holding that once a warning of a medication’s side effects had been given that “patients must then bear the responsibility for the consequences of following, or not following such advice[,]”
How later courts described this case
- holding that once a warning of a medication’s side effects had been given that “patients must then bear the responsibility for the consequences of following, or not following such advice[,]”
- rejecting argument that medical center’s policy, which required staff to ensure that no colonoscopy patient was sedated unless patient had another person to drive patient from hospital, imposed duty to control patient and restrict her ability to leave medical center
- internal policy instructing that discharged patients not be allowed to drive could not create a legal duty where the law did not recognize one
- where expert failed to testify to standard of care in Little Rock, Arkansas
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice, concurring. I concur with the majority opinion and write merely to underscore the fact that in prior decisions, this court has dealt with the issue of duty of care owed in medical-malpractice cases in terms of the standard of care offered by providers of the same specialty in the same or similar locality. That standard is fixed by the General Assembly and reads as follows:
(a) In any action for medical injury, when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:
(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;
(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and
(3) By means of expert testimony provided only by a 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) (Supp. 2003) (emphasis added).
Our case law has relied on § 16-114-206(a) and specifically on the need for expert testimony regarding specialty and similar locality in deciding whether summary judgment or a directed verdict should be awarded. See, e.g., Eady v. Lansford, 351 Ark. 249 , 92 S.W.3d 57 (2002) (holding that where appellant failed to meet proof with proof in the form of expert testimony to demonstrate that appellee-doctor violated appropriate standard of care, trial court did not err in granting appellee-doctor’s summary-judgment motion); Reagan v. City of Piggott, 305 Ark. 77 , 805 S.W.2d 636 (1991) (holding that where appellant failed to present either expert or lay testimony as to the appropriate standard of care to be used, appellant failed to present any evidence indicating the existence of an issue of fact; thus, summary judgment was proper); Courteau v. Dodd, 299 Ark. 380 , 773 S.W.2d 436 (1989) (holding that affidavit of respiratory therapist, which offered nothing to sustain the Courteaus’ burden of proof of the standard of care under § 16— 114-206(a)(l), was insufficient to establish radiologist’s malpractice). See also Williamson v. Elrod, 348 Ark. 307 , 72 S.W.3d 489 (2002) (holding that where patient’s expert witness did not testify to what degree of skill and learning ordinarily possessed by doctors in good standing in Little Rock or similar locales was, patient failed to establish applicable standard of care, thereby warranting directed verdict in favor of appellant doctor).
A review of our case law reveals that in the past, we have conflated the term “duty of care” with the General Assembly’s “standard of care” set out in § 16-114-206(a). This is further evidenced by our model jury instruction for medical-malpractice cases, AMI Civ. 1501 (2005), which speaks in terms of “Duty,” but instructs on standard of care:
AMI 1501
DUTY OF PHYSICIAN, SURGEON, DENTIST OR OTHER MEDICAL CARE PROVIDER
In (diagnosing the condition of) (treating) (operating upon) (obtaining the informed consent of) a patient, a (physician) (surgeon) (dentist) (medical care provider) must possess and apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his/her profession in good standing, engaged in the same (type of service) [or] (specialty) in the locality in which he/she practices, or in a similar locality. A failure to meet this standard is negligence.
[In determining the degree of skill and learning the law required of_(and) (in deciding whether_used the degree of skill and learning the law required of him/her), you may consider only the evidence presented by the (physicians) (and) (surgeons) (dentists) (medical care providers) called as expert witnesses (and) (evidence of professional standards presented in the trial). In considering the evidence on any other issue in this case, you are not required to set aside your common knowledge, but you have a right to consider all the evidence in light of your own observations and experiences in the affairs of life.]
AMI Civ. 1501 (2005). 1
Nevertheless, as the majority opinion makes clear, the standard of care under the statute was not argued by either party. Rather, the issue debated was whether a duty on the part of The Gastro-Intestinal Center to control the patient was breached. We hold in the majority opinion that there is no such duty. I agree with that. But, in addition, I am swayed by the fact that the plaintiff in this case failed to present expert testimony regarding the standard of care employed for the same specialty in the same locality or in one that is similar. This lapse by the plaintiff is an alternative reason to affirm the summary judgment.
For cases in which a claim, accrued on or after March 25,2003, see AMI Civ. 1501A (2005). In the instant case, the plaintiffs alleged claim accrued on January 29,1999, the date of Mr. Young’s colonoscopy at The Gastro-Intestinal Center.