionally, court did not the trial consent. may provide discretion, majority abuse its inability means the mind” “Unsound 1508 and including AMI Civ. opines, for related to all relevant facts to perceive para- The first instructions. 1509 in its treatment proposed one’s condition of AMI Civ. in the notes on use graph intelligent decision to make so as should be instruction provides “[t]his thereon, of whether regardless based as to is submitted question when *13 ex- only temporary, has inability is the sup- was adequate information whether time, or period an extended of isted for in provider care con- plied by the medical intermit- only occurred occurs or has withholding granting the or nection with inability may be due to tently. The (Emphasis add- to treatment.” consent of ed.) state, anxiety, ill- age, shock or natural in Similarly, first sentence the the ness, injury, drugs or sedation or other provides use of AMI Civ. 1509 notes on An individual of nature. cause whatever should be instruction “[t]his to be of unsound shall not be considered question 1501 when a addition to AMI or her refus- solely upon his mind based informa- adequate submitted as to whether or treatment. al of medical care pro- care by the medical supplied tion was granting or connection with required when an vider in is not Consent treatment.” consent withholding AND there is no one emergency exists added.) AMI 1508 ex- Civ. immediately (Emphasis who can available jury was plained to the An patient. consent for the which, consent but required to obtain in Williams is defined as a situation supply ade- obligated he was judgment, pro- also that competent medical to decide for Nash immediately quate or immi- information posed procedure is or consent. any delay give occa- whether to withhold nently necessary consent attempt an to obtain a sioned Furthermore, the evidence jeop- reasonably expected would such testimony supported Dr. Williams’s life, safety of the ardize the health or testified when Dr. Williams an instruction affected. person explained with Nash and that he met needed an he that he trial, why thought inclu- reasons objected At to the appellant trial, testified NG tube. At AMI 1508 and 1509 instead of sion of Civ. 6, 2009, instruction, he on November explaining that proffered jury pro- to the Nash consented the in- NG tube after arguing that she was not whether he his head” after by “nodding but that cedure supplied adequate formation was procedure why thought already explained jury The had “[Nash] refused.” Nash explained He necessary. the failure to obtain was been instructed that placement, NG during the recovery cooperative proper ground consent was a mind, to be of sound appeared in- jury AMI the modified Civ. any family speak and that he did not by appellant. There- proposed struction consented to fore, because Nash had court to members it was not error for the trial Therefore, procedure. there was some don’t even know that. So we would support giving basis in the evidence to object to giving of AMI 1508. Boellner, supra. instruction. See While majority testimony states that this ¾ n And | I have a—In regard to your “self-serving,” repeatedly this court has Honor, I would proffer the Plaintiffs held that a is entitled to a version of AMI which is modified instruction when it is a correct statement to incorporate parts of Arkansas Code Igjthe law and there is some basis in the Ann. 20-9-601 and the following. support giving evidence to the instruction. added.) (Emphasis While the majority Id. fact present- The that the evidence was holds that “it is obvious from the focus of through testimony ed of Dr. the evidence presented in this trial ... Thus, is immaterial. the inclusion of this that Millsap’s claim was that Mr. Nash instruction and the additional instruction either did not consent placement of AMI 1509 was not misleading Civ. but the NG tube or was unable to may instead have been appel- beneficial to impairment,” because mental the appel- lant, I appellant find that faded to lant cannot change specific arguments demonstrate that prejudiced she was made before the trial court appeal, now on that the trial court abused its discretion in even argument if the new may be meritori- gen- the two instructions. See fact, ous. In it is well settled that Edwards, erally supra. court will not arguments consider raised *14 Appellant argues appeal also on that her Lee, the first time on appeal. Brown v. proffered jury necessary instruction was 2012 Ark. Moreover, 817. S.W.3d provide on the im- guidance change grounds cannot for an portant required elements that are con- objection or appeal motion on but is bound sent, “including whether Mr. Nash was by the scope and nature of the arguments capable providing even and if made at trial. Id. Appellant required was mind[,]’ ‘of was fact unsound whether specific to make a objection to alert the implied there was consent requiring both why trial court as to thought she the in- the existence of an AND evi- struction was wrong required and was person dence that no other authorized equally specific as why proffered her ‘immediately available’ who could modified, giv- instruction should have been appeal consent.” She further identified on may en. She appeal change not on supported testimonial evidence that in- Co., scope argument. of this Allstate Ins. clusion of her instruction. How- Misenheimer, supra; v. Bell 2009 Ark. ever, contrary opinion, to the majority ap- 222, 308 Accordingly, S.W.3d 120. I think
pellee correctly appellant contends that we precluded are from addressing the failed particular argument to state this argument merits of this new appeal, a basis for objection at trial. and I would affirm the trial court. trial, appellant At specifically stated the GOODSON, JJ., BAKER join. following when objecting to AMI Civ. 1508 offering the proffered instruction: claiming “We’re that he refused —that
that was immaterial as to what informa- with,
tion he supplied was not going
and we’re not to claim that adequate.
information was or was not I