dissenting. I respectfully dissent from the majority opinion because I believe that the trial court was correct in finding that the appellant did not meet proof with proof and in finding that no genuine issue of material fact existed. Therefore, I would affirm the court’s grant of appellee’s motion for summary judgment.
The issue in this case is whether appellant met her burden of proof in establishing that a genuine issue of fact existed as to whether she suffered any pain as a result of appellee’s failure to diagnose her broken hip. The majority argues that she met her burden even though no expert testimony was presented to support her argument that she suffered pain. I do not agree with the majority opinion’s position that it can be assumed that she suffered pain, without any medical testimony to support such a finding.
Proof required to survive a motion for summary judgment in a medical malpractice case must be in the form of expert testimony. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). The expert testimony must be stated within a reasonable degree of medical certainty or probability. Id.
In finding that this case should be reversed and remanded, the majority opinion states that a fact question was presented because appellant stated that she was in pain, that her medical records support such a claim, and that two doctors in their depositions stated that “these types of injuries” generally cause pain.
I do not find that the abstract supports those findings. Viewing the evidence in the light most favorable to appellant, as this court must do, I do not find there to be anything in the abstract to suggest that any genuine issue remained. The testimony that appellant suffered pain came from her daughter, who stated that when appellant was getting dressed she yelped in pain. However, the medical records do not reflect that appellant, herself, complained of any hip pain. In fact, as the majority opinion points out, Dr. Edwards testified that she did not complain to him of any pain prior to the taking of the x-ray diagnosing the broken hip. Also, Dr. Axelsen testified that he was not aware of anything in her medical records that indicated that appellant ever complained of any pain. In addition, Dr. Axelsen stated that a broken hip does not always cause pain. Also, Watts’s medical records reflect that she did not ask for, nor was she given, any pain medication during the three days preceding the diagnosis of her broken hip.
The majority opinion relies upon case law that states that expert testimony is not needed when the asserted negligence lies within the comprehension of a jury of laymen, such as the failure of a doctor to sterilize his instruments or to remove a sponge from an incision before closing it. I do not agree that expert testimony was not needed in this case. For its proposition that medical testimony was not needed, the majority relies upon Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995). However, in Robson, the court upheld the trial court’s grant of summary judgment, holding that expert testimony was needed to establish negligence. The court then wrote, “[T]he argument assumes that simply because treatment is available for medical injury, it follows that it is negligence for a medical care provider not to provide the treatment. That is not and has never been the law of medical malpractice.”
In the landmark case of Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944), the court held that when expert testimony will shed no light on the issue of medical malpractice alleged in the lawsuit, the testimony is not needed. In that case, the surgeon performing an eye operation failed to sterilize his instruments or wash his hands before performing the surgery. The appellant in that case, who suffered an infection as a result of the surgery, stated that the surgeon was guilty of negligence because of his failure to wash his hands and sterilize his instruments. The court held that expert testimony was not needed because “[tjhere was no dispute whatever as to what was the proper course to be pursed by appellant in preparing for and performing the operation.” Id. at 378, 180 S.W.2d at 820-21. The court went on to state that “[i]t was not denied that it was necessary and proper for appellant to cleanse his hands thoroughly and to sterilize his instruments. The dispute in this case was as to whether or not appellant followed the course which is conceded to be necessary and proper.” Id. However, the court noted, “If there could, under the testimony, be any dispute as to the method used in the operation or in the treatment of the patient it would be necessary to establish the correct method by expert witnesses ....” Id. (emphasis added). Further, this court has held that a jury should not be permitted to speculate whether or not the experts in the practice of their profession have pursued the proper course of procedure. Id. at 382, 180 S.W.2d at 822-23 (quoting from Gray v. McDermott, 188 Ark. 1, 64 S.W.2d 94 (1933)).
In the case at bar, we do not have a simple question like the one in Lanier, supra. Instead, we are faced with the question of whether the doctors treating appellant “pursued the proper course of procedure” and whether their failure to do so caused appellant to suffer pain. Even the doctors, as expert witnesses, disagreed on whether pain is readily associated with a broken hip. Assuming that appellant did suffer pain, the first time it was noted in her medical chart was the day it was diagnosed. And none of the doctors testified within a reasonable degree of medical certainty that appellant suffered pain. As stated above, there was testimony that she did not complain and was not on pain medication during the three days after she was brought to the emergency room.
In summary, we cannot simply assume that appellant suffered pain. Clearly no expert testimony was offered that stated, within a reasonable degree of medical certainty, that appellant suffered pain.