FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CV-14-389]
HONORABLE PAMELA HONEYCUTT, JUDGE
A. Hodges, for appellant.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.,
by: Scott Provencher and Graham Talley, for appellees.
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.
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.
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.
Standard of Review
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.
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).
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 ...