concurring. I concur with the majority that this case should be affirmed; however, I write separately because I would affirm the case on other grounds. This is a wrongful death action based in simple negligence. It is not a medical malpractice action. Arkansas Code Annotated Section 16-114-206 (Supp. 2003) is irrelevant.
The complaint asserts a right to damages because the Defendants sedated Young and then allowed him to leave and drive while still under the influence of medication. The facts show that Young had been similarly sedated on January 20, 1999, at the same clinic, and that on that date, he affirmed in writing on that occasion that he would not drive after the procedure. His wife was present and could have driven, but we now know that Young drove. Nine days later, Young again came to an appointment at the Center. This time he came alone. He lied when asked if he had arranged transportation. His car was sitting in the parking lot at that moment, and it is obvious that when Young arrived at the Center, he fully intended on driving himself after the procedure. On this occasion, he again affirmed in writing that he would not drive after the procedure. He again drove.
The allegations in the complaint do not support an action for medical malpractice. Negligence is alleged; however, “[a]ll negligent acts that occur at a doctor’s office do not give rise to an action for medical malpractice.” Howard v. Ozark Guidance Ctr., 326 Ark. 224, 227, 930 S.W.2d 341 (1996). “[T]o sustain an action against a medical-care provider for medical malpractice, the plaintiff must have suffered a medical injury.” McQuay v. Guntharp, 336 Ark. 534, 538, 986 S.W.2d 850 (1999). A medical injury is defined as “any adverse consequence arising out of or sustained in the course of professional services being rendered by a medical provider.” Ark. Code Ann. § 16-114-201(3) (1987). See also Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 177, 853 S.W.2d 877 (1993). In determining whether an injury is an adverse consequence arising out of or sustained in the course of professional- services being rendered by a medical provider, it must be determined whether Young’s death was the “result of a doctor’s treatment or order.” Bailey v. Rose Care Ctr., 307 Ark. 14, 19, 817 S.W.2d 412 (1991).
Young knowingly came to the Center with the intent of driving after his procedure, in spite of being told it was dangerous and in spite of having affirmed in writing before being sedated that he would not do so. Young’s accident did not result from a doctor’s treatment or order; therefore, this is not a medical malpractice action. It is a simple negligence action.
The complaint makes no mention whatever of the treatment or orders given by Dr. Debra Morrison regarding the procedure Young underwent, but rather the complaint asserts that the Defendants had a duty to assure “that patients in general, or Mr. Young in particular, would not leave the Gastroenterology Center while sedated without reliable adult transportation available to take him from the Gastro-Intestinal Center to a safe place.” What is at issue is the Defendants’ duty to Young regarding his departure from the Center. He was not discharged from the Center; rather, he left of his own accord. Certainly the Defendants could not hold Young against his will. The circuit court found that there was no duty to Young under these facts and granted the summary judgment motion.
The question of whether a duty is owed is always a question of law and never one for the jury. Wheeler v. Phillips Dev. Corp., 329 Ark. 354, 947 S.W.2d 380 (1997). The Center was under a duty of ordinary care to provide for Young as his condition reasonably required. Regions Bank & Trust v. Stone County Nursing Facility, Inc., 345 Ark. 555, 49 S.W.3d 107 (2001); Dollins v. Hartford Accident & Indem. Co., 252 Ark. 13, 477 S.W.2d 179 (1972). In Dollins, supra, the issue was whether there was negligence in failing to watch over a patient known to be “confused” who was later found injured on the floor at the foot of the bed when left unattended. This court stated that it was “the duty of the hospital to see that the patient had such attention as her condition apparently made necessary.” Dollins, 252 Ark. at 18. The care required in Dollins was “that degree of care proportionate to the danger apprehended, judged by the condition of affairs before the accident occurred.” Id. In the case before us, Young was instructed in the course of two medical procedures that he was not to drive after being sedated. He signed forms affirming this on both occasions. On the first occasion, after promising to have his wife drive, Young drove. On the second occasion, Young drove himself to the Center and lied that Trundle Smith would be picking him up. Because Young lied, he was allowed to undergo the procedure. Young was an adult and was told not to drive. The warning not to drive, especially where it is reinforced by having the patient sign a paper affirming he or she will not drive, is proportionate to the danger.
After the procedure, it was learned that Young intended to drive. Nurse Diane Brown repeatedly asked Young not to drive. She made phone calls to try and get him a ride. When no one showed up to drive him, Brown offered to wait with Young at the Center until the medication wore off. Still, Young went on and drove his car to another medical appointment. Brown went well beyond what could be reasonably required. Short of tackling and forcibly restraining Young, which would not be legally permissible, there was nothing more that Brown or the Center could do. Even if a patient shows up with a driver at the time of the appointment, how is the Center to know that the driver will still be there after the procedure is completed and the patient is ready to be released? The only way to assure that no patient drives would be for the Center to acquire cars and hire drivers to take patients home. That would hardly be reasonable. The Center is not an insurer of its patients’ safety. Dollins, supra. Young acted recklessly in ignoring the advice he was given and suffered the consequences. The circuit court correctly found no duty to insure that no patient drives after the procedure.
Gunter, J., joins.