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CASH v. LIM11/6/1995
The appellants, Jane A. Cash and Hugh Cash, appeal from a summary judgment in favor of appellees Dr. Rodolfo Espaldon Lim and Pine Bluff Radiologists, Ltd. They contend that a genuine issue of material fact concerning causation in their medical malpractice claim remains to be resolved and that, accordingly, summary judgment was not appropriate under Ark. R. Civ. P. 56(c). We agree, and we reverse the summary judgment and remand the matter for trial.
On April 8, 1993, the Cashes filed a medical malpractice complaint against Dr. Lim and his radiology clinic, Pine Bluff Radiologists, Ltd., and others. The primary allegation was that Dr. Lim misread Jane Cash's April 16, 1991 mammogram and failed to diagnose a malignant tumor in her right breast, which resulted in a radical modified mastectomy of her right breast a year later. In 1992, Dr. Ronald Pritchard, another radiologist with Pine Bluff Radiologists, Ltd., read the film and noticed a suspicious density in Jane Cash's right breast. He recommended that an excision be done. Dr. Hagans, a breast surgeon in Little Rock, did the excision, and the biopsy subsequently revealed a cancerous condition. On April 29, 1992, Dr. Hagans performed the partial radical mastectomy on Cash.
After the complaint was filed, discovery ensued with the appellees taking the deposition of Dr. Hagans and the appellants taking the depositions of Dr. Lim and Dr. Aubrey Joseph, still
another physician with Pine Bluff Radiologists, Ltd. Dr. Lim and his radiology clinic then moved for summary judgment. They asserted that they were entitled to summary judgment as a matter of law and that the Cashes had the burden of proving medical malpractice and causation under Ark. Code Ann. § 16-114-206 (1987). They attached as exhibits to their motion four pages from Dr. Hagans's deposition, X-Ray Requests and Reports for Jane Cash for the years 1989 through 1992, and a discharge summary from Baptist Medical Center in Little Rock dated May 1, 1992. The Cashes responded that factual issues remained to be resolved and that § 16-114-206 of the Medical Malpractice Act was unconstitutional. The Cashes attached to their response the complete depositions of Drs. Lim, Joseph, and Hagans. They subsequently filed an affidavit by Jane Cash regarding the stress, anxiety, and financial harm occasioned by Dr. Lim's misdiagnosis.
On November 15, 1994, the circuit court issued a letter opinion and found: (1) that neither Dr. Hagans nor anyone else could state to a reasonable degree of medical certainty that the conduct of Dr. Lim or his clinic made a difference in the outcome of Jane Cash's condition; (2) that the Cashes have failed to demonstrate remaining justiciable issues relating to causation; and (3) causation is an element that the Cashes must prove. On December 7, 1994, the court granted summary judgment to Dr. Lim and his clinic.
Turning to the issue on appeal, this court has often summarized its standards for summary judgment review:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). 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. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (19
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