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Young v. Gastro-Intestinal Center3/24/2005
. See, e.g., Eady v. Lansford, 351 Ark. 249, 92 S.W.3d 57 (2002) (holding that where appellant failed to meet proof with proof in the form of expert testimony to demonstrate that appellee-doctor violated appropriate standard of care, trial court did not err in granting appellee-doctor's summary-judgment motion); Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991) (holding that where appellant failed to present either expert or lay testimony as to the appropriate standard of care to be used, appellant failed to present any evidence indicating the existence of an issue of fact; thus, summary judgment was proper); Courteau v. Dodd, 299 Ark. 380, 773 S.W.2d 436 (1989) (holding that affidavit of respiratory therapist, which offered nothing to sustain the Courteaus' burden of proof of the standard of care under § 16-114- 206(a)(1), was insufficient to establish radiologist's malpractice). See also Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002) (holding that where patient's expert witness did not testify to what degree of skill and learning ordinarily possessed by doctors in good standing in Little Rock or similar locales was, patient failed to establish applicable standard of care, thereby warranting directed verdict in favor of appellant doctor).
A review of our case law reveals that in the past, we have conflated the term "duty of care" with the General Assembly's "standard of care" set out in § 16-114-206(a). This is further evidenced by our model jury instruction for medical-malpractice cases, AMI Civ. 1501 (2005), which speaks in terms of "Duty," but instructs on standard of care:
AMI 1501 DUTY OF PHYSICIAN, SURGEON, DENTIST OR OTHER MEDICAL CARE PROVIDER
In (diagnosing the condition of) (treating) (operating upon) (obtaining the informed consent of) a patient, a (physician) (surgeon) (dentist) (medical care provider) must possess and apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his/her profession in good standing, engaged in the same (type of service) (specialty) in the locality in which he/she practices, or in a similar locality. A failure to meet this standard is negligence.
[In determining the degree of skill and learning the law required of _______ (and) (in deciding whether _______ used the degree of skill and learning the law required of him/her), you may consider only the evidence presented by the (physicians) (and) (surgeons) (dentists) (medical care providers) called as expert witnesses (and) (evidence of professional standards presented in the trial). In considering the evidence on any other issue in this case, you are not required to set aside your common knowledge, but you have a right to consider all the evidence in light of your own observations and experiences in the affairs of life.]
AMI Civ. 1501 (2005).
Nevertheless, as the majority opinion makes clear, the standard of care under the statute was not argued by either party. Rather, the issue debated was whether a duty on the part of The Gastro-Intestinal Center to control the patient was breached. We hold in the majority opinion that there is no such duty. I agree with that. But, in addition, I am swayed by the fact that the plaintiff in this case failed to present expert testimony regarding the standard of care employed for the same specialty in the same locality or in one that is similar. This lapse by the plaintiff is an alternative reason to affirm the summary judgment.
Annabelle Clinton Imber, Justice, dissenting. Negligence law is based on the premise that we generally owe others a duty to exercise reasonable care as we go about our daily lives. In order to establish a useable
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