United States District Court, E.D. Arkansas, Jonesboro Division
Marshall Jr. United States District Judge.
is injured in a tractor accident on a rural road. EMTs from
the local volunteer fire department get there first. They
immobilize the man on a spine board. An ambulance comes.
Everyone agrees he should be flown to the hospital, and an
air ambulance is summoned. The ambulance takes him to a spot
where the helicopter can land. It arrives. A nurse employed
by the air ambulance accepts charge of the injured man's
care. Many hands are helping. An EMT from the volunteer fire
department steps down from the back of the ambulance and
pulls the stretcher out. For reasons both murky and disputed
at this point, the stretcher's carriage doesn't
deploy -the frame and wheels don't come down. The end of
the stretcher with the injured man's head on it falls. On
the way to the ground, the man's head hits the
ambulance's bumper. He's then loaded into the
helicopter and flown to the hospital.
what happened to Roy Morley. He and his wife have sued the
ambulance company (Medic One) and its employees on the scene
(Rivera and Byrd), the air ambulance company (Air Evac), the
volunteer EMT who pulled the stretcher out of the ambulance
(Tolewitzke), the local fire department where the EMT
volunteered (the Brookland Fire Protection District), and the
department's insurer (American Alternative). There are
also John Doe defendants-who are dismissed without prejudice
because the time for proposing amended pleadings has passed.
on, there was back and forth about service-related issues and
whether the three-year limitation period had run against Air
Evac. The Court ultimately decided that the air ambulance
company should stay in the case. Air Evac now asks for
summary judgment, arguing mainly that the Morleys' claims
are barred by the two-year statute of limitations
for medical injuries. Air Evac preserves (in the alternative)
its earlier limitations argument; it also says the record
fails on duty and proximate cause. Medic One and its
employees join in this new malpractice-based limitations
argument and the elements arguments. The Brookland-related
defendants seek partial summary judgment. They invoke the
public entity's statutory immunity except insofar as
insurance coverage exists. There's $300, 000 worth.
two-year period for suing about medical injury doesn't
apply to the Morleys' claims.
statute defines "medical care providers" by listing
them. Ambulance companies, air ambulance companies, EMTs,
firefighters, and paramedics aren't listed. ARK. CODE
ANN. § 16-114-201(2). With one exception, no defendant
or individual working for a defendant on this scene was a
medical care provider embraced by the Act. The exception is
the Air Evac nurse who was taking care of Mr. Morley.
nurse isn't a clear path out of the case for Air Evac.
Another company employee was also there. According to some,
this paramedic was helping in the box-the back of the
ambulance -as Morley was moved. The nurse's co-worker
widens the basis for Air Evac's potential liability in
this suit against the company itself.
statute defines medical injury expansively -"any adverse
consequences arising out of or sustained in the course of the
professional services being rendered by a medical care
provider to a patient . . . [.]" ARK. CODE ANN. §
16-114-201(3); Dodson v. Charter Behavioral Health
Systems of Northwest Arkansas, Inc., 335 Ark. 96,
103-04, 983 S.W.2d 98, 102 (1998). Air Evac says that
allowing the stretcher to fall resulted in adverse
consequences for Morley during the course of the nurse's
professional services. This argument is in some tension,
though, with Air Evac's main defense: Medic One was in
charge of Morley's care and responsible for moving him.
Morley s' claims aren't about medical care. They
assert no injury, for example, from the nurse's
intubation of Mr. Morley. They don't complain about her
nursing. Instead, the Morleys' claims are about how Mr.
Morley was handled between the ambulance and the helicopter.
He was a patient, but he was also a passenger. There's no
question that the trained professionals who work in
ambulances provide medical care, often life-saving care. If
the professional is covered by the Act, then the Act applies
to their treatment decisions - including the law's
requirements of expert testimony and a particularly prompt
lawsuit. An analogous fall case in the hospital context is
Sexton v. St. Paul Fire & Marine Insurance Co.,
275 Ark. 361, 631 S.W.2d 270 (1982). If the professional in
the ambulance is not covered, such as Air Evac's
paramedic, then the Act doesn't apply to that
person's decisions. If a covered professional is involved
in the patient's care, as Air Evac's nurse was, then
the Act may or may not apply. It depends on the circumstances
of the injury.
