Hayes v. United States

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

HOLLY HAYES, Administratrix of the

Estate of Hollis Bealer, Deceased PLAINTIFF

v. Case No. 4:18-cv-00816 KGB

UNITED STATES OF AMERICA DEFENDANT

OPINION AND ORDER

Before the Court is a motion for summary judgment filed by defendant the United States

of America (“the United States”) (Dkt. No. 11). Plaintiff Holly Hayes, as the Administratrix for

the Estate of Hollis Bealer (“Ms. Hayes”), has responded to the motion (Dkt. No. 15), and the

United States has filed a reply (Dkt. No. 18). For the following reasons, the Court grants the

United States’ motion for summary judgment (Dkt. No. 11).

I. Factual Background

On November 11, 2018, Ms. Hayes initiated this federal tort action against the United

States for medical negligence on behalf of the Estate of Hollis Bealer pursuant to the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., and the Arkansas Medical Malpractice Act

(“AMMA”), Arkansas Code Annotated § 16-114-201, et seq. (Dkt. No. 1). Ms. Hayes also brings

a wrongful death action on behalf of the statutory beneficiaries pursuant to the Arkansas Wrongful

Death Act (“AWDA”), Arkansas Code Annotated § 16-62-102 (Id.). Ms. Hayes alleges that the

nurses at the Central Arkansas Veterans Healthcare System (“CAVHS”) deviated from the

standard of care by allowing Mr. Bealer to fall on November 21, 2015, and that, as a result, Mr.

Bealer sustained physical pain and suffering of a chin laceration, a right humerus fracture, and

death (Id.).

Mr. Bealer was an 80-year-old gentleman with multiple comorbidities in November 2015,

including: status post total thyroidectomy; status post laryngectomy for supraglottic squamous

cell carcinoma; nicotine addiction; hyperlipidemia; benign prostatic hyperplasia; and

hypothyroidism (Dkt. No. 13, ¶ 1). Mr. Bealer had an extensive medical history leading to and

stemming from these various comorbidities (Id., ¶¶ 2-7). Mr. Bealer was admitted in July 2013

following acute kidney failure as a result of acute urinary retention (Id., ¶ 8). No mention of any

neck pain was made during his inpatient stay (Id.). Mr. Bealer was hospitalized in May 2015 with

bilateral pneumonia and a possible urinary tract infection, and a CT scan of his chest was

performed at that time which revealed no malignancy (Id., ¶ 9). He recovered well and was

discharged home (Id.). His post-hospital follow-up in the primary care provider clinic on June 6,

2015, was unremarkable, and he did not mention any active complaints (Id.).

On July 16, 2015, Mr. Bealer presented to the emergency room with neck pain with two

days’ history of sore throat, sinus drainage, and left ear pain (Id., ¶ 10). He was treated for rhinitis

(Id.). On August 15, 2015, Mr. Bealer presented to the emergency room at the John L. McClellan

Memorial Veterans Hospital (“VA Hospital”) with right ear pain and swelling (Id., ¶ 11). A

physical examination revealed a small furuncle with induration, and faint redness without any

clinical indication for drainage was noted (Id.). Mr. Bealer was prescribed oral antibiotics (Id.).

On August 21, 2015, Mr. Bealer presented to the emergency room with urinary retention (Id., ¶

12). A Foley catheter was placed, and more than 700 milliliters of urine was drained immediately

(Id.). There was no mention of any continued symptoms of sore throat or ear pain during that visit

or on August 28, 2015, during his ophthalmology clinic visit according to the medical records

(Id.). On September 18, 2015, Mr. Bealer presented to the emergency room asking for mouthwash

for his sore throat (Id., ¶ 13). A physical exam revealed oral thrush, and medication for treatment

of thrush was prescribed (Id.). In the later part of October 2015, Mr. Bealer had a routine follow-

up visit with his primary care provider and complained of right neck pain and a seven-pound

weight loss within the previous four months (Id., ¶ 14). His physical examination did not reveal

any neck mass (Id.). On November 4, 2015, Mr. Bealer presented to the emergency room with a

right neck pain and right earache for three weeks (Id., ¶ 15). He reported worsening of the pain

upon lying in right lateral position (Id.). The physical examination was unremarkable per the

emergency room physician, though he did make a note that if the symptoms continued further

imaging studies would be warranted to evaluate for possible new malignancy (Id.).

