In a Medical Malpractice Case, Medical Expert Must Provide Clear, Specific Evidence of Causation

Case: Scott v. Nichol, 2022 Ark. App. 255

Trial Court: Jefferson County Circuit Court (Judge Wyatt)

Issue: In a medical malpractice case, what level of specificity in a medical expert affidavit is necessary to avoid summary judgment on the issue of causation?

Holding: The affidavits must, at a minimum, state the manner in which the medical professional erred, set forth how the patient was injured, and opine that the injury was caused by this mistake.

Summary: In 2016, Curtis Scott filed a medical malpractice action against, as relevant here, Dr. Currin Nichol. The suit alleged that he presented to Jefferson Regional Medical Center (JRMC) with reported symptoms of numbness and tingling in his right arm and lips. He had elevated blood pressure and was out of his blood pressure medicine. The opinion details Dr. Nichol’s actions and the subsequent developments:

According to the complaint, Dr. Nichol developed a working diagnosis of “CVA, Hemorrhagic, CVA, Ischemic, Electrolyte Abnormality, TIA, Hypertension/Anxiety.” A CT scan was ordered. On the basis of the results of the scan and clinical observations, Dr. Nichol made a diagnosis of “Hypertension, Stress reaction.” Scott was discharged; given a prescription for blood-pressure medicine; and told to return if his condition worsened and to follow up with his primary-care doctor. Scott continued to have symptoms on July 22 and went to Baptist Medical Center in Little Rock. While at Baptist, doctors and staff ordered a carotid Doppler ultrasound, an MRI of Scott’s brain, and an echocardiogram, which revealed that Scott had a stroke.

Op. at 2.

Among the allegations in Scott’s complaint were that Dr. Nichol erred in failing to diagnose his stroke, causing a delay in his diagnosis, and failing to use the proper diagnostic tools appropriate for someone with his symptoms. Following discovery, Nichol filed a motion for summary judgment asserting that Scott had failed to properly identify expert medical testimony and, therefore, could not meet its burden of proof for a medical malpractice case. Attached to Scott’s response to the motion was an affidavit from Dr. Douglas Geiger. He attached an additional affidavit from Dr. Lee Davis in a sur-reply. Dr. Nichol sought to have this last pleading struck as improper.

The circuit court granted summary judgment, identifying multiple defects in the affidavits and holding that, even if it did consider the sur-reply and accompanying affidavit, its decision would be the same:

In its findings and conclusions entered April 9, the court found that Dr. Geiger’s affidavit failed to set forth any facts to indicate he is qualified to testify on matters concerning emergency medicine or care provided to a possible stroke victim; to establish that Dr. Geiger has any knowledge of the applicable standard of care, the facilities at Jefferson Regional, or how it may be similar to communities where Dr. Geiger has practiced; to set forth the applicable standard of care at the time Dr. Nichol treated Scott; to establish that Dr. Nichol breached the standard of care in Jefferson County; and to establish proximate cause. Although noting that Dr. Nichol’s objections to Dr. Davis’s affidavit were most likely correct, the court found the affidavit did not change the outcome because it also failed to set forth the required expert proof to defeat summary judgment. Specifically, the court found that it failed to address the applicable standard of care; how Dr. Nichol breached the standard of care; and proximate cause.

Op. at 4. On appeal, Scott argued that the Geiger affidavit set forth the information necessary to thwart the defendant’s summary judgment motion.

The Court of Appeals first quoted the relevant portion of the Arkansas Medical Malpractice Act to set forth the plaintiff’s burden of production in an Arkansas medical malpractice case:

In a medical-malpractice action, unless the asserted negligence could be comprehended by a jury as a matter of common knowledge, a plaintiff must prove the following:

(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)(1)–(3). The 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. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 437, 5 S.W.3d 460, 462– 63 (1999).

Op. at 5.

The relevant portion of the affidavit stated:

[The] evaluation, treatment, and care of Curtis Scott by Dr. Nichol was below the standard of care expected of reasonable practitioners and physicians, which led to a delay of diagnosis, delay of receiving appropriate physician care, and increase [sic] chance of morbidity. The aforementioned acts resulted in a breach of the duty of care, which proximately causes injury to Curtis Scott.

Op. at 6.

Noting that a plaintiff must supply expert testimony that demonstrates negligence and causation for the purported injury and be stated within a reasonable medical certainty, the court held the Geiger affidavit was vague and conclusory, failed to connect Dr. Nichol’s purported missteps to Mr. Scott’s injuries, and, by using only the term “morbidity”, actually failed to even adequately identify the injury:

The assertion of an increased chance of morbidity fails to identify an injury. Moreover, Dr. Geiger’s affidavit does not address how keeping him in the hospital or ordering an MRI would have prevented injury to Scott. Our supreme court has held that a “vague and conclusory statement” that a certain treatment “did not conform to the standard of care” is not sufficient to establish proximate cause in order to defeat summary judgment. Fryar v. Touchstone Physical Therapy, Inc., 365 Ark. 295, at 302, 229 S.W.3d 7, at 13 (2006) (affirming summary judgment where medical expert’s affidavit did not connect the physical therapist’s alleged negligence with the plaintiff’s injuries); see also Johnson v. Schafer, 2018 Ark. App. 630, 565 S.W.3d 144.

Op. at 7. Holding that such an affidavit could not create a fact question on several elements of Mr. Scott’s claim, the court affirmed the grant of summary judgment. The ruling on Dr. Davis’ affidavit, only lightly contested, was also affirmed.

Bottom Line: The summary judgment stage is a crucial aspect of any case. Unlike in some other civil cases, plaintiffs in medical malpractice cases generally must provide medical opinion evidence. Clear, component expert testimony is necessary to make it to trial.