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Johnson v. Schafer

Court of Appeals of Arkansas, Division II

December 12, 2018

LEE ARTHUR JOHNSON APPELLANT
v.
SARAH ANDERSON SCHAFER, INDIVIDUALLY AND AS AN EMPLOYEE/OWNER OF FENTER PHYSICAL THERAPY, LLC, AND FENTER PHYSICAL THERAPY, LLC APPELLEES

          APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CV-14-389] HONORABLE PAMELA HONEYCUTT, JUDGE

          David A. Hodges, for appellant.

          Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Scott Provencher and Graham Talley, for appellees.

          MIKE MURPHY, JUDGE

         Appellant Lee Arthur Johnson was allegedly injured during a physical-therapy session at Fenter Physical Therapy. He sued, and the appellees moved for summary judgment for failure to offer expert testimony to support the elements of a medical-malpractice claim. The circuit court granted the motion and Johnson brings this timely appeal. We affirm.

         I. Background

         Johnson had surgery on his left knee on September 11, 2012. He was subsequently referred to physical therapy. On November 5, Johnson began attending physical therapy at Fenter Physical Therapy in West Memphis, Arkansas. On November 9, Johnson alleged he was attending physical therapy when, while his left knee was being manipulated by one of the therapists, Sarah Schafer, he experienced excruciating pain and heard a loud "pop." He sought medical treatment and a second knee surgery took place later in November. Prior to the surgery, doctors believed Johnson may have re-torn his patellar tendon, but once they were inside, it was discovered that there was a small tear in the retinaculum, the tissue next to the patellar tendon, and that it was bleeding. This tissue had been repaired in the previous surgery, but it was retorn. The doctors let the blood out of the knee and stitched up the tear. Johnson had been on blood thinners at the time of the second trauma, and one expert, Dr. Jay Lipke, explained that people who are on blood thinners can bruise easily and bleed badly. He explained that it was the bleeding that caused the need for the second surgery.

         Johnson filed suit on November 5, 2014, against Schafer and Fenter Physical Therapy. In his complaint, Johnson alleged that Schafer failed "to operate at the standard of care required of a physical therapist and that as a result, he suffered a re-injury of his tendon, which required a second surgery to repair." After discovery, Schafer and Fenter Physical Therapy moved for summary judgment, alleging that Johnson lacked the expert proof necessary to support his claim for medical negligence. The circuit court granted the motion for summary judgment, finding that Johnson failed to establish by expert testimony that the appellees breached the applicable standard of care in a manner that caused injury to Johnson. Johnson now timely appeals, arguing that summary judgment was inappropriate.

         II. Standard of Review

         Summary judgment is appropriate if no genuine issues of material fact exist for trial. Neal v. Sparks Reg'l Med. Ctr., 2012 Ark. 328, at 7, 422 S.W.3d 116, 120. Once the moving party has demonstrated an entitlement to summary judgment pursuant to Arkansas Rule of Civil Procedure 56, Arkansas law shifts the burden to the non-moving party, who must show that a genuine issue of material fact remains. Flentje v. First Nat'l. Bank of Wynne, 340 Ark. 563, 569, 11 S.W.3d 531, 536 (2000). At this point, the responding party "must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact." Id.

         In medical-malpractice actions, unless the asserted negligence could be comprehended by a jury as a matter of common knowledge, a plaintiff has the additional burden of proving three propositions by expert testimony: the applicable standard of care; the medical provider's failure to act in accordance with that standard; and that the failure was the proximate cause of the plaintiff's injuries. Ark. Code Ann. § 16-114-206(a). When the defendant demonstrates the plaintiff's failure to produce the requisite expert testimony, the defendant has demonstrated that no genuine issues of material fact exist and is therefore entitled to summary judgment as a matter of law. Hamilton v. Allen, 100 Ark.App. 240, 249, 267 S.W.3d 627, 634 (2007).

         III. Discussion

         The circuit court ruled that Johnson did not establish any one of the above-listed elements by expert testimony. On appeal, Johnson makes the following two arguments: (1) that expert testimony was established, and (2) that even if it was not established, expert testimony is unnecessary because ...


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