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CASH v. LIM11/6/1995
her the films that told me that we needed to go biopsy this, and her question to me was, what do my pictures look like last year, and I showed the pictures to her on the view box, and it's very easy — you have these pictures here and you look at them — that this density was there, very easily seen the year
before. And this is something that she and her husband could see very easily. And I told them that you can't say that it was cancer at that point until you did a biopsy. So when we did a biopsy, then, yes, in retrospect, it was cancer.
So there had been a year there where the tumor may have been removed sooner. Would it have made a difference? Unknown, because she had such a good prognosis and has such a good prognosis at this time, that it's unknown if that year made a difference in her. But then the standard still remains that you should take something out as soon as you can.
DEFENSE COUNSEL: I understand that. But to a reasonable degree of medical certainty or probability, you can't state as we sit here today, even with the clarity of the retrospectroscope, that had the cancer been removed in 1991, that anything would be different?
DR. HAGANS: Absolutely.
DEFENSE COUNSEL: Okay. What is her prognosis, in your opinion, Doctor?
DR. HAGANS: It's a little difficult to say because of the fact that she quit chemotherapy
DEFENSE COUNSEL: Yes, sir.
DR. HAGANS: You know, if we had continued the chemotherapy as planned, her prognosis would have been well over 85 percent, 90 percent, that she would not have any trouble in the future. Now, with the chemotherapy not being completed, we don't have any real statistics to tell us, of course, you know, how much difference that's going to make. But that, of course, makes me very concerned that she didn't complete the therapy.
The full depositions of Drs. Lim, Joseph, and Hagans attached to the Cashes' response and Jane Cash's affidavit shed no additional light on the issue of causation.
The nub of this matter is whether the statements made by Dr. Hagans in his deposition establish sufficient proof of a lack
of causation so as to require the Cashes to respond with countervailing proof. The salient points of Dr. Hagans's deposition are these:
Dr. Hagans believed that the 1991 film had been misread.
He would not testify about the standard of care for radiology in Pine Bluff because he was not a radiologist.
He did not believe anyone could state with a reasonable degree of medical certainty that the misreading of the film made any difference in the ultimate outcome.
The standard is that it is best to remove a tumor as soon as you can.
It was "unknown" whether removing the tumor sooner would have made any difference and he would not state that it would have.
We have held in the past that when the proof supporting a motion for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof with proof. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986); Collyard v. American Home Assur. Co., 271 Ark. 228, 607 S.W.2d 666 (1980). In Wolner, the plaintiff was in the hospital for prostatic surgery, and following surgery, he rose from a chair, fell, and broke his arm. He sued the hospital and his urologist, and the circuit court granted summary judgment in favor of both. We reversed with respect to the urologist and stated that it was the responsibility of the urologist, as the moving party, to prove the requisite standard of care and that he had conformed to that standard of care before the opposing party was required to
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