AMI 1501 Duty of Physician, Surgeon, Dentist or Other Medical Care Provider

The first bracketed paragraph must be given unless the court determines that expert testimony is not necessary because the case falls within the common knowledge exception. If the first bracketed paragraph is used, do not use AMI 302. The second blank should be used to refer to the expert witnesses determined by the trial court to be qualified to testify as to the standard of care. The expert witnesses may be referred to either by name or by service, e.g., the “spine surgeons.”

The second bracketed paragraph must be given unless the issue of proximate cause is not in dispute, or the court determines that expert testimony is not necessary because the issue of proximate cause falls within the common knowledge exception. The blank that refers to “qualified medical expert” should be used to identify those medical experts the trial court deems qualified to testify about proximate causation. Such experts may be referred to either by name or by category, e.g., medical doctors.

If either bracketed paragraph is used, or if expert testimony is presented, also use AMI 107. If the first and/or second bracketed paragraph is used, use the third bracketed paragraph and do not use AMI 104.

If informed consent is the only issue, use AMI 1506 and do not use this instruction. If informed consent is an issue along with negligence, use AMI 1507 and do not use this instruction. If the plaintiff claims that the medical care provider failed to obtain any consent to treatment from the patient when consent was required, rather than that the medical care provider failed to provide adequate information, this instruction should be modified accordingly.

This instruction accurately states the law. Engleman v. McCullough, 2017 Ark. App. 613, 535 S.W.3d 643 (2017). This instruction is based on Ark. Code Ann. § 16-114-206(a). Previously identified as AMI 1501A, this instruction was cited as a mirror of the statute in Nelson v. Stubblefield, 2009 Ark. 256, at 3, 308 S.W.3d 586, 588 (affirming the giving of this instruction).

In Broussard v. St. Edward Mercy Health Sys., Inc., the Arkansas Supreme Court held that the provisions in Ark. Code Ann. § 16-114-206(a), which provide that expert testimony may only be given by “a medical care provider of the same specialty as the defendant,” violated the separation-of-powers doctrine, Amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of litigants. 2012 Ark. 14, at 7. Accordingly, the Committee amended AMI 1501 following Broussard to substitute the current generic description for the blank in the first bracketed paragraph—“qualified medical expert”—for the pre-Broussard, statute-based description “medical care provider in the same specialty as defendant.” As stated in Broussard, the qualifications of experts in medical malpractice cases are governed by Rule 702, Ark. R. Evid. Note that the Broussard court explicitly limited its holding by stating that “the rest of the malpractice act, including the remainder of section 16-114-206(a)(1) and (2), is unaffected by this decision.” 2012 Ark. 14, at 8. The court's Special Task Force proposed a post-Broussard amendment to Rule 702, In re Special Task Force on Practice and Procedure in Civil Cases—Final Report, 2014 Ark. 47 (per curiam). The court declined to adopt the proposed rule change in light of “overwhelming” negative responses and the Civil Practice Committee’s recommendation to leave Rule 702 unchanged. In re Special Task Force on Practice and Procedure in Civil Cases—Ark. R. Civ. P. 9, 49, 52, and Ark. R. App. P.—Civ. 8, 2014 Ark. 340 (per curiam).

No medical malpractice action should be considered until counsel has reviewed thoroughly the provisions of the Arkansas Medical Malpractice Act, Ark. Code Ann. §§ 16-114-201 et seq., as well as the Civil Justice Reform Act of 2003, Ark. Code Ann. §§ 16-55-201 et seq. These statutes, and the cases arising thereunder, spell out the theories of liability, identity of potential defendants, venue, periods of limitations, applicable standard of care, and the burden of proof.

The locality rule was specifically approved in Gambill v. Stroud, 258 Ark. 766, 769, 531 S.W.2d 945, 948 (1976). This instruction adequately explains the locality rule. Randolph v. ER Arkansas, P.A., 325 Ark. 373, 377–78, 925 S.W.2d 160, 163 (1996). A “similar locality” may be a similar locality in another state as well as in the State of Arkansas. White v. Mitchell, 263 Ark. 787, 798–99, 568 S.W.2d 216, 221 (1978). However, the expert must have sufficient relevant knowledge of the locality where the alleged negligence occurred to be able to identify localities that are similar. Shaffer v. Yang, 2010 Ark. App. 97, at 3–4. Testimony regarding a national standard of care is insufficient where the expert fails to demonstrate a familiarity with the locality where the alleged malpractice occurred. Id. (citing Wolford v. St. Paul Fire & Marine Ins. Co., 331 Ark. 426, 961 S.W.2d 743 (1998)).

