Howard v. St. Edward Mercy Med. Ctr

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

EDNA LOU HOWARD, as

Administratrix of the Estate of NORMAN L. HOWARD, Deceased

APPELLANT

V.

ST. EDWARD MERCY MEDICAL

CENTER, and DR. BRUCE CRABTREE, Jointly and Severally

APPELLEES

CA 01-798

FEBRUARY 20, 2002

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT, FT. SMITH DISTRICT, [NO.
CIV98-931]

HONORABLE JOE MICHAEL

FITZHUGH, CIRCUIT JUDGE

AFFIRMED

This is a medical malpractice case. Appellant
Edna Lou Howard, administratrix of the estate of her deceased husband Norman
Howard, appeals from a directed verdict entered on behalf of appellee St. Edward
Mercy Medical Center and a jury verdict entered on behalf of appellee Dr. Bruce
Crabtree. Mr. Howard died on the morning of January 22, 1997, allegedly the
result of an acute illness brought on by undiagnosed diabetes, and Mrs. Howard
filed suit against the hospital and the emergency room physician who participated
in Mr. Howard’s care. In her appeal, Mrs. Howard alleges that (1) the trial
court erred in entering a directed verdict for the hospital at the close of
the presentation of all of the evidence based upon a finding that the hospital
was not liable for the actions of Dr. Crabtree, and (2) the jury’s verdict for
Dr. Crabtree is not supported by substantial evidence. We disagree and affirm.

The standards of review on these two issues
are distinctly different, and we set them forth prior to addressing the merits
of appellant’s arguments. As to the hospital, the trial court granted a directed
verdict at the close of the evidence. "In reviewing an order granting a
motion for directed verdict, this court views the evidence in the light most
favorable to the party against whom the verdict was directed …. [and if] any
substantial evidence exists that tends to establish an issue in favor of that
party, it is error for the trial court to grant the motion for directed verdict."
Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 297, 948 S.W.2d 388,
394 (1997) (citations omitted).

As to Dr. Crabtree, the case was submitted to
the jury for resolution. On appeal challenging a jury verdict, the query is
whether the jury verdict is supported by substantial evidence. Substantial evidence
is defined as "evidence of sufficient force and character to compel a conclusion
one way or the other with reasonable certainty; it must force the mind to pass
beyond suspicion or conjecture." Hall v. Grimmett, 318 Ark. 309,
805 S.W.2d 297 (1994). In examining whether substantial evidence exists, all
evidence must be examined in the light most favorable to the party on whose
behalf the judgment was entered and must be given its highest probative value,
taking into account all reasonable inferences deducible from it. Id.
It is not the appellate court’s province to try issues of fact; the appellate
court simply reviews the record for substantial evidence to support the jury’s
verdict. E.g., City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d
481 (2000); Missouri Pac. Transp. Co. v. Jones, 197 Ark. 79, 122 S.W.2d
613 (1938) (holding that on questions of fact, the finding of the jury is conclusive).
The weight and value of witness testimony is a matter within theexclusive province
of the jury; the jury is free to believe or disbelieve the testimony of any
witness. Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Foote, 341 Ark.
105, 14 S.W.3d 512 (2000). With these standards of review in mind, we examine
the evidence presented to the Sebastian County Circuit Court. Mr. Howard was
a fifty-two-year-old man and a resident of Fort Smith, Arkansas. Not feeling
well, Mr. Howard arrived at the emergency room of St. Edward Mercy Medical Center
in Fort Smith on the afternoon of January 21, 1997, at approximately 4:00 p.m.
He was accompanied by his eldest daughter Angela, who had driven him to the
hospital. A triage nurse took his vital signs at that time and filled in a medical
chart, which included a pulse or heart rate of 139. His primary complaints to
the nurse were sore throat, fever, and blurred vision.

