dissenting. If our standard on review of summary judgment is that we actively work to prevent a medical malpractice case from going to trial, then we should clearly state that goal. The reality is that we are not far from that practice now. One study conducted by the U.S. Department of Health and Human Services revealed that only 1.53% of those injured by medical malpractice file a claim. See KimberlyJ. Frazier, Arkansas’s CivilJustice Reform Act of2003: Who’s Cheating Who?, 57 Ark. L. Rev. 651, 655 & n. 28 (2004). The same study indicated that a mere 8-13% of the claims filed by these injured patients or their survivors proceeded to trial; “and of these only 1.2-1.9% ended with a verdict favorable to the plaintiff.” Id. nn. 29-30. See also Examining the Work of State Courts, 2005, A National Perspective from the Court Statistics Project (2006) at 29 (concluding that in 2004, medical malpractice cases accounted for an average of only four percent of tort cases in 13 states reporting).
Eliminating the threat of a jury trial would have an enormous impact on the handling of malpractice claims. As Neil Vidmar, a professor with Duke University known for his extensive study of medical malpractice litigation, recently explained in testimony to the U.S. Senate, “Without question the threat of a jury trial is what forces parties to settle cases. The presence of the jury as an ultimate arbiter provides the incentive to settle but the effects are more subtle than just negotiating around a figure. The threat causes defense lawyers and the liability insurers to focus on the acts that led to the claims of negligence.” Testimony of Neil Vidmar, Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 21. (Citations omitted.)
As Professor Vidmar opined, the threat of the jury trial forces those defending to actually examine the acts of the medical care providers. Ordinarily, one might anticipate that a system of justice would encourage the participants to focus on the facts and circumstances surrounding the allegations of harm. Given that just fractions of a percentage of claims ever come to trial in a medical malpractice case, the courts should be particularly vigilant in adhering to our procedural safeguards.
Instead of adhering to precedents that safeguard these procedures, the majority states the following in its opinion: “We take this opportunity to review and clarify the parties’ burdens of proof regarding summary judgment when the movant is the defendant in a medical-malpractice action.” The five judges in the majority on this panel then purport to, for lack of a better term, “correct” the five judges in the majority on McAdams v. Curnayn, 96 Ark. App. 118, 239 S.W.3d 17 (2006). While I dissented on other grounds in McAdams, the majority in McAdams did accurately state our supreme court’s precedents regarding the standard of review for summary judgment in medical malpractice cases. My dissent in this case is based upon two premises: (1) We have no authority to overrule our supreme court’s mandates on the standard of review for summary judgment cases; (2) Our supreme court applies the same standards of proof in a summary judgment case involving medical malpractice as it does in any other case disposed of by summary judgment.
The majority disagrees with each of those premises as it further decrees: “By the opinion we issue today, we acknowledge that insofar as McAdams appears to say that a defendant/summary-judgment movant in a medical malpractice case is required to present affirmative proof of the standard of care and that the defendant’s conduct conformed to that standard, McAdams is an incorrect statement of the law where the basis of the summary-judgment motion is the plaintiff’s failure to produce evidence to establish an essential element of the plaintiff’s case.”1
Perhaps the majority has adopted the general premise of the legislature’s enactment of The Civil Justice Reform Act of 2003: “The Civil Justice Reform Act of 2003 (hereinafter ‘Act 649’) transforms the manner in which Arkansas courts must conduct business.” Frazier, supra. One author, Kimberly Frazier, applied Act 649 to Advocat Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003), a case involving negligence of a nursing home, to explain the effect the Act had upon the court’s practices:
Under Act 649, a cause of action with the same facts would have had higher burdens of proof for punitive damages, diminished venue option, no possibility of joint liability, different pleading requirements and a maximum jury award of $1 million dollars (in stark contrast with the $63 million in punitive damages initially awarded in Sauer).