In most cases, expert testimony is required to establish the requisite standard of care of a medical care provider. Robbins v. Johnson, 367 Ark. 506, 511–12, 241 S.W.3d 747, 751 (2006) (surgical instrument caused spinal cord injury during disc surgery); Mitchell v. Johnson, 366 Ark. 592, 597–98, 237 S.W.3d 455, 459 (2006) (failure of internist to follow the recommendations of a specialist regarding blood to be used in transfusions); Eady v. Lansford, 351 Ark. 249, 257–59, 92 S.W.3d 57, 62–63 (2002) (physician's duty to inform patient of rare side effects of medication); Williamson v. Elrod, 348 Ark. 307, 311–12, 72 S.W.3d 489, 492–93 (2002) (failure to promptly operate on patient suffering from free air in the abdomen); Skaggs v. Johnson, 323 Ark. 320, 324–26, 915 S.W.2d 253, 255–56 (1996) (portion of drain tube left in patient's leg during surgery); Robson v. Tinnin, 322 Ark. 605, 610–12, 911 S.W.2d 246, 248–50 (1995) (changing of dental implants and treatment of fractured teeth); Reagan v. City of Piggott, 305 Ark. 77, 80–82, 805 S.W.2d 636, 637–39 (1991) (failure to diagnose appendicitis); Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 362–63, 631 S.W.2d 270, 271–72 (1982) (failure to order restraining vest); Napier v. Northrum, 264 Ark. 406, 411–12, 572 S.W.2d 153, 156 (1978) (failure to warn patient of risk of lung puncture during anesthesiology procedure); Davis v. Kemp, 252 Ark. 925, 926–27, 481 S.W.2d 712, 712–13 (1972) (whether to irrigate wound and prescribe antibiotics, and failure to find glass in wound); Nelms v. Martin, 100 Ark. App. 24, 28–30, 263 S.W.3d 567, 570–72 (2007) (portion of surgical instrument left in knee after surgery). Expert testimony is also required to establish that asserted negligence was a proximate cause of injuries when a patient suffers from a pre-existing condition. Fryar v. Touchstone Physical Therapy, Inc., 365 Ark. 295, 301–02, 229 S.W.3d 7, 12–13 (2006).

However, there is an exception to the general requirement of expert testimony when the asserted negligence lies within a jury's comprehension as a matter of common knowledge, such as when a surgeon fails to sterilize his instruments or remove a sponge from an incision before closing it. See Rogers v. Sargent, 2010 Ark. App. 640, at 5 (citing Spears v. McKinnon, 168 Ark. 357, 270 S.W. 524 (1925)); Haase v. Starnes, 323 Ark. 263, 269, 915 S.W.2d 675, 678 (1996) (citing Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944)). In Pry v. Jones, expert testimony was held unnecessary where a physician severed a ureter that he had failed to identify and locate while removing an ovary. 253 Ark. 534, 539–40, 487 S.W.2d 606, 608–09 (1973). The Arkansas Civil Justice Reform Act of 2003 retains this exception to the requirement of expert testimony. Ark. Code Ann. § 16-114-206(a).

The doctrine of res ipsa loquitur may apply in appropriate circumstances in medical malpractice cases. Rogers, 2010 Ark. App. 640, at 6; Schmidt v. Gibbs, 305 Ark. 383, 387–91, 807 S.W.2d 928, 931–33 (1991). See also, Taylor v. Riddell, 320 Ark. 394, 402–05, 896 S.W.2d 891, 895–96 (1995); Nelms, 100 Ark. App. at 32–33, 263 S.W.3d at 573–74 (holding that the plaintiff failed to establish one of the essential elements of res ipsa loquitur and that the accident that caused the injury was one that, in the ordinary course of things, would not occur if those having control and management of the instrumentality had used proper care where there was expert testimony that the physician had in fact met the standard of care).

The defense of charitable immunity is often raised in medical malpractice cases. The Arkansas Supreme Court has provided eight factors to be considered when determining whether a corporation is entitled to charitable immunity. Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995). In Progressive Eldercare Servs-Saline, Inc. v. Cauffiel, 2016 Ark. App. 523, 508 S.W.3d 59 (2016), the Arkansas Court of Appeals, in an en banc opinion, affirmed the denial of a motion for summary judgment on the defense of charitable immunity. The court held that there were genuine issues of material fact as to whether the facility had abused the charitable form.

A pharmacist owes no duty to customers to warn of risks or dangers associated with medications prescribed by a physician or to refuse to fill legally written prescriptions. Kowalski v. Rose Drugs of Dardanelle, Inc., 2011 Ark. 44, at 14–16.

In 2013, the Arkansas General Assembly (Regular Session) repealed the private cause of action for a violation of residents rights under Ark. Code Ann. § 20-10-1209(a)(1). 2013 Ark. Acts. 1196. A claim for the violation of residents rights must now be brought under the Arkansas Medical Malpractice Act, Ark. Code Ann. § 16-114-201.

For cases involving a claim that the medical care provider failed to obtain any consent to treatment from the patient when consent was required, rather than that the medical care provider failed to provide adequate information, see the Comment to AMI 1506.