NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CA00-1110

JUNE 27, 2001

GAIL PARKERSON

AN APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT

v. [CIV92-422]

JAMES ARTHUR, M.D., ALLAN HONORABLE JOHN A. THOMAS, GOCIO, M.D. AND HOT SPRINGS CIRCUIT JUDGE

NEUROSURGERY CLINIC, P.A.

APPELLEES AFFIRMED IN PART; REVERSED

AND REMANDED IN PART

This appeal comes from an order of the Garland County Circuit Court granting a summary judgment in favor of appellees, Dr. James Arthur and Dr. Allan Gocio, who are neurosurgeons practicing at the Hot Springs Neurosurgery Clinic. We hold that the trial court erred in granting summary judgment on appellant's claim of battery and the qualification of Dr. C.W. Parkerson as an expert witness on the issue of informed consent.

On March 20, 1990, the appellees performed an anterior cervical diskectomy and fusion surgery on appellant. During the surgery, the appellees used an artificial block as graft material to surgically join appellant's vertebrae. The graft material used by the appellees was a product called "Orthoblock," which is a ceramic material made of a dense form of hydroxylapatite. Orthoblock had not been developed by its manufacturer, Calcitek, Inc., or approved by the Food and Drug Administration (FDA), for use in anterior cervical diskectomy procedures. Following the surgery, appellant began to experience pain in her left arm and shoulder and was diagnosed on April 9, 1990, with postoperative cervical nerve root swelling and pain. Thereafter, appellant received pain medication prescribed by Dr. Gocio and was readmitted to St. Joseph's Regional Health Center for physical therapy and pain control.

On June 15, 1992, appellant filed a medical negligence suit against appellees alleging that they were negligent in their surgical performance on March 20, 1990, and their medical care of her during and after the surgery. Appellant alleged that appellees "denied [her] request for an MRI and were not available or taking proper responsibility for medication or medical help for [her]." She further alleged that she was still experiencing pain as a result of the surgery and the lack of medical attention received from the appellees. Appellees denied the allegations in the complaint and then moved for a summary judgment on October 14, 1992, based on statute of limitations grounds. The trial court granted appellees' motion for summary judgment on December 4, 1992, but subsequently set aside its order granting the motion.1 On August 4, 1993, appellant filedan amended complaint alleging that the appellees inserted an artificial block (Othoblock) to fuse the joint between her vertebrae during the cervical fusion surgery performed on March 20, 1990, and that "she was not warned of its use or anything regarding its nature." She alleged that Orthoblock was used in certain dental procedures and that it was not FDA approved as a bone graft substitute in cervical fusion procedures. Appellant alleged that she would not have consented to the use of Orthoblock had she known of any risks and hazards involved with using it, and that the implantation of Orthoblock into her body without informed consent constituted medical negligence, the tort of battery, the tort of outrage, and the tort of fraud.2 Appellant also sought compensatory and punitive damages.

On February 22, 2000, appellees filed a fourth motion for summary judgment on all claims against them.3 In support of their motion, appellees attached numerous records of appellant's medical care providers and the affidavit of Dr. Steven Cathey, a neurosurgeon practicing in North Little Rock, Arkansas. Dr. Cathey testified that he was familiar with the standard of care applicable to neurosurgeons in Hot Springs, Arkansas, and that after reviewing appellant's amended complaint and various medical records and diagnostic studies associated with appellant's anterior cervical diskectomy and fusionsurgery performed on March 20,1990, it was his opinion that the Orthoblock used in the surgery did not cause the symptoms that appellant complained of following the surgery. Dr. Cathey stated that "no matter what material [was] used, patients having this surgery often have residual symptoms." He stated that appellees adhered to the applicable standard of care in the performance of the surgery and that the appellant's condition would not have improved by the use of a bone bank or her own bone in the performance of the fusion surgery. Dr. Cathey also opined that there was no evidence of negligence or malpractice on the part of the appellees, and that there was "no medical causation between [appellant's] complaints and the use of Orthoblock rather than other materials to accomplish the fusion at issue in this case." Dr. Cathey stated that his opinions were based upon a reasonable degree of medical certainty.