On November 20, 2015, Mr. Bealer was brought to the VA Hospital emergency room by

his daughter with a four-day history of productive cough, right neck pain, nausea, vomiting, and

headache (Id., ¶¶ 16, 61). The family notified the health care providers that Mr. Bealer had been

recently declining in cognitive function (Id., ¶ 16). A CT of the soft tissue of the neck with

intravenous contrast was ordered to rule out a new head and neck malignancy (Id., ¶ 17). The CT

was performed on November 20, 2015, at 6:30 p.m. and revealed a seven-centimeter mass at the

C1 level of the head and neck (Id., ¶ 18). It was suspicious for recurrent malignant disease (Id.).

A CT of the chest was performed on November 20, 2015, at 6:58 p.m. and showed patchy right

lower lobe pneumonia, and a three-millimeter non-calcified pulmonary nodule in the left upper

lobe was also seen (Id., ¶ 19). On November 21, 2015, at 3:30 a.m., the hospitalist physician was

notified that Mr. Bealer had fallen from the bed while trying to go to the restroom to void (Id., ¶

20). According to the physician’s note, it was reported that Mr. Bealer hit his head and lower end

of his jaw (Id., ¶ 21). A superficial laceration of the chin area was noted and bandaged (Id.). No

other obvious injuries were noted (Id.). A CT of the head and maxillofacial region was requested

and performed on November 21, 2015, at 3:38 a.m. (Id., ¶ 22). The CT of the head did not show

any fractures or intracranial hemorrhage (Id.). The CT of the maxillofacial region did not show

any traumatic injury (Id.). An x-ray of the right tibia and fibula was performed on November 21,

2015, at 7:09 p.m. and was negative for injury (Id., ¶ 23). The United States asserts that there was

no mention of right shoulder pain immediately after the fall or in the several hours following the

initial injury by any of the healthcare providers in the medical record (Id., ¶ 24). Ms. Hayes

contends that this claim is misleading as Mr. Bealer was only minimally able to communicate at

the time (Dkt. No. 16, ¶ 2).

On November 22, 2015, a right shoulder x-ray was performed because Mr. Bealer began

to complain of right shoulder pain (Dkt. No. 13, ¶ 25). The x-ray showed an abnormal sclerotic

density in the surgical neck of the humerus and slight inferior location of the humeral head was

identified (Id.). An orthopedic consult was obtained on November 23, 2015 (Id., ¶ 26). The

orthopedic consult note mentions that Mr. Bealer was not using his right upper extremity as much

as a left upper extremity (Id.). However, when providers asked whether Mr. Bealer had any right

shoulder pain, he did not answer (Id.). A physical exam of the shoulder showed no pain on

palpation, and, as stated by the physician, “the patient [did] not grimace to palpation or with range

of motion of the right shoulder” (Id., ¶ 27). A right upper extremity sling was recommended along

with a two-week follow-up in the orthopedic clinic (Id.). No surgical intervention was indicated

based on the nature of the possible injury and likelihood of complete healing (Id.). Mr. Bealer’s

medical history includes an April 27, 2009, shoulder x-ray that showed an irregularity of the

surgical neck of the humerus with callus formation consistent with healed fracture (Id., ¶ 28). This

x-ray was taken a few months following a reported motor vehicle accident in February 2009 (Id.).

In addition, Mr. Bealer’s medical history includes a November 12, 2010, right shoulder x-ray,

which showed some impaction and some callus formation at the previous femoral neck fracture

(Id., ¶ 29).

An oncology consult was obtained on November 23, 2015, and Mr. Bealer’s daughter

reported 20-pound weight loss in the previous three months (Id., ¶ 30). An oncology consult was

obtained, and the oncologist’s impression was that the tumor was a second primary malignancy,

because it was identified 12 years after the initial diagnosis of squamous cell carcinoma of the

larynx (Id., ¶ 31). Mr. Bealer was deemed not to be a suitable candidate for treatment due to the

extent of tumor involvement, advanced age, poor nutritional status, and poor performance status

(Id., ¶ 32). Palliative care and inpatient hospice care were recommended (Id., ¶ 33). He was

subsequently transferred to inpatient hospice care team for symptom management (Id.). Mr.

Bealer was found to have a new right-sided head and neck malignancy 12 years after his diagnosis

of squamous cell carcinoma of the larynx which was appropriately treated and was deemed cured

after five years of no disease recurrence (Id., ¶ 34).