elderly and confused patient prone to falls need a Posey vest
to keep him in bed? E.g., Sexton, supra. That's
a medical judgment. Should a patient be immobilized on a
spine board? Should he be intubated? Those are medical
questions, too. Should a patient strapped to a spine board be
dropped? That's common sense. It's akin to the
question of negligent supervision in Bailey v. Rose Care
Center, 307 Ark. 14, 18-20, 817 S.W.2d 412, 414-15
(1991). The wheelchair-bound patient "was under a
doctor's care while he was in the nursing home, but his
death was not the result of a doctor's treatment or
order.'' Bailey, 307 Ark. at 19, 817 S.W.2d
at 414. He wasn't confined to his bed or room. The issue
was whether he was properly supervised by the LPN (a covered
professional) and nurses' aides (not covered) on the
night he rolled himself out of the facility and onto a
highway. Mr. Morley's circumstances are like those in
Arkansas cases involving ambulances throw only scattered
light. In an older dispute about coverage, it was assumed
that the dropped patient had a negligence claim against the
ambulance company. Owens v. Ocean Accident &
Guarantee Corp., 194 Ark. 817, 109 S.W.2d 928, 928
(1937). In another coverage dispute, the Arkansas Supreme
Court held that the ambulance company was a common carrier:
with a patient and her mother-in-law on board, an ambulance
driver ran a stop sign on the way to the hospital, causing an
accident; the ambulance company was bound by a carrier's
high standard of care to both passengers. Home Insurance
Co. v. Covington, 255 Ark. 409, 411-12, 501 S.W.2d 219,
220-21 (1973). There's also a tangled case about a
nursing home losing control of a wheelchair, dropping a
patient, and allegedly not giving proper care afterward. The
nursing home admitted liability for negligence in the drop,
but litigated damages on that claim. It also said there was
no malpractice in the patient's post-fall medical care.
The case had to be retried after a plaintiff's verdict
because there was no expert testimony about medical
malpractice. Spring Creek Living Center v. Sarrett,
319 Ark. 259, 262, 890 S.W.2d 598, 600 (1995). Nursing homes
are medical care providers covered by the malpractice Act.
The limitations argument Air Evac makes here was not
ventilated in Spring Creek. The Arkansas Court of
Appeals' decision in Glass v. Saline County Medical
Center, 2012 Ark.App. 525, at 1, 423 S.W.3d 618, 619
(2012), involved a hospital's ambulance. It was "a
medical malpractice case." Ibid. No facts are
described; the Act's applicability was assumed;
limitations wasn't argued. Glass makes no
holding on this point.
leading commentators summarize, "not all acts that occur
in a medical setting are claims under the statute."
HOWARD W. BRILL & Christian H. Brill, Law of Damages,
§ 26:1 at 582-83 (6th ed. 2014) (collecting cases);
see generally, Panlino v. QHG of Springdale, Inc.,
2012 Ark. 55, 7-10, 386 S.W.3d 462, 466-67 (2012). This Court
must therefore make something of an Erie-educated prediction.
Blankenship v. USA Truck, Inc., 601 F.3d 852, 856
(8th Cir. 2010). If confronted with the Morleys' claims
and this record, the Arkansas Supreme Court would build on
Home Insurance Co. v. Covington and Bailey v.
Rose Care Center: ambulance services are common
carriers; when an injury allegedly results from an act or
omission contrary to the extra care the law requires in
carriage-related activities, and the injury doesn't arise
from a covered professional's medical treatment or
judgment call, then a negligence claim beyond the malpractice
the essential elements of that claim and this record. Air
Evac, Medic One, and their employees had a duty to Mr.
Morley. No one strapped to a spine board should be dropped.
Marlar v. Daniel, 368 Ark. 505, 508, 247 S.W.3d 473,
476 (2007). Who had control over Morley is a central and
disputed fact. As in most cases, causation is for the jury.
Cash v. Urn, 322 Ark. 359, 362, 908 S.W.2d 655, 657
(1995). Based partly on the acceptance-of-care form signed by
Air Evac's nurse before the stretcher was moved, the jury
could conclude that Air Evac was responsible for getting
Morley into the helicopter safely. Based on the other
testimony highlighted by Air Evac, the jury could conclude
that Medic One was responsible. A stray bottle of
defibrillator gel may have interfered with the safety
mechanism that should have caught the stretcher at the back
of the ambulance. That circumstance could weigh against the
ambulance company, too. The volunteer EMT's role -he rode
with Morley in the ambulance, got down, and then pulled the
stretcher out -can be argued in several ways. In sum, this
record makes a case for the jury on which person or persons
proximately caused this accident.
town of Brookland created the Brookland Fire Protection
District decades ago. This public entity is immune from suit
for the alleged negligence of the department's
firefighters and EMTs except to the extent insurance coverage
exists. ARK. CODE ANN. § 21-9-301 (a) & (b). The
parties agree on all this, and that the American Alternative
policy provides $300, 000 in coverage to the department and
Tolewitzke for his part in transporting Mr. Morley.