dissenting. Negligence law is based on the premise that we generally owe others a duty to exercise reasonable care as we go about our daily lives. In order to establish a useable legal standard for negligence, courts developed the common law concept of the reasonable person — that paradigm of virtue who sets the bar by always exercising reasonable care. The required “standard of care” undermost circumstances is the level of care our reasonable person would exercise. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32, at p. 173-75 (5th ed. 1984); Morgan v. Cockrell, 173 Ark. 910, 294 S.W. 44 (1927). Whether a particular defendant has exercised reasonable care is usually a question for the jury, which is instructed to compare the defendant’s actions with those of the reasonable person under like circumstances. Brown v. McDonald, 224 Ark. 1, 271 S.W.2d 769 (1954); Arkansas Power & Light Co. v. Hoover, 182 Ark. 1065, 34 S.W.2d 464 (1931).
For various reasons of law and public policy, courts and legislatures sometimes take part of this deliberation away from the jury by deciding that, under certain circumstances, the reasonable person does or does not have a duty to act in a certain way. For example, it is well established in most jurisdictions that a person has no duty to warn or rescue another unless a special relationship between the two creates such a duty. Courts and legislatures have also created specialized duties of care under certain circumstances. For example, tort law often requires a person with expertise in a particular field to act as a reasonable person under the circumstance of that expert status. Such is the situation here.
In this case, there is no question that appellees, who are providers of outpatient medical care, owe a duty of care to their patients. Appellees offer a service where they intentionally impair patients with drugs and perform medical procedures, knowing that most or all of those patients are going to leave the outpatient medical center before they return to normal functioning. This all happens in the context of a doctor-patient relationship. Undoubtedly, there is a duty of care. The difficult question is the exact nature of that duty under the circumstances of the case. In tort law, the nature of any given duty is defined by the applicable standard of care.
The Arkansas General Assembly enacted the appropriate standard of care that is to be applied in medical malpractice actions. The statute requires that “when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge,” an expert or experts must provide testimony to help the jury decide whether the defendant breached, or “failed to act in accordance with” the proper standard of care. Ark. Code Ann.. § 16-114-206(a), (a)(2) (Supp. 2003); National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). The expert testimony must be given by a “medical care provider of the same specialty as the defendant, [with] 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 same or a similar community to that in which the defendant practices. Ark. Code Ann. § 16-114-206(a)(1) (Supp. 2003).
This case involves questions about duty of care under two distinct sets of circumstances: before and after sedation for an outpatient procedure. The majority opinion conflates these considerations and summarily holds that a medical care provider has the duty to warn an outpatient that he should not drive after a procedure that will leave him temporarily impaired and that the duty extends no further. In doing so, the majority overrides the procedure adopted by the legislature in § 16-114-206 for determining the appropriate medical standard of care. The legislature has specifically provided that, in a medical malpractice case involving matters outside common knowledge, the standard of care required under a particular set of facts is to be established with the help of expert testimony. Yet, under the majority’s analysis, this court takes it upon itself to determine that, under the facts of this case, the Gastro-Intestinal Center and Nurse Brown did not breach the standard of care required by the statute when they sedated Mr. Young without confirming that he had a driver or when they allowed him to leave and drive away in an impaired condition. Thus, the majority’s decision prematurely cuts off a decision that the legislature has expressly given to the jury.
I am particularly concerned about the majority’s holding that, as a matter of law, an outpatient medical care provider’s pre-sedation duty extends no further than to warn. At that point, the patient is not yet impaired, but the provider knows that, if sedated, the patient will almost certainly leave the premises in an impaired condition. Admittedly, the confirmation of the presence of a responsible adult driver represents some burden to the medical care provider. To meet that burden may be reasonable under the circumstances.1 That is one of the questions the General Assembly has given to the jury.
The question of a post-sedation duty presents other issues. In this case, Mr. Young was able to articulate his desire to leave by himself. He left the Gastro-Intestinal Center on his own two feet and drove away. Should the result be the same if a sedated patient literally staggers out of an outpatient clinic, falls down the stairs and severely injures himself? What if the impaired person drives away and, within a few miles, runs off the road and kills a third party? These are cases that, under the majority’s decision today, won’t survive summary judgment. The jury won’t get the chance to decide whether, under the General Assembly’s guidelines, the defendant met the requisite standard of care.
In any event, as the moving party, appellees were required to show what the requisite standard of care was under the surrounding circumstances and show that they conformed to that standard. Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995) (citing Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986)). Until that is done, the burden of supplying acceptable proof does not shift to the nonmoving party. Here, appellees failed to offer evidence as to the standard of care under Ark. Code Ann. § 16-114-206. Therefore, appellant was not required to present evidence of the requisite standard of care in order to avoid summary judgement.
Because I believe the trial court erred in granting summary judgment and this case should be reversed and remanded for trial, I respectfully dissent.
The Gastro-Intestinal Center’s internal policies and procedures support an argument that it is not an unreasonable burden to do more than warn a patient not to drive after sedation. The Center requires its staff to confirm the name of a responsible adult driver and obtain a contact phone number if the driver leaves the Center during the procedure.