Of course, I believe that where the Act infringes upon the court’s rules and procedures, our supreme court will reject any such infringement. One example of such a rejection is our supreme court’s finding as unconstitutional Act 649’s requirement that a trial court dismiss a plaintiff s malpractice case if a plaintiff fails to file an affidavit of reasonable cause within thirty days of filing her complaint, now codified at Ark. Code Ann. § 16-114-209(b) (Repl. 2006). See Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007). Our supreme court concluded that the mandatory thirty-day requirement for the affidavit of reasonable cause after filing the complaint directly conflicted with Rule 3 of our Rules of Civil Procedure regarding commencement of litigation. Id. Accordingly, they reversed and remanded the case for further proceedings. Id. In explaining its reasoning, our supreme court quoted with approval a sister court’s striking of a similar provision:
The Oklahoma legislature implemented the Affordable Access to Health Care Act... for the purpose of implementing reasonable, comprehensive reforms designed to improve the availability of health care services while lowering the cost of medical liability insurance and ensuring that persons with meritorious injury claims receive fair and adequate compensation. Although statutory schemes similar to Oklahoma’s Health Care Act do help screen out meritless suits, the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs. The affidavit of merit provisions front-load litigation costs and result in the creation of cottage industries of firms offering affidavits from physicians for a price. They also prevent meritorious medical malpractice actions from being filed. The affidavits of merit requirement obligates plaintiffs to engage in extensive pre-trial discovery to obtain the facts necessary for an expert to render an opinion resulting in most medical malpractice causes being out of court during discovery. Rather than reducing the problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs’ claims based solely on procedural, rather than substantive grounds.
Summerville, 369 Ark. at 236-37, 253 S.W.3d at 419 (quoting Zeier v. Zimmer, Inc., 152 P.3d 861, ¶ 21 869 (Okla. 2006)) (emphasis added).
Our supreme court’s rejection of this legislative infringement upon court procedures in the management of a medical malpractice action reaffirms the premise that we do not have a different standard of review for orders granting summary judgment in a medical malpractice case. Nor should we. Despite much discussion to the contrary, litigation and the threat of jury trials improves health care in much the same way that litigation in other contexts protects the safety of the citizens of this country:
In the absence of a comprehensive social insurance system, the patient’s right to safety can be enforced only by a legal claim against the hospital. . . . [Mjore liability suits against hospitals may be necessary to motivate hospital boards to take patient safety more seriously. . . . Anesthesiologists were motivated by litigation to improve patient safety. As a result, this profession implemented 25-years-ago a program to make anesthesia safer for patients and as a result, the risk of death from anesthesia dropped from 1 in 5000 to about 1 in 250,000.
George J. Annas, J.D., M.P.H., “The Patient’s Right to Safety — Improving the Quality of Care through Litigation against Hospitals,” New England Journal of Medicine, May 11, 2006.
Under the majority’s analysis, a plaintiff in a medical malpractice case has a higher burden of proof at the summary judgment stage of a proceeding than a plaintiff in any other type of case. A plaintiff has to establish through expert testimony that the defendant committed malpractice before a plaintiff is allowed to present that proof to the fact-finder. According to the majority, all a defendant in a medical malpractice case need allege in a motion for summary judgment is that the plaintiff has not yet met, by expert testimony, his burden of proof pursuant to the statutes. No provision in the medical malpractice statutes requires that a plaintiff meet his or her burden of proof prior to trial. Neither has our supreme court adopted that standard:
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable persons might reach different conclusions from those undisputed facts.
Rice v. Tanner, 363 Ark. 79, 82, 210 S.W.3d 860, 863 (2005) (citations omitted) (holding that once a movant in a medical malpractice case presents evidence in a summary judgment context establishing the standard of care and that the standard of care was met by the defendant, the nonmoving party must present evidence to create a fact question).
In the context of summary judgment, our duty as a reviewing court is to determine, first and foremost, whether the moving party has presented evidence that establishes that the facts are undisputed and that the only conclusion from the undisputed facts is that the movant’s actions cannot be the legal basis for recovery. See id. The majority’s confabulation of our standard by inserting a sufficiency determination in a medical malpractice summary judgment is perplexing. What is even more confusing is the majority’s citation to federal procedure and precedent to support this perversion. Not only is our supreme court not bound by federal case law interpreting federal procedural rules regarding summary judgment, but our supreme court has specifically rejected the premise that a trial court considering a summary judgment motion should determine whether the evidence presented at summary judgment is sufficient to sustain a burden of proof at trial:
Also cited by the petitioners is Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), in which the Supreme Court stated that the summary-judgment standard “mirrors the standard for a directed verdict.” That statement was repeated by the Supreme Court, although it was not the basis of the holding, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), a case we have cited often for other language concerning summary-judgment law but not for the “mirror” concept.
If it has not been clear heretofore, we hope this opinion clarifies that, although we follow federal courts’ interpretation of the parallel rule, F.R.C.P. 56(c) when possible for the sake of uniformity, we have never gone so far as to say, much less hold, that we will make a “sufficiency of the evidence” determination when a summary-judgment motion is at issue. We regard that directed-verdict standard, used in ruling on motions made pursuant to Ark. R. Civ. P. 50, as being somewhat different from the summary-judgment standard.