In their brief in support of the motion, appellees argued that appellant had the burden of proving a lack of informed consent by expert testimony, and that the consent form signed by appellant prior to the March 20, 1990, surgery demonstrated that she had the opportunity to give informed consent to the surgery. The consent form referred by the appellees is stated as follows:

the procedures by which it will be accomplished, whether there are

other alternative methods of treatment, the possible consequences and

complications which may result from the operation and the risks

involved, such as infection, cardiac arrest, etc., and I am executing

this consent and authorization with an understanding of this

explanation.

Neither Dr. Gocio nor anyone else has guaranteed to me any

particular results to be expected from this operation.

Appellees argued that with regard to appellant's battery claim, which was based on a lack of informed consent, the medical records indicated that informed consent was obtained. They further argued that there were no facts alleged in appellant's complaint which demonstrated the elements necessary to support her claim of fraud and the tort of outrage, and that appellant's complaint merely used "boilerplate language and conclusory allegations to describe [appellees'] alleged failure to obtain informed consent." Appellees also argued that the testimony of Dr. Cathey established that there was no evidence of negligence and proximate cause shown in this case.

In response to the appellees' motion for summary judgment, appellant argued informed consent was not given because she "only consented to surgery [sic] done known as anterior cervical fusion" and that "she had no knowledge of a device known as Orthoblock." Appellant also asserted that her father, Dr. C.W. Parkerson, who was present with her at the time of the surgery, was not aware of the risks and procedures involved with using Orthoblock. Appellant alleged that appellees committed the tort of battery by inserting Orthoblock in her spine and fraudulently concealing the fact that they had placed in her spine a material that was not approved for spinal surgeries.

As to the tort of fraudulent concealment, appellant argued that in a medical record of Dr. Gocio entitled "Procedures and Findings," Dr. Gocio referred to Orthoblock as a "bony block" and "bone graft." Appellant argued that in Adams v. Arthur, 333 Ark. 53,969 S.W.2d 598 (1998), the Arkansas Supreme Court found that "referring to Othoblock as `artificial bone' creates a fact question concerning fraudulent concealment." Appellant argued that Dr. Gocio committed the tort of outrage when he "did nothing to eliminate the root cause of the problem." On the issue of negligence, appellant primarily alleged that Dr. Gocio did not provide her with the level of medical care required following her surgery, and that he denied her a follow-up MRI to find the cause of her pain after the surgery. Appellant also alleged that Dr. Gocio stopped her from getting help from another neurosurgeon. Appellant further offered a list of persons she considered to be expert witnesses that would give "qualified medical testimony" and establish her "case for proximate cause."

Attached to appellant's response was the deposition testimony of Dr. George Allen, who addressed the issue of standard of care in a separate Orthoblock case, Hall v. Arthur, et al., No. 95-6047 (W.D. Ark.); an affidavit from Dr. Cecil Parkerson, appellant's father, a retired general practitioner; the deposition testimony of Dr. Edward Saer as an orthopaedic surgeon who expressed an opinion in Hall v. Arthur, supra; the deposition testimony of Dr. Gene Bolles who testified on the issue of informed consent in two other Orthoblock cases, Zearley v. Arthur, et al., No. CIV-93-413-2, and Morrison v. Arthur, et. al., No. CIV-93-73; and the affidavit of Claudia Jean Beverly, Ph. D., who stated that her opinions related to the "nursing standard of care" for a hospital. Appellant later submitted the affidavit of Dr. William Schulte, a retired oral surgeon.