The differential diagnosis of malignancy in this region following the treatment of head and

neck carcinoma in the past includes a new head and neck carcinoma due to field cancerization

effect induced by smoking (Id., ¶ 35). Smoke-induced field cancerization is a known etiological

factor to induce new malignancy in the head and neck region, esophagus, and lung (Id., ¶ 36).

Other differential diagnoses include aggressive lymphomas and radiation-induced pleomorphic

sarcoma (Id., ¶ 37). Radiation-induced pleomorphic sarcomas are aggressive soft tissue

malignancies arising in the soft tissue structures of the previously radiated regions (Id., ¶ 38).

Radiation induced pleomorphic sarcoma is a very likely diagnosis based on the short duration of

the development of true symptoms related to the malignancy, a few weeks as mentioned in the

medical record (Id., ¶ 38). The tumor extended from the region of prior radiation and surgical

intervention extending superiorly to intracranial region (Id.). This disease generally manifests

infiltrative rapid growth (Id.). Radiation-induced pleomorphic sarcoma is high in this case,

particularly in the setting of typical onset of the second malignancy 12 years after the radiation

therapy arising at the previously radiated site and aggressive infiltration and destruction of the

tumor at the involved spine and middle and posterior cranial fossae and short duration of symptoms

(Id., ¶ 39). In appropriately selected patients, these sarcomas are treated with preoperative

combination chemotherapy followed by surgical resection (Id., ¶ 40). Patients who are not suitable

surgical candidates are treated with combination systemic chemotherapy to improve the

progression free survival (Id.). Prognosis generally is dismal (Id.).

The chemotherapeutic agents used for sarcomas are highly toxic (Id., ¶ 41). Hence, the

risk of toxicity and severe treatment related illness would have clearly outweighed the potential

benefit for Mr. Bealer (Id.). Squamous cell carcinoma of the head and neck region are generally

slow growing malignancies with symptoms spanning over a few months before the diagnosis is

made due to the insidious nature of the malignancy and location (Id., ¶ 42). Such malignancy with

extensive involvement of the cervical region and intracranial extension is an incurable disease

(Id.). In a patient appropriate for treatment, only palliative chemotherapy could have been

instituted to improve the progression free survival (Id., ¶ 43). However, the response to systemic

chemotherapy is modest (Id., ¶ 44). In a patient with poor performance and poor nutritional status,

the risk of toxicity of systemic chemotherapy would have far outweighed the benefit of treatment

(Id.). Palliative care would have been recommended in Mr. Bealer’s case (Id.). Aggressive non-

Hodgkin’s lymphoma is a less likely differential diagnosis, and it is treated with combination

systemic chemotherapy (Id., ¶ 45). Mr. Bealer would not have been a candidate for treatment since

the risk of toxicities with combination chemotherapy and death outweighed the benefit (Id.).

According to his daughter, Mr. Bealer had cognitive decline in the recent past (Id., ¶ 46). His

mental status declined rapidly during his hospitalization which does raise the possibility of

involvement of the meninges with the malignancy, possible leptomeningeal, and extension of

malignancy in the spinal fluid (Id.). The likely cause of Mr. Bealer’s death was head and neck

malignancy with intracranial extension of the disease resulting in cognitive decline and possible

leptomeningeal spinal fluid involvement raising the intracranial pressure (Id., ¶ 47).

The United States asserts that Mr. Bealer did not mention right shoulder pain immediately

after his November 21, 2015 fall, that he did not verbalize whether he hit his right shoulder during

the fall, and that he only mentioned soon after that fall that he hit his head and jaw (Id., ¶ 48). Ms.

Hayes challenges this assertion as misleading, claims that Mr. Bealer was only minimally able to

communicate at the time, and notes that Mr. Bealer was suffering from a rapid decline in mental

status (Dkt. No. 16, ¶ 2). The United States claims that the November 22, 2015, right shoulder x-

ray did show sclerotic changes at the surgical neck of the humerus but that, in the absence of pain

upon palpation and range of movement per the orthopedic resident’s note, a new fracture of the

neck and of the humerus is less likely, particularly in light of the fact that the previous x-rays in

2009 and 2010 revealed a healed impacted right humerus neck fracture (Dkt. No. 13, ¶ 49). The

United States claims that the sclerotic changes and slightly inferior location of the humeral head

were likely due to the previous fracture in 2009 followed by healing with healing bone impaction

as was evident on the right shoulder x-ray in 2010 (Id., ¶ 50). Additionally, the United States

claims that the cervical tumor could have been the cause of any right shoulder pain and that the

extensive involvement of the cervical vital structures by the tumor is clear as mentioned in the

above-mentioned CT soft tissue neck examination (Id., ¶ 51). Further, the United States claims

that the cervical nerve dermatome C3 and C4 provide the sensory coverage to the shoulder region

(Id., ¶ 52). Due to the extent of the tumor described, referred pain because of cervical nerve root

C3 and C4 involvement by the tumor or involvement anywhere in the path to the skin could result

in referred shoulder pain without any structural injury to the shoulder or surrounding structure

(Id.). Ms. Hayes disputes these claims and maintains that the proof in the record does not support

them (Dkt. No. 16, ¶ 3).