He was seen by a doctor at approximately 4:20
p.m. Dr. Crabtree, a board-certified emergency-medicine physician who has practiced
since 1991, came into the examination room to see Mr. Howard. Mr. Howard primarily
complained to Dr. Crabtree of difficulty swallowing and a burning sensation
in his chest. It was explained that the previous day, Mr. Howard had presented
to the V. A. Hospital in Fayetteville and was to report for studies to address
these problems, but he preferred to have those tests run in Fort Smith, which
was more convenient. Dr. Crabtree testified that he listened to Mr. Howard’s
chest and that he was not tachycardic at the time of his examination, in spite
of the fact that his heart rate was noted to be elevated to 139 at the time
he was triaged by the emergency room nurse. Though this particular examination
by stethoscope was not recorded in the medical chart, Mr. Howard’s daughter
testified that she thought that the doctor did complete such anexamination in
her presence. Dr. Crabtree testified that he also examined Mr. Howard’s mucous
membranes in his throat and mouth, noting in the medical chart that they were
pink and moist, which would indicate reasonable hydration. Dr. Crabtree denied
that anyone told him of Mr. Howard experiencing frequent urination or excessive
thirst; the triage nurse stated that if that complaint were made to her, she
would have recorded it in the medical chart. This was a critical piece of information
that would have changed the manner of treatment, according to Dr. Crabtree.
In contrast, the eldest daughter testified that she had expressed to the doctor
that her father had been frequently urinating. The daughter also testified that
she had to answer the doctor’s questions after the examination began because
her father was too weak and sick to answer. After concluding his examination,
Dr. Crabtree contacted Dr. Van Asche, a gastroenterologist, and an endoscopy
was scheduled for the following morning to examine further Mr. Howard’s gastric
complaints.

Mr. Howard was discharged from the emergency
room at 4:54 p.m. and, due to his instability, he was taken by wheelchair to
his car. The nurse assisting the family expressed concern to Dr. Crabtree about
Mr. Howard’s difficulty ambulating and how this was complicated by his size,
but he was discharged as planned. Mr. Howard was driven home to convalesce.

Mrs. Howard reported that after getting home,
her husband rested on the couch, but he frequently had to go to the bathroom.
As the evening progressed, Mrs. Howard stated that her husband became much more
ill. She brought take-out food home for dinner, but Mr. Howard could not eat
because his throat was too sore. She thought that he had been drinkinga lot
of fluid, but presumed it was to soothe his throat. By 9:00 p.m., Mr. Howard
was confused and disoriented and was still urinating frequently, on one occasion
urinating on the floor. His confusion was marked by Mr. Howard mistaking his
wife for a nurse. As the evening wore on, Mrs. Howard became frightened by her
husband’s condition, so she called her eldest daughter, asking that her
son-in-law come over to assist in getting Mr. Howard back to the hospital
emergency room, and they arrived there at 11:30 p.m. Mr. Howard was partially
conscious at that time, and he was somewhat combative. The emergency room nurse
recorded the family’s report of his vomiting for one week, blurred vision, weakness
and excessive sleeping. Examination revealed that Mr. Howard was drowsy, confused,
and apparently dehydrated, as evidenced by very dry mucous membranes. A laboratory
test was ordered, which revealed that Mr. Howard had a very elevated blood sugar
of 1,504 milligrams per deciliter (roughly twelve times the norm). Mr. Howard
was admitted directly to the intensive care unit. Intravenous fluid and insulin
were administered, however, Mr. Howard’s condition continued to deteriorate.
Though additional tests revealed that during the night his blood sugar levels
began to decline, his condition worsened in that his body temperature elevated
to 108 degrees, and by 8:15 a.m., he had slipped into a coma. Just after 9:00
a.m., Mr. Howard suffered respiratory and cardiac arrest, and efforts to resuscitate
him ensued. Mr. Howard was pronounced dead at 9:35 a.m., January 22, 1997.

Dr. Crabtree learned later of Mr. Howard’s return
to the emergency room and his death. Dr. Crabtree’s care was isolated to his
first presentation to the emergency room; hedid not participate in Mr. Howard’s
care upon his return to the hospital or at any time thereafter.

