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Hagar v. Shull

Court of Appeals of Arkansas, Division IV

March 29, 2017

DEREK SCOTT HAGAR, ADMINISTRATOR OF THE ESTATE OF DARREN SCOTT HAGAR, DECEASED, AND ON BEHALF OF THE WRONGFUL-DEATH BENEFICIARIES OF DARREN SCOTT HAGAR, APPELLANT
v.
ROBERT T. SHULL, M.D., APPELLEE

         APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CV-2010-721] HONORABLE PAMELA HONEYCUTT, JUDGE

          Appellate Solutions, PLLC, d/b/a/ Riordan Law Firm, by: Deborah Truby Riordan; and Trammell Piazza Law Firm, PLLC, by: Melody H. Piazza and M. Chad Trammell, for appellant.

          Wright, Lindsey & Jennings LLP, by: David P. Glover, Gary D. Marts, Jr., and Carson Tucker, for appellees.

          ROBERT J. GLADWIN, Judge

         In this medical-malpractice/wrongful-death case, appellant Derek Scott Hagar, as the administrator of the estate of his late father, Darren Scott Hagar, and as representative of his father's wrongful-death beneficiaries, appeals from a jury verdict in favor of appellee, Dr. Robert Shull. For reversal, appellant argues that the circuit court erred in certain evidentiary rulings, in restricting his cross-examination of Dr. Shull, and in instructing the jury. We affirm.

         I. Background

         Darren Scott Hagar (Scott) died on January 15, 2010, at age forty-two. He suffered from morbid obesity, severe obstructive sleep apnea, and a host of other medical problems and had been treated for many years by his primary-care physician, Dr. Trent Pierce. In December 2009, Scott visited Dr. Pierce for a checkup and underwent a chest x-ray. The results were unremarkable.

         Less than a month later, on Wednesday, January 13, 2010, Scott presented to Dr. Pierce with flu-like symptoms. Dr. Pierce prescribed Tamiflu, cough medicine, Cipro (an antibiotic), and the pain medicine Darvocet. Scott's condition improved somewhat, but he was still coughing and began to experience pain on his right side. According to his wife, he had also coughed up blood. At approximately 4:00 a.m. on Friday, January 15, 2010, Scott's mother drove him to the Crittenden County Hospital emergency room.

         Upon arriving at the ER, Scott complained of severe abdominal pain and coughing with recent flu. The triage nurse noted, among other things, that Scott was alert and oriented; that his breathing was not labored; and that his temperature and blood pressure were normal. However, Scott also registered a below-normal pulse-oximeter reading and elevated respiration and pulse rates.

         Scott was next seen by Registered Nurse Geraldine Massey, who recorded that he had pain in his right ribs and a cough that produced blood (which she did not personally witness). Shortly thereafter, Scott was examined by the ER physician on call, appellee Dr. Robert Shull. Dr. Shull noted that Scott complained of a cough; of chest and abdominal pain worsened by a deep breath; and of being dissatisfied with the Darvocet that Dr. Pierce had prescribed for pain. The doctor also listened to Scott's breathing and detected a sound called "rhonchi, " which was consistent with bronchitis, but did not detect a "rales" sound, which would have been consistent with pneumonia. Knowing that Scott was already being treated with an antibiotic, Dr. Shull diagnosed him with muscle strain from coughing and prescribed a more potent painkiller, Lortab. Scott's mother insisted on a chest x-ray, which was taken within a short time and transmitted electronically to the hospital's computer system.

         According to Dr. Shull, he viewed the x-ray on the ER's computer terminal and determined that Scott had atelectasis-a collapse of small airways in the lungs that is common in larger patients-but not pneumonia. The doctor conveyed that information to Nurse Massey, who told Scott that the x-ray was fine and that he could leave. Scott was discharged at approximately 6:00 a.m., after which he dropped his Lortab prescription off at the drug store and returned home.

         Later that morning, hospital radiologist Dr. Mark Mills read Scott's chest x-ray. Dr. Mills observed an "enlarged" cardiac silhouette and evidence "suggesting pneumonia or atelectasis." He did not contact Scott's family or Dr. Shull, who had gone off duty.

         Meanwhile, Scott's family tried to telephone him throughout the day but could not reach him. Late that afternoon, Scott's mother went to his house and saw him through a window, sitting motionless. She called 911, and paramedics transported Scott back to Crittenden County Regional Hospital between 6:00 p.m. and 7:00 p.m. There, Scott was pronounced dead by Dr. Shull, who had just come back on duty.

         Concerned that he had missed something, Dr. Shull reviewed Scott's chest x-ray and read the radiologist's report. Upon doing so, he was satisfied that his diagnosis was correct and that Scott ...


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