CASH v. LIM11/6/1995
92); Harvison
v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Oglesby v. Baptist Medical System, 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995); see also Forrest City Machine Works v. Mosbacher, 312 Ark. 578, 583, 851 S.W.2d 443, 446 (1993); Birchfield v. Nationwide Insur., 317 Ark. 38, 875 S.W.2d 502 (1994); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994).
Accordingly, it is the moving party who has the burden of presenting evidence to sustain a summary judgment, and all proof submitted must be viewed in the light most favorable to the opposing party. It is further well-settled that once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995); Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994); Bartlett v. Argonaut Ins. Co., 258 Ark. 221, 523 S.W.2d 385 (1975).
The matter of proximate causation is ordinarily one for the jury to resolve. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Stacks v. Arkansas Power & Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). Hence, we turn to the proof submitted by Dr. Lim and his clinic to determine whether a genuine issue of material fact surrounding causation remains. Four pages from the deposition of Dr. Hagans were attached in support of the motion. Those pages read in part:
DEFENSE COUNSEL: Doctor, do I take it from the note of April the 5th, 1993, that you do not intend to testify regarding the standard of care for a radiologist practicing
that specialty in Pine Bluff, Arkansas, or a similar locality in 1991 or 1992? Is that correct?
DR. HAGANS: I think that would be correct, since I'm not a radiologist.
DEFENSE COUNSEL: Sure. I understand. Now, this lady is your patient?
DR. HAGANS: Uh-huh.
DEFENSE COUNSEL: To a reasonable degree of medical certainty or probability, do I understand that while you feel the films may have been misread, you can't and will not state that it made any difference in the ultimate outcome? Is that correct?
DR. HAGANS: That is correct, because I don't think anyone can say that.
DEFENSE COUNSEL: I agree with you. And when I say the ultimate outcome, I'm talking about the entire course of events.
DR. HAGANS: Yes.
DEFENSE COUNSEL: Do you have any problem with that?
DR. HAGANS: No. I think it should be stated, as I told the patient, which is how all this may have occurred, is that, of course, it's best, if ever a patient has cancer, to remove that cancer as soon as you possibly can.
DEFENSE COUNSEL: Sure.
DR. HAGANS: In this particular case, she had something on her pictures that I think was there, you know, in days past, a year before we removed it. In retrospect, it's very easy to say that was cancer, you know, and as I told her initially, when I first showed
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