We have ceased referring to summary judgment as “drastic” remedy. We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law.
Wallace v. Broyles, 331 Ark. 58, 194-95, 961 S.W.2d 712, 723-24 (1998) (emphasis added).
Our supreme court admonishes that a “sufficiency of the evidence” determination is not the appropriate standard when a summary-judgment motion is at issue. That specific admonition alone requires reversal of the case before us. In direct contradiction with our supreme court’s instruction that sufficiency of the evidence is not our determination, the majority opines: “Appellees demonstrated their prima facie entitlement to summary judgment by attaching to their motion portions of Dr. Hume’s deposition demonstrating that his opinion of negligence on the part of appellee was speculative, thus rendering his opinion insufficient to satisfy Hamilton’s burden of proof.”2
Not only does the majority err by applying a sufficiency of the evidence standard to hold that the expert’s opinion was insufficient to satisfy Hamilton’s burden of proof, but the majority also further compounds that error by completely ignoring the fact that the medical expert is legally incapable of admitting that his testimony is impermissibly speculative. Examining the appellees’ motion for summary judgment makes the majority’s error painfully clear.
Paragraph two of appellees’ motion for summary judgment reads as follows: “Expert testimony is inadmissible if based upon speculation.” Paragraph three states the following: “Plaintiffs only liability expert witness, Dr. Joseph Hume, admitted during his deposition that he bases his opinions regarding the issue of negligence (and therefore on the issue of causation) on speculation.” Paragraph four continues with this conclusion: “Because plaintiff s theories of negligence and causation are based upon speculation, testimony regarding those theories is inadmissible and thus plaintiff cannot satisfy her burden of proof against Dr. Allen and Dr. Taylor. Where a plaintiff cannot meet her burden of proof on an essential element of her claim, the defendant is entitled to summary judgment.”
Appellees’ motion for summary judgment characterized the medical expert’s testimony as speculation. In their brief in support, appellees cite three cases and proclaim that “the Supreme Court affirmed directed verdicts in favor of medical care providers where plaintiffs failed to present expert medical testimony to support their allegations of negligence against medical care providers.” (Emphasis added.) Motions for directed verdict and judgment notwithstanding tbe verdict as to proof of negligence and resulting damages are challenges to the sufficiency of the evidence. See Callahan v. Clark, 321 Ark. 376, 386, 901 S.W.2d 842, 847 (1995); see Conagra, Inc. v. Strother, 340 Ark. 672, 676, 13 S.W.3d 150, 153 (2000) “motion for JNOV is technically only a renewal of the motion for a directed verdict made at the close of the evidence).
Appellees’ entire motion is based upon their claim that Dr. Hume admitted that his opinions were based upon speculation. While that argument may be appropriate in the context of analyzing whether or not a trial court properly directed a verdict in a jury trial, it is inapplicable to our analysis regarding the propriety of an order granting summary judgment. As convenient as the argument may be, it is understandable why appellees failed to include any legal authority regarding any admission by Dr. Hume that his opinion was impermissibly speculative as a matter of law. While there is nothing in the record to indicate that Dr. Hume would have had any insight into the legal significance of impermissible theorizing to reach a conclusion, even if he had testified that he was the foremost legal authority in the country on evidentiary matters with an emphasis on impermissible speculation, his legal opinion as to the admissibility of his testimony would be completely irrelevant. Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997).3
Nothing Dr. Hume might have said could relieve the trial court of its duty to review the “evidence” presented to it to determine whether a factual matter was presented. It was the trial court’s duty, not a party’s nor a witness’s, to determine whether the appellees had established a prima facie case that they were entitled to judgment as a matter of law. The duty of a plaintiff, even in a malpractice case, to present proof prior to trial only arises when the moving party first establishes a prima facie case that judgment is warranted as a matter of law. When the proof supporting a motion for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof with proof. See Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995); Wolner v, Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986). Our supreme court has explained the application of this principle in previous malpractice cases:
In Wolner, the plaintiff was in the hospital for prostatic surgery, and following surgery, he rose from a chair, fell, and broke his arm. He sued the hospital and his urologist, and the circuit court granted summary judgment in favor of both. Our supreme court reversed with respect to the urologist and stated that it was the responsibility of the urologist, as the moving party, to prove the requisite standard of care and that he had conformed to that standard of care before the opposing party was required to present proof of the contrary. This he failed to do.
