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Young v. Gastro-Intestinal Center3/24/2005
provided that, in a medical malpractice case involving matters outside common knowledge, the standard of care required under a particular set of facts is to be established with the help of expert testimony. Yet, under the majority's analysis, this court takes it upon itself to determine that, under the facts of this case, the Gastro-Intestinal Center and Nurse Brown did not breach the standard of care required by the statute when they sedated Mr. Young without confirming that he had a driver or when they allowed him to leave and drive away in an impaired condition. Thus, the majority's decision prematurely cuts off a decision that the legislature has expressly given to the jury.
I am particularly concerned about the majority's holding that, as a matter of law, an outpatient medical care provider's pre-sedation duty extends no further than to warn. At that point, the patient is not yet impaired, but the provider knows that, if sedated, the patient will almost certainly leave the premises in an impaired condition. Admittedly, the confirmation of the presence of a responsible adult driver represents some burden to the medical care provider. To meet that burden may be reasonable under the circumstances. That is one of the questions the General Assembly has given to the jury.
The question of a post-sedation duty presents other issues. In this case, Mr. Young was able to articulate his desire to leave by himself. He left the Gastro-Intestinal Center on his own two feet and drove away. Should the result be the same if a sedated patient literally staggers out of an outpatient clinic, falls down the stairs and severely injures himself? What if the impaired person drives away and, within a few miles, runs off the road and kills a third party? These are cases that, under the majority's decision today, won't survive summary judgment. The jury won't get the chance to decide whether, under the General Assembly's guidelines, the defendant met the requisite standard of care.
In any event, as the moving party, appellees were required to show what the requisite standard of care was under the surrounding circumstances and show that they conformed to that standard. Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995) (citing Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986)). Until that is done, the burden of supplying acceptable proof does not shift to the nonmoving party. Here, appellees failed to offer evidence as to the standard of care under Ark. Code Ann. ยง 16-114-206. Therefore, appellant was not required to present evidence of the requisite standard of care in order to avoid summary judgment.
Because I believe the trial court erred in granting summary judgment and this case should be reversed and remanded for trial, I respectfully dissent.
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