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Mitchell v. Lincoln12/7/2005
pplemental affidavit of Dr. Singer in which he asserted familiarity with the standard of care in Arkansas, from the record; appellant does not argue that the trial court erred when it struck this supplemental affidavit from the record. Because Dr. Singer's original affidavit did not offer any proof as to the applicable standard of care, the appellant failed to meed her burden of proof according to Ark. Code Ann. § 16-114-206(a)(1). See Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991) (granting summary judgment when the plaintiff presented no expert proof to establish the standard of care of a violation of the standard of care).
In addition, the trial court granted summary judgment alternatively based upon the appellant's failure to establish the required element of proximate causation. Proximate cause is defined, for negligence purposes, as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury , and without which the result would not have occurred. Kilgore, supra. In other words, Ark. Code Ann. § 16-114-206(a) (1987) implements the traditional tort standard of requiring proof that "but for" the tortfeasor's negligence, the plaintiff's injury or death would not have occurred. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999).
Here, appellee's expert, Dr. Markland, stated that Dr. Lincoln's treatment did not cause or contribute to Mr. Mitchell's death and that his underlying condition, the leukemia, was the cause of his death. Dr. Singer, appellant's expert, stated that Dr. Lincoln's action was only "a significant contributing factor" to the ultimate demise of the decedent. This infers that another condition actually caused his death. Thus, even if Dr. Singer's original affidavit was sufficient to set forth the proper standard of care, it did not establish that, but for any violation of the standard of care on the part of Dr. Lincoln, the decedent would have survived, and such survival surely cannot be inferred from Dr. Singer's affidavit. While the affidavit may have sufficed in a medical malpractice case to establish that some kind of medical injury to the deceased occurred, Dr. Singer's affidavit does not establish proximate causation for his death.
I would affirm.
Crabtree, J., joins.
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