dissenting. I agree in full with the Chief Justice’s dissent in this case but feel a need to write on an issue I feel is quite important in this case.
Our past cases have held that a practitioner must adhere to local standards and practices: this has been codified through Act 709 of 1979 (§§ 34-2601 et seq. [Supp. 1981]). Ark. Stat. Ann. § 34-2614 addresses this point:
(A) In any action for medical injury, the plaintiff shall have the burden of proving:
(1) That the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality; and
(2) That the medical care provider failed to act in accordance with such standard; and . . .
In the present case the appellants were prevented from introducing into evidence the Arkansas Department of Health’s “Rules and Regulations for Hospitals and Related Institutions in Arkansas,” which specifically require that a complete history and physical work-up by a physician be in the chart of every patient prior to surgery. These standards are applicable state-wide and would, therefore, be applicable as to the community in which appellee practiced at the time of the occurrence. The appellants at the lower court level had established a basis for proving that the regulation was not complied with when they introduced a preoperative check list which listed 18 items to be performed and initialed before surgery. One of these items was that the history and physical be on the patient’s chart. Beside this numbered requirement was a box to be checked if this information had been dictated only. The appellee testified that he had this information available to him but did not get it into the boy’s chart until almost two weeks after the operation. On the postoperative check list it was noted that the history and physical were not on the chart and the square was not checked that this material had been dictated. The appellants’ contention at trial was that a complete history and work-up would have indicated elapsed time from the initial injury as well as how and where the injury occurred. They felt this information would be important in diagnosing, consulting and treating the boy for his injuries. Whether this would have proven negligence to the satisfaction of the jury is unknown for the jury was not allowed to consider the rules and their alleged violation.
Counsel for the plaintiff had a right to develop his theory of the case the way he saw fit, within our rules of procedure and evidence. Uniform Rules of Evidence, Rule 401, defines relevant evidence by stating:
"Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
I believe the rules and regulations in question clearly are within our guidelines as to evidence relevant in meeting the plaintiff’s burden of proof and would have been a proper method of proving negligence. The appellee’s actions or inactions in regard to these rules and regulations may not have been the sole proximate cause of the boy’s disability, but may have been one link in a chain of events which taken together would allow a jury the opportunity to find a party negligent. The “causal connection” referred to in the majority opinion becomes perfectly clear through the use of this approach.
In any event, the Arkansas Department of Health’s rules and regulations should have been allowed into evidence and if the judge felt an explanation to the jury was necessary, he could have made such explanation, limitation or admonishment to them upon the introduction of the material into evidence or through the jury instructions.
Counsel has the right to follow a set of trial tactics in attempting to prove the negligence of a defendant. In this case appellants were thwarted in these efforts after haying laid the foundation for them. The question then becomes whether this material was relevant. I believe that it was error not to allow the rules and regulations into evidence. I would reverse and remand.