United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey United States District Judge
the Court is Defendants' Motion for Summary Judgment.
(ECF No. 47). Plaintiffs have filed a response. (ECF No. 52).
Defendants have filed a reply. (ECF No. 55). Plaintiffs have
filed a sur-reply. (ECF No. 59). Defendants have filed a
response to Plaintiffs' sur-reply. (ECF No. 61). The
Court finds this matter ripe for consideration.
case arises out of an alleged medical malpractice action. On
January 27, 2013, Plaintiff William Girlinghouse (“Mr.
Girlinghouse”) was admitted into National Park Medical
Center (“NPMC”) in Hot Springs, Arkansas, and was
diagnosed with pancreatitis. On January 30, 2013, while at
NPMC, Mr. Girlinghouse's oxygen saturation percentage
began to decrease, reaching a low of 83 percent. He was moved
to the ICU later that evening. On January 31, 2013, Mr.
Girlinghouse's oxygenation level declined to the 60s
range. He was intubated and put on a ventilator. On February
12, 2013, he was extubated. At this time, Dr. Donald Brady
found that Mr. Girlinghouse had “mild to
moderate” delirium and had suffered a hypoxic-ischemic
insult with acute respiratory failure. On February 20,
2013, he was moved out of ICU and was discharged to inpatient
rehabilitation on February 26, 2013.
January 28, 2015, Plaintiffs William Girlinghouse and Toni
Girlinghouse filed this this lawsuit against Defendants
Capella Healthcare, Inc. and NPMC Holdings, LLC,
alleging that the NPMC nursing staff did not adequately
respond to Mr. Girlinghouse's decreased oxygenation
levels and refused to call his physician to address the
problem. Plaintiffs argue that if NPMC medical staff had
intervened and intubated Mr. Girlinghouse before January 31,
2013, he would not have suffered hypoxic ischemic
encephalopathy,  causing permanent brain damage. Plaintiffs
allege that Defendants' negligence caused severe injury
that has resulted in past and future mental anguish,
permanent physical impairment, medical expenses, life care
expenses, lost earnings, and loss of earnings capacity.
Plaintiff Toni Girlinghouse also seeks damages for loss of
consortium. Defendants have filed the present Motion for
Summary Judgment, arguing that there is no genuine dispute as
to any material fact and that they are entitled to judgment
as a matter of law.
standard of review for summary judgment is well established.
When a party moves for summary judgment, “[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.”
Fed.R.Civ.P. 56(a); see also Krenik v. County of
LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). This is a
“threshold inquiry of . . . whether there is a need for
trial-whether, in other words, there are genuine factual
issues that properly can be resolved only by a finder of fact
because they reasonably may be resolved in favor of either
party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); see also Agristor
Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). A
fact is material only when its resolution affects the outcome
of the case. Anderson, 477 U.S. at 248. A dispute is
genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party.
Id. at 252.
deciding a motion for summary judgment, the Court must
consider all the evidence and all reasonable inferences that
arise from the evidence in a light most favorable to the
nonmoving party. See Nitsche v. CEO of Osage Valley Elec.
Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving
party bears the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as
a matter of law. See Enterprise Bank v. Magna Bank,
92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must
then demonstrate the existence of specific facts in the
record that create a genuine issue for trial.
Krenik, 47 F.3d at 957. Genuine issues of material
fact exist when “there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that
party.” Anderson, 47 U.S. at 249. A party
opposing a properly supported motion for summary judgment
“may not rest upon mere allegations or denials . . .
but must set forth specific facts showing that there is a
genuine issue for trial.” Id. at 256.
allege Mr. Girlinghouse suffered injury as the proximate
result of improper medical care provided by NPMC.
Specifically, Plaintiffs allege NPMC's nursing staff
failed to adequately respond to Mr. Girlinghouse's
decreasing oxygenation levels and refused to call Mr.