An autopsy was conducted on Mr. Howard’s body,
and the immediate cause of death was listed as "diabetes mellitus with
acute diagnosis of none [sic] treatment of hyperosmolar coma." In short,
Mr. Howard’s blood was thick due to dehydration and caused his coma and death.
Other underlying conditions were sickle cell trait, bone marrow hypercellularity,
a thyroid condition, and chronic gastritis with bacteria associated with ulcers.

At trial, Mrs. Howard presented the testimony
of an emergency-room physician who was board certified in family practice, Dr.
O’Mara, who testified that Dr. Crabtree breached the standard of care,
which resulted in her husband’s death. Dr. O’Mara, while not faulting the
referral to a gastroenterologist as a reasonable treatment of the later confirmed
chronic gastritis, considered Dr. Crabtree’s treatment to fall below the standard
of care in that Dr. Crabtree did not follow up on Mr. Howard’s elevated
heart rate. Dr. O’Mara believed that the elevated heart rate was indirectly
related to his diabetes because his dehydration required his heart to work harder
to maintain cardiac output. Had Dr. Crabtree followed up, the diabetes
would have been discovered, treatment for Mr. Howard’s diabetes could have
been implemented sooner, and it would have been more probable than not that
Mr. Howard would have survived the diabetic crisis. Dr. O’Mara did state
on cross-examination, however, that Mr. Howard was perhaps "survivable"
within a few hours of going into arrest on the morning of January 22.

The defense attacked Dr. O’Mara’s opinion on
cross-examination. Dr. O’Mara was of the opinion that Mr. Howard had to have
been dehydrated upon initial presentation at the emergency room, but the medical
records noted that the patient’s mucous membranes were pink and moist, directly
contradicting that opinion. And, it was emphasized by defense counsel that Dr.
O’Mara thought that Mr. Howard could possibly still survive just a few hours
prior to "coding," and this would contradict Dr. O’Mara’s earlier
opinion that Dr. Crabtree effectively took away his last chance at survival.

The defense presented its own expert testimony
through Dr. Leibovich, a board-certified emergency-medicine physician and a
professor of same at the University of Arkansas for Medical Sciences. Dr. Leibovich
testified that Dr. Crabtree met the standard of care for emergency-room physicians
in Fort Smith, Arkansas, in his care of Mr. Howard. Dr. Leibovich opined
that it is not unusual for a patient presenting to the emergency room to have
an elevated heart rate that subsequently returns to a normal rate. Moreover,
Dr. Leibovich opined that the referral for an endoscopy the next day was
an appropriate response to Mr. Howard’s chief complaints. Dr. Leibovich did
not find it problematic that even though Dr. Crabtree stated that he listened
to Mr. Howard’s chest, that fact did not get recorded in the medical chart.
Dr. Leibovich stated, though, that had Dr. Crabtree not determined a benign
cause for the initial elevated heart rate, then it undoubtedly would have been
a violation of the standard of care. Plaintiff’s counsel attacked Dr. Leibovich’s
testimony as speculative because Dr. Leibovich was presuming that Dr. Crabtree
was truthful when he said that he listened to Mr. Howard’s chest, when the record
did not soindicate, and he apparently did not accept the daughter’s testimony
that she told the doctor about her father’s frequent urination.

The defense also presented the testimony of
Dr. Fonseca, a professor of medicine and endocrinology at Tulane University
and the Tullis Tulane Chair in Diabetes. Dr. Fonseca testified that the most
classic symptoms of diabetes are excessive thirst and frequent urination. This
is typical because the body is attempting to excrete the excess sugar from the
blood, and thus the body is releasing urine and seeking additional fluid to
make up for the body’s loss. Dr. Fonseca stated that according to the medical
records, these classic symptoms were not present upon presentation to Dr. Crabtree,
and nothing in the medical records would have alerted Dr. Crabtree to suspect
this in diagnosing Mr. Howard’s condition. Dr. Fonseca also stated that
an elevated pulse rate is not necessarily a symptom of diabetes, and there was
no way, without laboratory tests, to know what Mr. Howard’s blood sugar was
before 5:00 p.m. on January 21. Dr. Fonseca, therefore, stated that Dr. Crabtree
treated Mr. Howard appropriately and that even if Mr. Howard had been admitted
after seeing Dr. Crabtree, it would not have had any impact on the outcome.
Dr. Fonseca stated that the treatment rendered to Mr. Howard when he returned
to the emergency room and then was admitted was appropriate treatment for diabetes
and that his blood sugar was decreasing prior to his death. Dr. Fonseca opined
that the elevated temperature was not related to his diabetes. Plaintiff’s counsel
attacked this opinion as calling for possibilities and not medical certainties
regarding whether Dr. Crabtree’s care fell below the standard of care and whether
that failure was the proximate cause of his death.