Similarly, in Collyard v. American Home Assur, Co., supra, the issue was whether proof was sufficient to sustain summary judgment in a slip and fall case. The plaintiff (Collyard) gave a deposition in which she stated that she did not know how the water causing her fall got on the floor or how long it had been there. The defendant business (YMCA) where the plaintiff fell moved for summary judgment and attached the plaintiffs deposition in support of the motion. The circuit court granted the motion in favor of the defendant because the plaintiff had not responded to the motion by countervailing proof. This court reversed and stated:
The appellant [Collyard] alleged negligence on the part of the YMCA. The appellee [YMCA] never controverted this allegation by affidavit or other proof. It simply offered the deposition of Collyard that she did not know how the water got there or how long it had been there. The appellee and trial judge mistakenly presumed that the burden was on Collyard to come forward with additional proof on this issue. The burden in a summary judgment proceeding is on the moving party; it cannot be shifted when there is no offer of proof on a controverted issue. The object of a summary judgment is not to try the issues but to determine if there are issues of fact. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1967).
Whether the YMCA was negligent remained a fact in issue. If appellant had offered proof that the YMCA was not negligent, then Collyard would have had to produce a counter-affidavit or proof refuting the offer. But that was not the case. The appellee based its motion only on the deposition of Collyard, the plaintiff. The allegation in the complaint remained uncontroverted and Collyard should be permitted to present other evidence on that fact. Collyard, 271 Ark. at 229-230, 607 S.W.2d at 668.
Cash v. Lim, 322 Ark. 359, 365-66, 908 S.W.2d 655, 658-59 (1995) (reversing and remanding summary judgment award holding that surgeon’s deposition, which was attached to defendants’ motion for summary judgment, did not constitute proof of lack of causation that required countervailing proof from plaintiffs).
Applying the principles discussed in Wolner, supra, and Cash, supra, appellees as the moving party had to prove the requisite standard of care and that they had conformed to that standard of care before appellant was required to present proof to the contrary. Appellees’ failure to provide proof that they had met the standard of care precluded the entry of summary judgment and requires reversal in this case.
It may seem axiomatic, from reading our supreme court precedents and our reiteration of those precedents in McAdams, that appellees failed to make a prima facie case by failing to first establish conformity with the standard of care. Yet, appellees’ based their argument and the majority renders its opinion upon the assumption that appellees only needed to prove that appellant had not yet presented the requisite expert testimony. Rather than presenting evidence that established the standard of care and compliance with that standard, appellees presented evidence that appellant’s expert witness had not demonstrated the standard of care and violation of that standard that proximately caused damages to appellant. The argument is convenient for appellees who conducted the deposition of appellant’s expert witness and were under no obligation to inquire as to the standard of care and compliance with the standard in questioning appellant’s expert.
Even with their complete control of the questioning of appellant’s expert, Dr. Hume, the statements by Dr. Hume were not as impermissibly speculative as the majority contends. Dr. Hume testified that the deviation from the standard of care in this case came from the failure to properly identify the cause of the excessive bleeding which would have been identified if Dr. Allen had adequately opened the incision area. Appellees’ counsel questioned, “If I understand your testimony, your opinion in this case that Dr. Allen deviated below the standard of care is based upon your opinion that there was a third bleeding site that was not identified?” It is clear from the context that the third site was not identified by Dr. Allen because he did not extend the incision enough to visualize the area in question. When appellees’ counsel asked, “And it would be speculation to say they would have found anything, correct?”, Dr. Hume responded, “Well, no, I still think that there was a bleeder from the first surgery that they didn’t get or they tamponaded it just enough when they put those sutures in for the oozers and then it reopened up.”
Ironically, the testimony that the appellees and the majority apparently rely so heavily upon regarding speculation surrounds the attempts by counsel to commit Dr. Hume to saying that the excessive bleeding was caused by the two sources of bleeding identified by appellees but that appellees just failed to adequately address the bleeding:
Q: And you don’t have any reason to doubt, as we sit here today, Dr. Allen’s testimony concerning how far he opened that up?
A: No. I don’t have any — he just didn’t go all the way up in the infundibulopelvic retroperitoneal space of the ligament.
Q: So am I correct, do you believe that there was a third bleeding site?
A: Probably. It was artery. And we know he didn’t get it because the surgeon found it on the 12th.
Q: Just to make sure I understand. During the second surgery, meaning the first exploratory surgery, from your review of the records and Dr. Allen’s deposition, it’s your opinion that there was a third bleeding site?
A: That’s correct.
Q: What in your opinion caused that third bleeding site?