Mr. Bealer was transferred to palliative care service after the malignancy and was

diagnosed and deemed untreatable and terminal (Dkt. No. 13, ¶ 53). It was not the right humerus

abnormality or any head, jaw, or chin injury that led to the transfer of Mr. Bealer to the inpatient

palliative care team (Id., ¶ 54). The United States claims that Mr. Bealer’s right humerus fracture

would not have triggered the events that caused Mr. Bealer’s death on December 5, 2015, but Ms.

Hayes disputes that claim and asserts that it is contradicted by the findings on Mr. Bealer’s death

certificate1 (Dkt. Nos. 13, ¶ 55; 16, ¶ 4). The location and nature of such a right shoulder injury

does not result in marked blood loss, multi-organ failure, or death (Dkt. No. 13, ¶ 56). Mr. Bealer’s

head, jaw, or chin injury as a result of the fall did not cause his death on December 5, 2015 (Id., ¶

57). The United States claims that Mr. Bealer died of the head and neck cancer rather than the fall

of November 21, 2015, and Ms. Hayes disputes that claim and maintains that the proof suggests

the fall and shoulder injury were factors in Mr. Bealer’s death based on the findings of the death

certificate (Dkt. Nos. 13, ¶ 58; 16, ¶ 5).

Dr. John Gocio of the CAVHS had an “institutional disclosure”—an official CAVHS

communication of an adverse event—regarding the November 21, 2015, fall with Mr. Bealer’s

family on November 24, 2015 (Dkt. No. 13, ¶ 63). Ms. Hayes completed a Standard Form 95

claim for damage, injury, or death on December 1, 2017, and mailed her form via the United States

1 Ms. Hayes has submitted a copy of Mr. Bealer’s death certificate (Dkt. No. 16-1).

Postal Service (“USPS”) the following day (Dkt. No. 13-2, at 3-4, 10-11). The Department of

Veterans Affairs (“VA”) time stamped Ms. Hayes’ administrative claim for medical negligence

on behalf of Mr. Bealer as received on December 7, 2017 (Dkt. Nos. 13, ¶ 59; 13-2, at 3). Ms.

Hayes’ USPS tracking documentation shows that the administrative claim was “delivered to mail

room” of a VA location in Jackson, Mississippi, on December 5, 2017 (Dkt. Nos. 13, ¶ 60; 13-2,

at 10-13). The VA’s Office of the General Counsel denied Ms. Hayes’ administrative claim on

May 29, 2018 (Dkt. Nos. 13, ¶ 62; 13-2, at 15).

II. Legal Standard

Summary judgment is proper if there is no genuine issue of material fact for trial.

UnitedHealth Group Inc. v. Executive Risk Specialty Ins. Co., 870 F.3d 856, 861 (8th Cir. 2017)

(citing Fed. R. Civ. P. 56). Summary judgment is proper if the evidence, when viewed in the light

most favorable to the nonmoving party, shows that there is no genuine issue of material fact and

that the defendant is entitled to entry of judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). “In ruling on a motion for summary judgment ‘[t]he district court must base

the determination regarding the presence or absence of a material issue of factual dispute on

evidence that will be admissible at trial.’” Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 923 (8th

Cir. 2004) (internal citations omitted). “Where the record taken as a whole could not lead a rational

trier of fact to find for the non-moving party, there is no genuine issue for trial.” Johnson Regional

Medical Ctr. v. Halterman, 867 F.3d 1013, 1016 (8th Cir. 2017) (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A factual dispute is genuine if the evidence

could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d

854, 860 (8th Cir. 2008). “The mere existence of a factual dispute is insufficient alone to bar

summary judgment; rather, the dispute must be outcome determinative under the prevailing law.”

Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).

However, parties opposing a summary judgment motion may not rest merely upon the

allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial

burden is on the moving party to demonstrate the absence of a genuine issue of material fact.

Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that

there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366

(8th Cir. 2008), cert. denied, 522 U.S. 1048 (1998). “The evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).

III. Analysis

The United States moves for summary judgment on the following grounds: (1) Ms. Hayes

has no medical expert proof on cause of death as required under Arkansas law; (2) the

beneficiaries’ wrongful death action is derivative of the underlying tort; (3) the testimony of Atif

Khan, M.D., a hematology oncologist practicing in Batesville, Arkansas, establishes that Mr.

Bealer died of head and neck cancer rather than as a result of his fall; and (4) the medical

negligence claim is time-barred (Dkt. No. 11, ¶¶ 4-9). In response, Ms. Hayes argues the

following: (1) the United States’ motion should be denied as untimely; (2) there is adequate proof

of causation and causation is usually a jury question; (3) Dr. Khan’s opinion on cause of death

does not address or contradict the death certificate; and (4) the “discovery rule” renders her medical

negligence claim timely (Dkt. No. 15, ¶¶ 1-5).

A. Timeliness Of Motion

Ms. Hayes argues that this motion should be denied as untimely (Dkt. No. 17, at 1-2). The

Court notes that the Final Scheduling Order set December 12, 2019, as the motions deadline (Dkt.

No. 8). The United States moved for summary judgment on December 20, 2019, eight days past

the deadline (Dkt. No. 11). Ms. Hayes does not state any prejudice that she suffered due to the

filing of this motion, and she communicated to the Court that she anticipated the filing of a

dispositive motion in her status report filed on December 12, 2019 (Dkt. No. 10, ¶ 4). The United

States asserts that it miscalculated the deadline to file a motion for summary judgment as

December 27, 2019 (Dkt. No. 18, at 4). The Court accepts the United States’ motion for summary

judgment as timely filed “even though it was filed [eight] days after the deadline for dispositive

motions set by the Court’s scheduling order” because “the tardy filing did not prejudice [Ms.

Hayes] under the circumstances, [the United States] had told [Ms. Hayes] they intended to file the

motion, and there was no evidence defendants’ untimely filing was in bad faith.” Rustan v.

Rasmussen, 208 F.3d 218 (8th Cir. 2000) (citing Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599,

604-06 (10th Cir. 1997)) (unpublished).

B. Survival Action—Physical Pain And Suffering

The Arkansas Survival Statute allows a cause of action to survive the death of the injured

and be prosecuted on behalf of the estate after his death. Ark. Code Ann. § 16-62-101. That statute

provides, in pertinent part, that:

(a)(1) For wrongs done to the person or property of another, an action may be

maintained against a wrongdoer, and the action may be brought by the person

injured or, after his or her death, by his or her executor or administrator against the

wrongdoer or, after the death of the wrongdoer, against the executor or

administrator of the wrongdoer, in the same manner and with like effect in all

respects as actions founded on contracts.

. . .

(b) In addition to all other elements of damages provided by law, a decedent’s estate

may recover for the decedent’s loss of life as an independent element of damages.

Ark. Code. Ann. §§ 16-62-101(a)(1), (b).

Federal law bars tort claims against the United States unless they are presented in writing

to the appropriate federal agency within two years after such claim accrues. 28 U.S.C. § 2401(b).

The point in time at which a claim “accrues” under the FTCA is a matter of federal law. See

Brazzell v. United States, 788 F.2d 1352, 1355 (8th Cir. 1986) (citing Snyder v. United States, 717

F.2d 1193, 1195 (8th Cir. 1983)); Slaaten v. United States, 990 F.2d 1038, 1041 (8th Cir. 1993).

In actions for medical injury under the FTCA, a claim accrues when a plaintiff becomes aware of

the injury and its probable cause. See United States v. Kubrick, 444 U.S. 111, 120 (1979); Garza

v. U.S. Bureau of Prisons, 284 F.3d 930, 934 (8th Cir. 2002); Osborn v. United States, 918 F.2d

724, 731 (8th Cir. 1990). The Eighth Circuit recognizes an exception for medical malpractice

cases, including medical malpractice cases under the FTCA, in which the injury and cause are not

immediately known called the “discovery rule.” Osborn, 918 F.2d at 731 (citing Brazzell, 788

F.2d at 1355-56; Wollman v. Gross, 637 F.2d 544, 547 (8th Cir. 1980), cert denied, 454 U.S. 893

(1981)). Under the “discovery rule,” the claim “accrues when the plaintiff discovers[] or should

have discovered the cause of injury.” Id. (citing Brazzell, 788 F.2d at 1355-56). If the plaintiff

fails to take action despite possessing knowledge of harm and its cause, a defendant is entitled to

the limitations defense. See K.E.S. v. United States, 38 F.3d 1027, 1029 (8th Cir. 1994) (citing

Kubrick, 444 U.S. at 123-24). That fact holds true “even if plaintiff does not know that the injury

is legally redressable.” Id. (citing Kubrick, 444 U.S. at 123-24).