At the hearing on appellees' motion for summary judgment, appellees argued thatthe depositions of Dr. Allen, Dr. Saer, and Dr. Bolles were inadmissible hearsay because they dealt with other Orthoblock cases. Appellees argued that Dr. Allen specifically stated in his deposition that his opinions in Hall, supra., were not applicable to any other case, and that Dr. Allen's prior deposition testimony would not conform with the exception to the hearsay for prior sworn statements for an unavailable witness. Appellees further argued that appellant failed to lay a proper foundation to qualify Dr. Parkerson as an expert witness, and that the affidavits of Dr. Schulte and Dr. Beverly were inadmissible because they failed to show that both of these persons were qualified to render an opinion on issues of informed consent and the standard of care applicable to a neurosurgeon in Hot Springs, Arkansas. At the hearing, appellant requested the trial court to grant her an extension of time to conduct further discovery. The trial court denied the request. In an order filed June 8, 2000, the trial court sustained the appellees' objections to the aforementioned exhibits and granted the appellees' motion for summary judgment. Appellant filed a motion for reconsideration on June 26, 2000, but the trial court denied the motion.

Appellant now argues on appeal that the trial court erred in excluding her expert witnesses and finding that there were no material or genuine issues of fact upon which reasonable minds could differ in this case.

Summary judgment is a remedy that should only be granted when there are no genuine issues of material fact and when the case can be decided as a matter of law. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995). Review is limited toexamining the evidentiary items presented below and determining whether the trial court correctly ruled that those items left no material facts disputed. Id. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Rankin v. City, 337 Ark. 599, 990 S.W.2d 535 (1999). When a movant makes a prima facie case showing entitlement, the respondent must meet proof with proof by showing that a genuine issue exists as to a material fact. Wilson v. J. Wade Quinn Co., 330 Ark. 306, 952 S.W.2d 167 (1997).

Admissibility of expert witnesses

The proof required to survive a motion for summary judgment in a medical malpractice case must be in the form of expert testimony. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). Whether to allow a witness to give expert testimony rests largely within the sound discretion of the trial court, and that determination will not be reversed absent an abuse of that discretion. Breslau v. McAlister, 72 Ark. App. 124, 35 S.W.3d 321 (2000). In determining the admissibility of expert medical testimony it is not critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the subject. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but regarding which he has an opinion based on education,experience, observation or association with that specialty, his opinion is competent. Id. If there is a reasonable basis to find that the witness has knowledge of a subject beyond that of ordinary knowledge, then the witness may be qualified as an expert. Hill v. State Farm Mut. Auto. Ins. Co., 56 Ark. App. 67, 937 S.W.2d 684 (1997). However, if a proper foundation is not laid, the witness should not be allowed to testify as an expert. Id.

Appellant now contends that the deposition testimony presented in response to the summary judgment motion was admissible pursuant to Ark. R. Civ. P. 32, and that the trial court should have granted her request for additional time to supplement her affidavits, depositions, and discovery pursuant to Ark. R. Civ. P. 56 (f). However, these arguments are not preserved for appeal because appellant failed to present them to the trial judge below. See Seeco, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000).