A: I think that the vessell retracted.
Q: When did the vessel retract?
A: At the initial surgery, he lost it in the clamp, pulled back. Or it could have torn, depending upon how much tension was placed on it.
Q: Did you see in looking at the operative note from the second surgery, any evidence of continuing bleeding after Dr. Allen had sutured the two bleeding sites he identified?
A: He sutured the two oozing and he didn’t feel he saw any other sites. But I think that it was probably tamponaded for a bit and then it opened back up. Since its arterial it will go through spasms.
Q: So in other words, you don’t know whether this third bleeding site was actually bleeding at the time of the second surgery?
A: That’s correct.
Q: It would be speculation on your part to say that it was bleeding?
A: It would be speculation. But for the amount of blood that she had there, it probably had bled on and off to make the volume up so great.
A: I feel that the amount of blood there was not — was more than what the two oozes would cause.
Q: Is that based upon your opinion that the sites were both oozing at the time of the second surgery?
A: Right.
Q: So as far as whether they had been bleeding more vigorously before —
A: I have no opinion on that.
Q: So in other words, when you saw the oozing of the two sites Dr. Allen identified during the second surgery, you can’t say without speculating that those two sites, or one or the other, wasn’t bleeding more vigorously before?
A: I can’t say for sure that one of those was bleeding heavy.
Q: So as far as the blood that was actually found during the second surgery, it would be speculation to say that it didn’t come from one or both of the two bleeding sites —
A: That’s true.
Q: Is it possible that the bleeding could have started after the second surgery?
A: I doubt it.
Q: But is it possible?
A: It could be possible.
Q: I take it, if there was not a third bleeder at the time of the second surgery, you would not have had any criticisms of Dr. Allen or Dr. Taylor?
A: No.
Q: Is that correct?
A: That’s correct.
Q: As we sit here today —
A: There wouldn’t be a second surgery.
Q: — again, if there was not a bleeding site during that second surgery, that would have served no purpose to go up and look for it further?
A: It would have made sure that there wasn’t anything that we were — that he was missing. It’s what you do when you have to go back in.
These exchanges show that Dr. Hume examined the surgical notes from the procedures and the deposition of one defendant surgeon to conclude that the standard of care required that the surgeon determine the source of the excessive bleeding by making a longer incision than that performed by appellees to adequately examine the area. After pages and pages of this type of questioning about matters other than appellees’ failure to properly examine the patient, and only pages 94 through 117 of Dr. Hume’s deposition were attached to the motion, Dr. Hume’s somewhat sharp response in reiterating his criticism is understandable:
A: Well, no. My criticism is that he didn’t open that whole space up so that he could visualize what he was clamping. I mean, when you do that, you basically have skeletonized the vessels so that you know damn good and well that you’re grabbing onto the vessel and not a lot of tissue with it.
The majority does not explain how this testimony demonstrates that appellees'were entitled to judgment as a matter of law. By their reasoning, an examination of the evidence is unnecessary because once appellees alleged that the evidence was insufficient, appellant had to provide evidence sufficient to meet her statutory burden of proof ór her medical malpractice case would be dismissed on summary judgment. Until our supreme court holds that we have a different standard for summary judgment in medical malpractice cases, the majority’s approach is not the law. Because the majority’s approach clearly violates that standard, this case should be reversed and remanded on appellant’s first argument rendering the remaining arguments moot.
Accordingly, I dissent.
The statement in McAdams to which the majority refers reads as follows: “Without proof supporting the motion for summary judgment on the applicable standard or breach thereof, appellant was under no duty to rebut those two aspects of medical negligence.” 96 Ark. App. at 123, 239 S.W.3d at 20 (2007).
When evaluating an expert opinion regarding the causation aspect of the negligence claim, a trial court should be mindful of the following admonition emphasizing that proximate cause is a jury question: “Arkansas does not require any specific “magic words” with respect to expert opinions, and they are to be judged upon the entirety of the opinion, not validated or invalidated on the presence or lack of‘magic words.’ See Wackenhut Corp. v. Jones, 73 Ark.App. 158, 40 S.W.3d 333 (2001). Even in medical malpractice cases,proximate cause may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion may be fairly inferred. See Stecker v. First Commercial Trust Co., 331 Ark. 452, 962 S.W.2d 792 (1998).” Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754 (2004)).
Even Rule 701 of the Arkansas Rules of Evidence allowing the opinion of lay persons, rather than experts, has been recognized not as a rule against opinions, but as a rule that conditionally favors them. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997).