The United States argues that Ms. Hayes’ claim for physical pain and suffering as a result

of Mr. Bealer’s fall is time-barred (Dkt. No. 12, at 16-18). Though Ms. Hayes does not directly

respond to this allegation, Ms. Hayes argues that the claims in this action were timely filed within

two years of the discovery date of Mr. Bealer’s death on December 8, 2015 (Dkt. No. 17, at 6-7).

Without citing any legal support, Ms. Hayes also asserts that the United States should be barred

by laches from claiming that the administrative tort claim was untimely where the VA failed to

raise that defense in its initial denial of the administrative tort claim (Dkt. Nos. 13-2, at 15; 17, at

7). The United States replies that the record evidence shows Mr. Bealer’s injury was discovered,

at the latest, during the institutional disclosure on November 24, 2015, leaving the two-year

limitations period to expire on November 24, 2017, and rendering Ms. Hayes’ action outside the

statute of limitations (Dkt. No. 18, at 3-4).

Under Arkansas law, a plaintiff who brings an action under the AMMA may recover an

amount for the pain and suffering and mental anguish of the deceased resulting from alleged

malpractice. See Ark. Code Ann. § 16-114-208(a)(2). These types of damages cover only

conscious pain and suffering of the deceased; they do not apply to allegations of unconsciousness

or death. See McMullin v. United States, 515 F. Supp. 2d 914, 919 (E.D. Ark. 2007) (examining

claim for conscious pain and suffering); Dugal v. Commercial Standard Ins. Co., 456 F. Supp.

290, 292 (W.D. Ark. 1978) (same). However, the AMMA also provides for recovery, in the event

the alleged medical negligence causes death. See Ark. Code Ann. §§ 16-114-201(1), (3); 16-114-

202; see also Ruffins v. ER Arkansas, P.A., 853 S.W.2d 877, 879 (Ark. 1993) (concluding that

AMMA applies to all causes of action based upon medical negligence including wrongful death

actions).

The record evidence demonstrates the following facts: (1) Mr. Bealer fell on November

21, 2015, and sustained a laceration to the chin and an alleged right shoulder injury; (2) Mr.

Bealer’s right humerus fracture was discovered on November 22, 2015; and (3) on November 24,

2015, Dr. Gocio had an institutional disclosure with Mr. Bealer’s family that communicated Mr.

Bealer’s fall and resulting injuries to them (Dkt. Nos. 13, ¶¶ 20-27, 63; 20, at 128). Accordingly,

Ms. Hayes, on behalf of the estate, had up to and including November 24, 2017, upon which to

submit her administrative claim.2 However, Ms. Hayes did not submit her claim until December

2017 (Dkt. Nos. 13, ¶¶ 59-60; 13-2). Ms. Hayes did not present an administrative claim within

the two-year time limit as required; therefore, her claims under the FTCA as prosecuted in

substance under the AMMA are time-barred. See 28 U.S.C. § 2401(b). This Court rejects any

argument that, on the undisputed record evidence even construing all inferences in favor of Ms.

Hayes, the continuous treatment doctrine or the tolling doctrine apply to alter the limitations

period. Accordingly, the Court grants summary judgment in favor of the United States on Ms.

Hayes’ physical pain and suffering claims.

C. Survival Action—Loss Of Life Claim

For actions brought under the FTCA, courts must apply the law of the state in which the

acts complained of occurred. Goodman v. United States, 2 F.3d 291, 292 (8th Cir. 1993). Under

Arkansas Law, a plaintiff bringing an action for medical injury must prove the applicable standard

of care and deviation therefrom, unless the asserted negligence is a matter of common knowledge.