Appellant further contends that pursuant to Rule 56 (e) of the Arkansas Rules of Civil Procedure, both Dr. Parkerson and Dr. Schulte "set forth such facts in their affidavit to show they were competent to testify to the matters stated therein." Dr. William Schulte, a retired oral surgeon, testified that in his opinion a substance such as Orthoblock should never be used in a medical procedure involving the spine. He opined that appellees committed a breach of "professional ethics" by using a material device that was not approved for use in the human spine by the FDA for the anterior cervical fusion surgery performed by the appellees on March 2, 1990. However, there was no evidentiary foundation for Dr. Schulte to render an opinion on how appellees deviatedfrom the standard of care or disclosure standards applicable to neurosurgeons in the use of Orthoblock. The evidence showed that Dr. Schulte was not a medical doctor and there was no proof that Dr. Schulte possessed any knowledge, skill, training, experience, or education in neurosurgery. There was simply no proper foundation laid to show that Dr. Schulte had gained knowledge of the standard of care applicable to neurosurgeons. See Hardy v. Bates, 291 Ark. 606, 727 S.W.2d 373 (1987). On the other hand, Dr. Parkerson testified he has practiced general medicine for more than fifty years and has performed "many surgeries." He testified that he was familiar with the standard of care applicable to surgeons and that he has treated various patients in the Hot Springs area, including interacting with Hot Springs physicians in the treatment of patients. Dr. Parkerson stated that he was still practicing medicine at the time of appellant's surgery on March 20, 1990. Dr. Parkerson testified that he was present when appellant was handed the "typical" hospital consent form by the appellees and that neither he nor appellant gave the appellees consent to use Orthoblock for the anterior cervical fusion surgery. Dr. Parkerson testified that appellees deviated from the standard of care before, during, and after appellant's surgery, and that the "[appellant's] condition would be so much better, if she had had [sic] the standard anterior cervical fusion without the insertion of the experimental device which fractured and failed to bond." Dr. Parkerson stated that it was his opinion and belief as a physician that the cause of appellant's pain resulted from the March 20, 1990, surgical procedure administered by the appellees and the insertion of Orthoblock. Here, having read Dr. Parkerson's affidavit asabstracted, we are satisfied that Dr. Parkerson is knowledgeable by training and experience to recognize when the informed consent of a patient has been properly given prior to a surgical procedure. To reiterate, Dr. Parkerson had practiced general medicine for more than fifty years in this State, including his performance of many surgeries, and was familiar with the standard of care applicable to surgeons as well as practicing physicians in Hot Springs, Arkansas and similar communities. Dr. Parkerson had treated patients in Hot Springs and had interacted with Hot Springs physicians in the treatment of various patients. He was also given hospital privileges and practiced medicine at the time appellant was treated by the appellees. Our supreme court has stated that the test of qualifying an expert on the issue of informed consent is whether, on the basis of the witness's qualifications, he has knowledge of the subject at hand which is beyond that of ordinary persons. See Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995). Because the deposition of Dr. Parkerson established that he had knowledge of the subject at hand which was beyond that of ordinary persons, we conclude that the trial court erred in not qualifying Dr. Parkerson as an expert on the issue of informed consent. However, as to the issue of negligence, it is simply not enough for an expert to opine that there was negligence that was the proximate cause of alleged damages. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). The opinion must be stated within a reasonable degree of medical certainty or probability. Id. Because Dr. Parkerson did not state within a reasonable degree of medical certainty that the actions of appellees constituted medical negligence and the proximate cause of appellant's damages, wecannot say the trial court erred in not qualifying Dr. Parkerson as an expert witness on these issues.

Lack of informed consent

The physician's duty to disclose risks is measured by the customary practice of physicians in the community in which he practices or in a similar community. Aronson v. Harrison, 321 Ark. 359, 901 S.W.2d 832 (1995). The disclosure standard always requires expert medical testimony for the jury to determine whether a physician's failure to disclose constitutes a breach of his duty to disclose. Id. Arkansas Code Annotated section 16-114-206(b)(1)(1987), places on the plaintiff the burden of proving that the physician failed to supply the type of adequate information regarding the surgery as would have been given by other physicians in the same, or in a similar, locality. See Grice v. Atkinson, 308 Ark. 637, 826 S.W.2d 810 (1992).

Appellant contends that the trial court erred in granting summary judgment on her claims of battery, fraud, and the tort of outrage. However, appellant has based these claims on a lack of informed consent. The essence of these claims is that appellant was not informed of the implantation of Orthoblock in her surgical procedure and that she was not adequately informed of the risks associated with the procedure.

As we have previously stated, Dr. Parkerson was qualified to give expert testimony on the issue of informed consent or the lack thereof in this case. He stated that it was his belief that Dr. Gocio "would be providing material from the bone bank or bone from appellant's hip," and that appellees failed to obtain appellant's informed consent touse Orthoblock prior to her surgery. Therefore, appellant has provided some expert testimony to determine whether a genuine issue of material fact exists to support her claims of battery, outrage, and fraud based on a lack of informed consent.

For her claim of battery, appellant argued that appellees committed battery by inserting Orthoblock into her body. Appellant presented the testimony of Dr. Parkerson who stated that during his conversation with Dr. Gocio shortly before appellant's surgical procedure, he noticed that Dr. Gocio "wasn't making sense" and "acted like he was drugged." He further testified that it was his opinion that Dr. Gocio "consistently acted like he was `out of it' as if drugged or disoriented." These allegations establish at least some evidence for the jury to determine whether appellees committed the tort of battery in this case.