Girlinghouse's physician to address the issue. Defendants
argue that, without expert testimony to support these
allegations as required by Arkansas law, Plaintiffs'
claim fails to set forth a viable cause of action.
suit based on diversity of citizenship jurisdiction, federal
courts apply federal law to matters of procedure and the
substantive law of the relevant state. Hiatt v. Mazda
Motor Corp., 75 F.3d 1252, 1255 (8th Cir. 1996) (citing
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). In
this case, Arkansas is the forum state and the alleged
conduct happened in Hot Springs, Arkansas. Therefore, the
substantive law of Arkansas applies. Under the requirements
of Ark. Code Ann. § 16-144-206(a), the plaintiff in a
medical malpractice action must prove “the applicable
standard of care; that the medical provider failed to act in
accordance with that standard; and that such failure was a
proximate cause of the plaintiff's injuries.”
Ford v. St. Paul Fire & Marine Ins. Co., 339
Ark. 434, 437, 5 S.W.3d 460, 462 (1992). Regarding the third
requirement, this statute imposes the “traditional tort
standard of requiring proof that ‘but for' the
tortfeasor's negligence, the plaintiff's injury or
death would not have occurred.” Id., 5 S.W.3d
malpractice plaintiffs must present proof on the issue of
proximate causation in the form of opinion testimony from a
qualified medical expert. Ark. Code Ann. §
16-144-206(a)(3); Ford, 339 Ark. at 437, 5 S.W.3d at
463. It is insufficient for an expert to merely opine that
negligence was the proximate cause of the injury.
Ford, 339 Ark. at 437, 5 S.W.3d at 463. The
expert's opinion must be stated with a reasonable degree
of medical certainty or probability. Id. Defendants
argue that summary judgment is proper in this case because
Plaintiffs have failed to establish the essential proximate
cause element through expert testimony.
offered three experts on the issue of proximate causation:
Dr. Donald Brady, a treating neurologist; Dorothy Cooke, RN
(“Nurse Cooke”); and Toni Girlinghouse,
Dr. Brady expected to testify “that the negligence
described by Toni Girlinghouse and delays in addressing [Mr.]
Girlinghouse's decompensation on the day in question
resulted in a permanent brain injury.” (ECF No. 47-4).
Dr. Brady was deposed on May 20, 2016, where he stated that
Mr. Girlinghouse's oxygenation saturation percentage
never dropped low enough on January 30, 2013 to cause hypoxic
ischemic encephalopathy. He also testified that he believes
Mr. Girlinghouse suffered a brain injury on January 31, 2013,
and that the brain injury was multifactorial, with factors
including hypoxic-ischemic insult, renal insufficiency,
prolonged sedation, acute narcotic withdrawal, alcohol
withdrawal, environmental factors, sepsis, and multi-organ
insult. Defendants argue that Dr. Brady's testimony is
insufficient to establish the proximate-cause element of
Plaintiffs' prima facie case. The Court agrees.
Dr. Brady's testimony did not conclusively state that Mr.
Girlinghouse's injuries were proximately caused by the
acts or omissions of NPMC's nursing staff. Accordingly,
the Court finds Dr. Brady's testimony insufficient to
prove proximate cause.
Court finds that the only remaining expert opinions offered
by Plaintiffs on proximate cause are those of Nurse Cooke and
Toni Girlinghouse. Plaintiffs initially designated Nurse
Cooke to testify as to the applicable nursing standard of
care. Nurse Cooke's expert disclosure report and
deposition focused on the nursing standard of care, featuring
no opinions on proximate cause. On August 27, 2016,
Plaintiffs offered an affidavit from Nurse Cooke in which she
opined that Mr. Girlinghouse's brain injury was
proximately caused by the nursing care he received while at
designated Toni Girlinghouse as an expert on the applicable
nursing standard of care. On August 27, 2016, Plaintiffs
offered an affidavit from Toni Girlinghouse, in which she
opined that Mr. Girlinghouse's brain injury was