See Ark. Code Ann. § 16-114-206(a)(1)-(2); Broussard v. St. Edward Mercy Health Sys., Inc., 386

S.W.3d 385, 388-89 (Ark. 2012). Moreover, “[i]n any action for medical injury, when the asserted

negligence does not lie within the jury’s comprehension as a matter of common knowledge,”

Arkansas law requires a plaintiff to prove “[b]y means of expert testimony provided only by a

2 The United States does not concede that November 24, 2015, is definitively the

appropriate accrual date (Dkt. No. 12, at 17). However, since November 24, 2015, is the latest

possible date upon which these pain and suffering claims accrued and the Court is required to

construe all record evidence in favor of Ms. Hayes, the Court uses that date at this stage of the

proceedings.

qualified medical expert that as a proximate result thereof the injured person suffered injuries that

would not otherwise have occurred.” Ark. Code Ann. § 16-114-206(a)(3). The Supreme Court of

Arkansas has clarified this expert testimony requirement in the following manner:

We have held that the proof required to survive a motion for summary judgment in

a medical malpractice case must be in the form of expert testimony. Oglesby v.

Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995). It is simply not

enough for an expert to opine that there was negligence which was the proximate

cause of the alleged damages. Aetna Casualty & Surety Co. v. Pilcher, 244 Ark.

11, 424 S.W.2d 181 (1968). The opinion must be stated within a reasonable degree

of medical certainty or probability. Montgomery v. Butler, 309 Ark. 491, 834

S.W.2d 148 (1992).

Ford v. St. Paul Fire & Marine Ins. Co., 5 S.W.3d 460, 463 (Ark. 1999). Finally, the medical

malpractice statute “implements the traditional tort standard of requiring proof that ‘but for’ the

tortfeasor’s negligence, the plaintiff’s injury or death would not have occurred.” Id. at 462-63.

The United States argues that Ms. Hayes’ sole expert, Stacy Harris, R.N., CLNC, has

specifically testified that she is not qualified to render a medical opinion on the cause of Mr.

Bealer’s death (Dkt. No. 12, at 10). Since Ms. Hayes presents no other experts, the United States

claims that Ms. Hayes fails to establish that, but for the fall, Mr. Bealer’s death would not have

otherwise occurred (Id., at 10-11). Consequently, the United States claims that Ms. Hayes’ proof

on the estate’s loss of life claim fails and that summary judgment is warranted on the death claim

of the estate (Id., at 11). Ms. Hayes responds that she has adequate proof of proximate cause to

survive summary judgment (Dkt. No. 17, at 2-4). Specifically, Ms. Hayes identifies the death

certificate as competent proof on proximate cause of the wrongful death claim to withstand the

United States’ motion for summary judgment and reserve the question of causation for trial (Id.,

at 3-4). The United States replies that the death certificate alone does not create an issue of

disputed fact and that Ms. Hayes’ failure to present a qualified medical expert willing to testify

about this document or Mr. Bealer’s cause of death dooms her claim under Arkansas law (Dkt.

No. 18, at 2-3).

The Court finds that the standard of care required to protect Mr. Bealer from injury given

his physical condition at the time of his fall is not a matter of common knowledge and must be

established through expert testimony from a healthcare provider. Therefore, Arkansas law requires

Ms. Hayes to present expert testimony to prove her claim of medical negligence as it relates to the

medical care Mr. Bealer received. The Court finds this expert testimony necessary to comport

with Arkansas law despite Ms. Hayes’ submission of Mr. Bealer’s certificate of death. See

Howard v. United States, No. 4:16-cv-00687, 2019 WL 1442199, at *17, *21 (E.D. Ark. Mar. 31,

2019) (requiring expert testimony to prove plaintiff’s claim of medical negligence as it related to

medical care decedent received despite plaintiff’s submission of decedent’s death certificate).

As the United States points out, the death certificate itself is ambiguous as to cause of

death, with the “immediate cause” and “final disease or condition resulting in death” listed as

“Head and Neck Cancer” on line 20.a. of the form (Dkt. No. 16-1). Then, presumably in response

to the direction to “list condition, if any, leading to the cause listed” as the immediate cause and in

response to the direction to enter the underlying cause, defined as the disease or injury that initiated

the events resulting in death, last in a list, the individual completing the form listed these causes in

the following order: on 20.b. “Sec. of the Epiglottis”; on 20.c. “S/P total laryngectomy”; and on

line 20.d. “Right Humeral Fracture.” (Id.). When asked to identify the manner of death on line

22 of the form, the individual completing the form marked the “natural” box instead of the

“accident” box (Id.). Ms. Hayes has come forward with no sponsoring witness or expert witness

to testify as to the meaning of the death certificate or what was intended by completing the form

in this way. Ms. Harris, Ms. Hayes’ sole expert, has specifically testified that she is not qualified

to render a medical opinion on the cause of Mr. Bealer’s death (Dkt. No. 12, at 10), and Ms. Hayes

does not contest this point through argument or record evidence. Furthermore, under Arkansas

law, registered nurses are unqualified to offer expert opinions of the proximate cause of death. See

Girlinghouse v. Capella Healthcare, No. 6:15-cv-6008, 2016 WL 5539610, at *7 (W.D. Ark. Sept.