As to the relationship between the hospital
and Dr. Crabtree, a substantial amount of evidence was presented that Dr. Crabtree
was an independent contractor who was provided to the hospital by Emergency
Medicine Associates, PLLC. For income tax purposes, Dr. Crabtree was not
provided any benefits nor paid wages by the hospital. He was not covered under
the hospital’s workers’ compensation insurance nor was he provided health
insurance. Dr. Crabtree elaborated on this issue by testifying that the
hospital did not have any control over how many hours any particular physician
in the corporation worked or how he treated any patient in the emergency room.
And, Dr. Crabtree stated that he brought his own personal instruments to use,
such as a stethoscope, reflex hammer, and the like, that were carried in his
lab coat. The documentation between the PLLC and the hospital explicitly stated
that the hospital agreed not to exercise control over a physician’s duties in
the hospital. Dr. Crabtree stated that the hospital did not in fact exert any
influence over his treatment of patients. Appellant argued that even if Dr.
Crabtree was not an employee, he was an agent for the hospital and that it was
responsible for his acts. Appellant pointed to the fact that Dr. Crabtree
worked only at this hospital, and the hospital provided all the equipment, forms,
and billing.

At the conclusion of the presentation of the
evidence, both defendants moved for a directed verdict. The trial court granted
the directed verdict as to the hospital, disagreeing with appellant that there
was any dispute about the control or right to control the actions of the doctor
by the hospital. Consequently, appellant failed in her attempt to establish
respondeat superior liability on the hospital for the conduct of Dr. Crabtree.
The trial courtdenied the motion as to Dr. Crabtree, permitting the jury
to find whether Dr. Crabtree violated the standard of care and, if so,
whether that violation was the proximate cause of Mr. Howard’s death. The
jury rendered a ten-to-two verdict in favor of Dr. Crabtree. After the judgment
was filed of record, appellant timely filed a notice of appeal to our court.

We must first make clear that we are not deciding
whether the case should have gone to the jury because that issue was not preserved
for review in accordance with the Arkansas Rules of Civil Procedure. As has
long been a rule in Arkansas, a party in a jury trial seeking to challenge the
sufficiency of the evidence must move for a directed verdict at the appropriate
times in order to preserve the issue for appeal. See Ark. R. Civ. P.
50. Nor may a party move for a judgment notwithstanding the verdict absent appropriate
motions for directed verdict; a motion for judgment notwithstanding the verdict
is technically only a renewal of the motion for a directed verdict made at the
close of the evidence. Wheeler Motor Co., Inc. v. Roth, 315 Ark. 318,
867 S.W.2d 446 (1993); see also Majewski v. Cantrell, 293 Ark. 360, 737
S.W.2d 649 (1987); Benton v. Barnett, 53 Ark. App. 146, 920 S.W.2d 30
(1996). In the present appeal, appellant, as plaintiff, did not move for a directed
verdict; only the defendants did so. Our discussion in Benton v. Barnett,
supra, is instructive:

