NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION I

CA01-1317

September 25, 2002

LESLIE FINN

APPELLANT AN APPEAL FROM SEBASTIAN COUNTY

CIRCUIT COURT

V. [NO. CIV98-616(II)]

HONORABLE JAMES MARSCHEWSKI

DON PHILLIPS and HOLT KROCK CIRCUIT JUDGE

CLINIC

APPELLEES AFFIRMED

This is a medical malpractice case brought by appellant on behalf of herself and her deceased newborn, Madison. The child, one of a set of premature twins, died of unknown causes shortly after being born in August 1996. Appellant sued, among others, the attending obstetrician, appellee Don Phillips. The trial court directed a verdict in Dr. Phillips's favor, which appellant urges us to overturn on appeal. We decline to do so and affirm.

Appellant discovered she was pregnant with twins in April 1996. On August 15, 1996, which was approximately her twenty-ninth week of pregnancy, she began experiencing bleeding and contractions. Her regular gynecologist, Dr. Feezell, hospitalized her for a week and administered medication to accelerate development of the babies' lungs and to slow the contractions. During an ultrasound, Dr. Feezell discovered that the lowertwin, Madison, was in a breech position, and he informed appellant that delivery would be by Caesarean section.

Appellant was released from the hospital on August 22. Three days later, she awoke with labor pains and bleeding. She called Dr. Feezell's office and left word with an answering service. The call was fielded by a nurse practitioner, who directed appellant to Sparks Regional Medical Center. Appellant arrived there at about 8:45 a.m. At that point, her contractions were two to five minutes apart, and Madison's heart rate was slightly accelerated.

Appellee Dr. Don Phillips, who was covering for Dr. Feezell, was notified at 9:03 a.m. of appellant's admission to the hospital. Dr. Phillips gave no orders over the phone, but arrived in the delivery room at 9:55 a.m. He conducted an ultrasound and discovered that Madison was no longer breech but had moved to a head-first position. Because of this, and because of appellant's history of quick deliveries, Dr. Phillips told appellant that she would have a vaginal delivery, and, at 10:04 a.m., he administered Nubain for pain.

At 10:15 a.m., Dr. Phillips broke appellant's membrane and attached a scalp monitor to Madison. The monitor enables a physician (after about 15 minutes of observation) to get an accurate reading on the baby's heart rate. Madison's heart rate was about 180 beats per minute at this time (normal being 120 to 160).

Dr. Phillips testified that at 10:30 a.m., with appellant being in active labor, he anticipated that the baby would be born within fifteen minutes. At 10:52 a.m., with the baby still not delivered, the scalp monitor was removed and appellant was transferred to the C-section operating room. When the monitor was re-attached at 10:58 a.m., Madison's heart rate had dropped to forty-four beats per minute. When she was born by vaginal delivery five minutes later, her heart rate was thirty-four. She never began breathing properly and died shortly after being transferred to a hospital in Tulsa. No cause of death was ever determined.1

As a result of Madison's death, appellant sued Dr. Phillips and Holt Krock Clinic in its capacity as Phillips's employer for negligence.2 At trial, she offered the expert testimony of Dr. Eugene Gootnick, who opined that Phillips had breached the applicable standard of care by failing to arrive at the hospital in a timely manner after being notified of appellant's admission; failing to have a surgical team ready to perform a Caesarian section; and administering Nubain for pain. Dr. Gootnick testified that these breaches, "resulted in certain effects on the baby ... as reflected in the fetal monitoring of that baby, which in turn, in all medical probability, led to the degree of damage, injury to the infant." He also testified that the baby's continued exposure to stress, as the result of not being delivered, "resulted in certain effects on the baby." Finally, he stated that the "continued exposure of [Madison] to the stresses that were causing these things being seen on the monitors absolutely reduced her chance of survival." Upon being cross-examined, Dr. Gootnick admitted that he did not know the cause of the baby's death. Further, he testified that if Dr. Phillips had arrived atthe hospital at 9:30 a.m. rather than 9:55 a.m., the circumstances would not have changed; that he didn't know if the baby was harmed by Nubain; that it would have been 10:30 a.m. before Phillips could have determined that a C-section was necessary; and that he could not say that the baby would have been born without problems if the C-section had been performed at 10:30 a.m. He did state that, if the baby had been saved thirty minutes of distress, "something may have happened."

At the close of appellant's evidence, Phillips moved for a directed verdict, which was granted. Appellant brings her appeal from that ruling.

In reviewing an order granting a directed verdict motion, we consider the evidence in the light most favorable to the party against whom the verdict was directed; if any substantial evidence exists that tends to establish an issue in favor of that party, it is error for the trial court to grant the directed verdict. Lakeview Country Club Inc. v. Superior Prods., 325 Ark. 218, 926 S.W.2d 428 (1996). Substantial evidence is that which goes beyond speculation or conjecture and is sufficient to compel a conclusion one way or the other. Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002).