28, 2016) (citing Neal v. Sparks Reg’l Med. Ctr., 422 S.W.3d 116, 122 (Ark. 2012)).

In fact, the only offered expert medical testimony in the record is Dr. Khan’s conclusion

that Mr. Bealer died of the head and neck cancer rather than his fall on November 21, 2015 (Dkt.

No. 13-1, ¶ 58). Ms. Hayes fails to meet proof with proof at the summary judgment stage on the

record evidence before the Court. “[M]ere possibilities” are insufficient to raise a triable issue of

fact. Day v. United States, 865 F.3d 1082, 1087 (8th Cir. 2017) (citing Flentje v. First Nat’l Bank

of Wynne, 11 S.W.3d 531, 538 (Ark. 2000)). Accordingly, Ms. Hayes’ loss of life claim fails, and

the Court grants summary judgment in favor of the United States on the death claim of the estate.

D. Wrongful Death Action—Statutory Beneficiaries’ Claim

The Arkansas Wrongful Death Statute states, in pertinent part, that:

Whenever the death of a person or an unborn child as defined in § 5-1-102 is caused

by a wrongful act, neglect, or default and the act, neglect, or default would have

entitled the party injured to maintain an action and recover damages in respect

thereof if death had not ensued, then and in every such case, the person or company

or corporation that would have been liable if death had not ensued shall be liable to

an action for damages, notwithstanding the death of the person or the unborn child

as defined in § 5-1-102 injured, and although the death may have been caused under

such circumstances as amount in law to a felony.

Ark. Code Ann. § 16-62-102(a)(1). In addition to the claim brought on behalf of the estate, the

wrongful death statute allows certain enumerated statutory beneficiaries to recover damages for

their own individual personal loss. See Ark. Code Ann. §§ 16-62-102(d), (f). This statute allows

damages in the form of pecuniary damages, including a spouse’s loss of companionship and

services and the mental anguish for the loss of a loved one. See Ark. Code Ann. § 16-602-

102((1)-(2)._ The Supreme Court of Arkansas has ruled that the wrongful death statute, as a

statutory creation, must be construed “strictly.” Estate of Hull vy. Union Pac. R.R. Co., 141 S.W.3d

356, 358 (Ark. 2004) (citing Babb v. Matlock, 9 S.W.3d 508 (Ark. 2000); Simmons First Nat’l

Bank vy. Abbott, 705 S.W.2d 3 (Ark. 1986); McGinty v. Ballentine Produce, Inc., 408 S.W.2d 891

(Ark. 1966)). Critically, under Arkansas law, wrongful death actions “are derivative of the

underlying tort committed against the decedent.” Day, 865 F.3d at 1088 (citing Hull, 141 S.W.3d

at 359 & n.3). The derivative nature of wrongful death actions under Arkansas law means that

“where the underlying tort action is no longer preserved, the wrongful death action is barred as

well.” Brown v. Pine Bluff Nursing Home, 199 S.W.3d 45, 48 (Ark. 2004) (citations omitted).

Because the Court grants summary judgment for the United States on Ms. Hayes’

underlying loss of life tort action, Ms. Hayes’ wrongful death claims also fail. See Day, 865 F.3d

at 1088 (‘Because the medical-malpractice claims fail in the present case, so too must the

wrongful-death claims.” (citing Brown, 199 S.W.3d at 48; Hull, 141 S.W.3d at 359-60)).

Accordingly, the Court grants summary judgment for the United States on Ms. Hayes’ wrongful

death claims.

IV. Conclusion

For the foregoing reasons, the Court grants the United States’ motion for summary

judgment (Dkt. No. 11). The Court denies Ms. Hayes the relief she seeks and dismisses with

prejudice her claims (Dkt. No. 1). Judgment will be entered accordingly.

It is so ordered, this 31st day of January, 2020.

Kushne A. Palisa

Kristine G. Baker

United States District Judge

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