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Miller v. Leou3/1/2000
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
This is a medical malpractice case. On February 11, 1998, Vera Miller filed a medical malpractice action against Dr. Frank Leou. On March 18, 1999, a jury returned a verdict for Dr. Leou. Appellant subsequently filed a timely motion for a new trial pursuant to Ark. R. Civ. P. 59 (a) (6), alleging that the verdict was against the preponderance of the evidence. The trial court denied the motion, and appellant appealed the denial to this court. In her appeal to this court, appellant contends that the trial court erred in refusing to order a new trial because the jury's verdict was not supported by substantial evidence. We find no error and affirm.
The test on appeal from the denial of a motion for a new trial is whether the verdict is supported by substantial evidence. Gilbert v. Shine, 314 Ark. 486, 863 S.W.2d 314 (1993). In examining whether substantial evidence exists, all evidence must be examined in the light most favorable to the party on whose behalf the judgment was entered and given its highest probative value, taking into consideration all reasonable inferences deducible therefrom. Esry v. Cordin, 328 Ark. 153, 942 S.W.2d 846 (1997). The weight and value of the testimony is a matter within the exclusive province of the jury. Id.
Arkansas Code Annotated section 16-114-206 (a) (1987) sets forth the plaintiff's burden of proof in a medical malpractice action:
In an 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 the same type of practice or specialty in the locality in which he practices or in a similar locality; that the medical care provider failed to act in accordance with that standard, and that as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
On February 13, 1996, Dr. Leou performed a total abdominal hysterectomy and a salpingo oopherectomy on appellant. She was discharged from the hospital on February 17, 1996, and subsequently readmitted on February 22, 1996, for abdominal pain. Appellant underwent an intravenous pyleogram, which revealed a blockage to her right ureter. A nephrosophy tube was inserted to assist in draining her bladder and to promote healing of the ureter. She underwent subsequent surgical procedures to correct her condition. Appellant remained off work for six months and incurred medical expenses in excess of $40,000.
Appellant's argument portion of her brief focuses on the standard of care that she contends was breached by Dr. Leou. According to appellant's argument, there is a recognized standard that a physician should not sew, cut or clamp unless he can identify the structure. She points out Dr. Leou's testimony that he palpated her ureter, but did not actually visualize it before performing surgery. Appellant relies on the testimony of her expert witness, Dr. Bruce Halbridge, an obstetrician and gynecologist, who opined that Dr. Leou's actions in performing appellant's surgery were below the standard of care for physicians in Little Rock, Arkansas. He testified that he believed that Dr. Leou sutured appellant's ureter and caused her injury .
Appellee presented the expert testimony of Dr. David Barclay, who is an obstetrician-gynecologist with a subspecialty in oncology. Dr. Barclay testified that he had reviewed the medical records, office records, and hospital records and that he believed to a reasonable degree of medical certainty that Dr. Leou did meet the standard of care applicable for performing a hy
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