Appellant, however, failed to challenge the
sufficiency of the evidence by motion for a directed verdict, as is required
under Rule 50(e) of the Rules of Civil Procedure. Instead, he raised the issue
by motion for a new trial under Rule 59. Although Rule 59 specifically states
that a motion for a new trial may be granted where the verdict is clearly
contrary to the preponderance of the evidence, Hall v. Grimmett, 318
Ark. 309, 885 S.W.2d 297 (1994), such a motion, however, does not test the
sufficiency of the evidence to go to the jury. Id. See also Yeager
v. Roberts, 288 Ark. 156, 702S.W.2d 793 (1986). A party must test the
sufficiency of the evidence by motions for directed verdict and judgment notwithstanding
the verdict, not by a motion for a new trial. Majewski v. Cantrell,
293 Ark. 360, 737 S.W.2d 649 (1987). Therefore, appellant’s challenge to the
sufficiency of the evidence must fail. We recognize that this distinction
is a fine one indeed, but it is one that has been fashioned by the supreme
court.

Id. at 148-49.

Appellant did not move for a new trial pursuant
to Ark. R. Civ. P. 59 either, but she asserts that she was not required to do
so. We agree with her to the extent that Rule 59 provides in subsection (f)
that a party is not required to move for new trial to preserve for appeal an
error that could be the basis for granting a new trial and that one of the grounds
in Rule 59 is that the verdict or decision is clearly contrary to the preponderance
of the evidence or is contrary to the law, Ark. R. Civ. P. 59(a)(6). This is
what appellant urges on appeal, that the jury verdict for Dr. Crabtree is clearly
against the preponderance of the evidence and that she was not required to move
for a new trial on this basis to the trial court in order to have the issue
addressed herein. We disagree.

Our rules do not provide for plain error; any
error argued on appeal must have first been directed to the trial court’s attention
in some appropriate manner, so that the trial court would have had an opportunity
to address it. See Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996).
We adhere to the well-settled rule that issues not raised in the trial court
will not be considered for the first time on appeal. See id; see also
Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993). Subsection (f) of Rule
59 means that if a party has already properly preserved her allegation
of error concerning any of the grounds listed in Rule 59(a), then theparty is
not required to move for a new trial in order to argue those grounds on appeal.
See Stacks v. Jones, supra. Absent any apprisal to the trial court of
this argument prior to appeal, we are prevented from addressing this issue for
the first time on appeal.

Nevertheless, had we been able to reach the
merits of appellant’s argument, we would have affirmed. There were competing
expert opinions as to whether Dr. Crabtree violated the standard of care,
and if he did, whether that negligence was the proximate cause of Mr. Howard’s
death. Because we defer to the jury as to findings of fact, and because there
was substantial evidence to support its findings, we would affirm. See Bullington
v. Palangio, 345 Ark. 320, 45 S.W.3d 834 (2001). Indeed, it is a massive
task for a party bearing the burden of proof of negligence and proximate cause
to set aside a jury verdict rendered on behalf of a defending party. See
Morton v. American Medical Int’l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985).1
Appellant’s argument that Dr. Leibovich’s opinion was speculation is of no moment,
as the defense was not required to bring any proof at all; it was appellant’s
burden to prove negligence and causation and the jury’s province to weigh thatproof.
The jury’s verdict is supported by substantial evidence, even more so because
there was defense expert testimony in direct contradiction to the plaintiff’s
upon which the jury was entitled to rely.

The resolution of the appeal as to Dr. Crabtree
would have then mooted the appeal as concerns the hospital, inasmuch as the
hospital’s liability was dependent upon Dr. Crabtree’s liability.

We affirm.

Pittman and Neal, JJ., agree.

1 The supreme court
quoted the following language from United States Fire Ins. Co. v. Milner
Hotels, 253 F.2d 542 (8th Cir.1958), with approval in the Morton
opinion:

"Thus, no matter how strong the evidence
of a party, who has the burden of establishing negligence and proximate cause
as facts, may comparatively seem to be, he is not entitled to have those facts
declared to have reality as a matter of law, unless there is utterly no rational
basis in the situation, testimonially, circumstantially, or inferentially, for
a jury to believe otherwise." The supreme court concluded that the common
law rule would then mean that a defendant is entitled to have the jury pass
upon the credibility of the plaintiff’s evidence even if he offered no evidence
himself.