In medical malpractice actions, a plaintiff has the burden of proving: 1) 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 practices or in a similar locality; 2) that the medical care provider failed to act in accordance with that standard; and 3) that as a proximate result thereof, the injured person suffered injuries which would not have otherwise occurred. Ark. Code Ann. § 16-114-206 (1987).

Appellant's theory at trial was that Dr. Phillips's negligence in the process of delivery reduced baby Madison's chance of survival. Appellant thereby sought recovery under the doctrine of "lost chance," which has not yet been recognized by the Arkansas Supreme Court. Although she asks us to adopt the doctrine in this case, we do not reach that issue, for reasons stated hereafter. Nevertheless, a brief explanation of the doctrine is helpful to an understanding of this case.

Our supreme court has referred to the lost chance of survival doctrine as "a novel theory of tort recovery." Holt v. Wagner, 344 Ark. 691, 43 S.W.3d 128 (2001). The concept of lost chance is employed in situations where a patient is already in peril because of an underlying condition, and the possibility of a more favorable outcome is denied, due to the defendant's negligence. See Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993). For example, if a patient with cancer would have had a forty percent chance of recovery had he been properly diagnosed, but now has a ten percent chance due to his physician's delay in diagnosis, the patient may, under the lost chance theory, seek compensation for that thirty percent reduction in his odds. The compensable injury is the destroyed opportunity for a more favorable result. See id.

Some jurisdictions permit recovery for "pure" loss of chance, meaning that a patient may recover for the reduction in his chance of survival, even if his chance of survival was less than fifty-one percent to begin with. See, e.g., Wendland v. Sparks, 574 N.W.2d 327 (Iowa 1998); Wollen v. DePaul Health Ctr., 828 S.W.2d 681 (Mo. 1992). Some jurisdictions permit lost chance recovery if the physician's negligence reduced a "substantial chance" of survival. See, e.g., Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 805 P.2d 589(1991). Still other jurisdictions retain the traditional approach to causation and hold that a plaintiff cannot recover for lost chance of survival unless he had a greater than even (i.e., fifty-one percent) chance of survival to begin with. See Kilpatrick v. Bryant, supra. While our supreme court has acknowledged the existence of the lost chance theory of recovery, it has not adopted the theory nor expressed a preference for any particular form of it. See Holt v. Wagner, supra; Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999); Blankenship v. Burnett, 304 Ark. 469, 803 S.W.2d 539 (1991); Blackmon v. Langley, 293 Ark. 286, 737 S.W.2d 455 (1987).

We hold that in the present case, even if we were to recognize the lost chance doctrine, a directed verdict was proper due to appellant's lack of proof on certain key elements. First, appellant's expert was unable to testify what chance of survival was lost in this case. Dr. Gootnick did not say what Madison's chance of survival would have been with optimum care, nor to what extent her chance of survival was reduced by Phillips's alleged negligence. Thus, the jury could not have known whether the baby lost, for example, a sixty percent chance or a five percent chance of survival. Appellant argues, citing McKellips v. St. Francis Hosp., 741 P.2d 467 (Okla. 1987), that an expert need not place a specific percentage on the lost chance. However, even if we were to agree with the Oklahoma case, an expert must give the jury more guidance than was provided in this case regarding what chance was lost. Medical malpractice cases require expert testimony for matters that are not within a jury's comprehension as a matter of common knowledge. See Watts v. St. Edward Mercy Med. Ctr., 74 Ark. App. 406, 49 S.W.3d 149 (2001). A jury cannot be expected to know, without resort to speculation and conjecture, what chance ofsurvival a premature baby in this situation would have had to begin with, what chance she lost due to Phillips's conduct, and whether that chance was worthy of recompense. The absence of helpful expert testimony is especially glaring in a case such as this one where it is not known what caused the baby's death.

Secondly, appellant's expert was unable to establish, beyond speculation and conjecture, that Phillips's alleged negligence was the proximate cause of the baby's reduced chance of survival. By his own testimony, Dr. Gootnick could not say that the situation would have been different had Phillips arrived at the hospital twenty-five minutes earlier, could not say that Nubain had harmed the baby, nor that the outcome would have been different had Phillips performed a C-section at 10:30 a.m. rather than allowing the baby to be delivered naturally thirty minutes later. Thus, he could not connect Phillips's alleged breaches to the baby's reduced chance of survival, and a jury could not have found, absent speculation and conjecture, that Phillips proximately caused any reduced chance of survival. Therefore, a directed verdict was proper. See generally Dodson v. Charter Behavioral Health Syst., Inc., 335 Ark. 96, 983 S.W.2d 98 (1998).

For the reasons stated, we affirm the trial court's decision.

Affirmed.

Bird and Neal, JJ., agree.

1 The other twin, Mallory, was born at 11:11a.m., weighing three pounds, six ounces. She survived, after being hospitalized for thirty days.

2 Appellant also sued Sparks Regional Medical Center, Dr. Feezell, and Holt-Krock Clinic in its own right. Her case against those defendants was dismissed by directed verdict, and that dismissal is not challenged on appeal.