For her claim of the tort of outrage, appellant has simply claimed that appellees failed to "eliminate the root cause of [sic] problem." However, the appellate court gives a narrow view to the tort of outrage and requires clear-cut proof to establish the elements in outrage cases. See Fugua v. Flowers, 341 Ark. 901, 20 S.W.3d 389 (2000). Because appellant has failed to prove any of the elements necessary to establish the tort of outrage, we find no error of disposing of this claim by summary judgment. We further find no error in disposing of appellant's claim of fraudulent concealment by summary judgment. The Arkansas Supreme Court has held that fraudulent concealment must go beyond a mere failure to obtain an adequate informed consent. Johnson v. Arthur, 65 Ark. App. 220, 986 S.W.2d 874 (1999). It must rise to the level of some positive act offraud that is so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed or perpetrated in such a way that it conceals itself. Id. Here, appellant has presented no facts to establish that the appellees furtively planned or secretly executed to keep any of her causes of actions concealed. Even if appellees may have failed to adequately obtain appellant's informed consent regarding the use of Orthoblock in her surgery, we cannot say that the trial court erred in disposing of this issue in its grant of summary judgment.

Medical Negligence and Proximate Cause

Appellant also argues that there remains a genuine issue of material fact as to her claims of medical negligence and proximate cause.

Arkansas Code Annotated section 16-14-206 (a) (Repl. 1997) provides that in any action for medical injury, the plaintiff shall have the burden of proving: 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

(3) That as the proximate result thereof, the injured person suffered injuries

which would not otherwise have occurred.

The plaintiff's burden of proving the applicable standard of care and the defendant's failure to comply with that standard requires expert testimony when the assertednegligence does not lie within the jury's comprehension as a matter of common knowledge. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996).

In this case, appellees introduced an affidavit from Dr. Steven Cathey, a board-certified neurosurgeon practicing in North Little Rock, Arkansas. Dr. Cathey testified that he was familiar with the standard of care applicable to neurosurgeons practicing in Hot Springs and that he had reviewed the medical records and diagnostic studies involving the appellees' use of Orthoblock in appellant's anterior cervical diskectomy and fusion performed on March 20, 1990. In his affidavit, Dr. Cathey stated that the appellees adhered to the applicable standard of care in the performance of appellant's surgery, and that a good, stable fusion occurred as a result of the surgery. Dr. Cathey further stated that there no evidence of negligence in the appellees' performance of the March 20, 1990, surgery or their use of Orthoblock, and that there was no medical causation between the appellant's complaints and the use of Orthoblock to accomplish the fusion in this case.

As stated earlier, the only expert testimony appellant provided was on the issue of informed consent. Because the asserted negligence in this case could not lie within the jury's comprehension as a matter of common knowledge and appellant failed to provide expert testimony to rebut the medical testimony provided by appellees, we conclude that the trial court did not err in granting summary judgment as to appellant's claim of medical negligence and proximate cause.

For these reasons, we reverse and remand the trial court's grant of summary judgment on appellant's claim of battery and the qualification of Dr. C.W. Parkerson as an expert witness on the issue of informed consent. We affirm the trial court in all other respects.

Affirmed in part; reversed and remanded in part.

Hart and Vaught, JJ., agree.

1 Appellant filed a motion for reconsideration on December 9, 1992, refuting appellees' statute of limitations argument and arguing that the Arkansas Supreme Court decision of Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), which appellees relied in their motion for summary judgment, was delivered fourteen days after she filed her complaint. In an order filed January 4, 1993, the trial court granted appellant's motion for reconsideration and set aside appellees' motion for summary judgment finding that the supreme court had not spoken on the issues raised in the appellees' motion for summary judgment.

2 Appellant's claims of strict products liability and breach of warranty against Calcitek, Inc., were later resolved. She also asserted a medical malpractice claim against St. Joseph's Regional Health Center, where the March 20, 1990, surgery was performed, but summary judgment was later entered dismissing her claim against the hospital.

3 Appellees filed two prior summary judgment motions in September 1995 and January 1996 on statute of limitation grounds. The trial court denied both motions.