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Isham v. Booneville Community Hospital

United States District Court, W.D. Arkansas, Fort Smith Division

June 30, 2015

KELLY ISHAM, Plaintiff,


P.K. HOLMES, III, District Judge.

Before the Court are Defendant Sahibzada Azizuddin Ahmed's motion for summary judgment and supplement thereto (Doc. 103, 167), Defendant Booneville Community Hospital's ("BCH") motion for summary judgment (Doc. 129), Ahmed's motion to bifurcate proceedings on punitive damages (Doc. 168), Plaintiff Kelly Isham's responses (Docs. 124, 147), the defendants' respective replies (Docs. 143 and 154), and the parties' supporting documents.[1] The Court will address each motion in turn.[2]

I. Background

Isham was diagnosed at the age of fifteen with Ewing Sarcoma, a rare form of cancer that affected her jaw at the right mandible. Over the following years, Isham received treatment in the form of, inter alia, chemotherapy, reconstructive surgeries, and titanium implants. Isham eventually began working as a surgical scrub technician in an operating room at BCH. Isham's supervisor was separate defendant Jones.

Throughout Isham's employment, she became close friends with Jones. In September 2009, Isham and Jones were engaged in conversation when Isham complained of symptoms she was experiencing, including chronic headaches, swelling on the right side of her face, pain in her right jaw, and a clicking noise coming from her right temporomandibular joint. Jones expressed her belief that Isham was suffering from an oral infection and abscess, and that she would call in a prescription for Isham for Clindamycin, an antibiotic. It is undisputed that Jones did not have the legal authority to order any prescriptions. Jones obtained the prescription for Isham under the name of separate defendant Dr. Ahmed, for whom she had worked for several years. Ahmed frequently traveled to his home country of Pakistan and, at some point, left his prescription pad, stamp, and DEA number in the possession of Jones.[3] Ahmed also admitted that he allowed Jones "to occasionally call in a simple' prescription for her family, friends, and [Ahmed's] family members in [Ahmed's] absence." (Doc. 129-3, p. 45). The full extent and scope of Ahmed's arrangement with Jones is unclear. One pharmacist for BCH at the time, Mary Reese, knew that Jones "could use [Ahmed's] stamp, or call in a verbal order." (Doc. 129-5, p. 23). However, she provided few details on the extent of Jones's and Ahmed's arrangement and her knowledge of Jones's practices.

Isham's symptoms initially improved after taking the Clindamycin ordered by Jones, but the symptoms soon returned. By November 2010, Isham began experiencing a discharge from her right jaw. On January 25, 2011, Isham saw a nurse practitioner, who had authority to write prescriptions, for her symptoms. The nurse practitioner prescribed Clindamycin for her condition, and referred her to an oral maxillofacial surgeon. The surgeon eventually diagnosed Isham with osteomyelitis. The surgeon ordered that Isham receive an antibiotic treatment, and Isham was administered Vancomycin intravenously. Isham was later treated by a different general surgeon for port catheter placement and an additional six-weeks of intravenous Vancomycin therapy to treat the osteomyelitis. Subsequently, the purulent discharge and facial swelling subsided, but Isham continued experiencing constant headaches, a clicking noise in her jaw, and blurred vision. She also learned that a portion of her jaw bone had become necrotic.

Isham alleges that, as a result of Jones prescription, her condition, although initially subdued, was actually aggravated in a subclinical state, eventually causing her to face, inter alia, multiple surgeries, lingering pain, and continuing clicking noises in her jaw. In bringing the instant action, Isham asserts claims for negligence against Jones, Ahmed, and BCH, including a claim for negligent supervision against BCH. Isham also asserts claims against each defendant for breach of fiduciary duty.

II. Legal Standard

Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In deciding on a motion for summary judgment, the Court "must view the evidence in the light most favorable to the nonmoving party." Sappington v. Skyjack, Inc., 512 F.3d 440, 445 (8th Cir. 2008) (internal quotations and citation omitted). Only facts "that might affect the outcome of the suit under the governing law" need be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[T]he non-movant must make a sufficient showing on every essential element of its claim on which it bears the burden of proof." P.H. v. School District of Kansas City, Missouri, 265 F.3d 653, 658 (8th Cir. 2001) (quotation omitted). Essentially, "the non-moving party must be able to show sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy." Binkley v. Entergy Operations, Inc., 602 F.3d 928, 931 (8th Cir. 2010).

III. Analysis

1. BCH's Motion for Summary Judgment

a. Applicability of Arkansas Workers' Compensation Act

BCH first argues that this Court is without jurisdiction to decide the issues under the Arkansas Workers' Compensation Act, Ark. Code Ann. § 11-9-101, et. seq. ("AWCA") because Isham's claims are premised on duties owed to her by virtue of the parties' employment relationship. Specifically, BCH argues that Isham's claim that Nurse Jones was acting for the benefit of BCH in providing a prescription to Isham-ensuring Isham's health and her ability to continue working-brings into question whether or not the injury being claimed is governed by the AWCA. BCH then points out that Arkansas law clearly provides that, once the issue is raised, the AWCA Commission "has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer a fact but one of law, such as an intentional tort." Central Flying Service, Inc. v. Pulaski Cnty. Cir. Ct., 454 S.W.3d 716, 719 (Ark. 2015) (citations omitted).

As a threshold matter, all compensable injuries under the AWCA must arise "out of and in the course of employment." Ark. Code Ann. § 11-9-102(4)(A)(1). "A compensable injury does not include an injury which was inflicted upon the employee at a time when employment services were not being performed." Ganus v. St. Bernard's Hospital, LLC, 457 S.W.3d 683, 686 (Ark. Ct. App. 2015) (citing Ark. Code. Ann. 11-9-102(4)(B)(iii)). "Employment services" has been interpreted by the Arkansas Supreme Court to mean something that is generally required by an employer. Pifer v. Single Source Transp., 69 S.W.3d 1, 3-4 (Ark. 2002). "The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer's purpose or advancing the employer's interest directly or indirectly." Id. at 4 (quoting White v. Georgia-Pacific Corp., 6 S.W.3d 98, 100 (Ark 1999)).

The Court finds that the facts of this case are so one-sided as to not implicate the AWCA. Isham was employed at BCH as a surgical scrub technician. While the underlying actions leading to Isham's alleged injury occurred within the time and space boundaries of her employment at BCH, she was not acting in furtherance of BCH's interest in talking to a coworker about her symptoms and eventually obtaining a prescription from that coworker. To find that Isham was carrying out BCH's purpose in seeking medical treatment that may have allowed her to continue working would be to hold that every employee of BCH seeking medical treatment is advancing their employer's interest. The Court declines to make such a finding. Moreover, even if the relevant inquiry should somehow focus on Jones, she also was not acting within the scope of her employment in providing a ...

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