dissenting. I am aware that this case involves the loss of a seventeen-year-old dog. Common sense tells us that the loss of this pet was inevitable, perhaps even imminent. Despite this, our legislature has mandated the application of our medical malpractice laws to the practice of veterinarian medicine, precluding us from relying on the general premise that old dogs die. Furthermore, this case is before us on appeal from the grant of a summary judgment motion. Our procedures and case law dictate the trial court’s duty to review the pleadings, discovery responses, and evidence presented to determine whether the moving party is entitled to judgment as a matter of law. Our responsibility to review the trial court’s decision is no less onerous. Unfortunately, the majority’s analysis fails to fulfill this obligation.
In their motion for summary judgment, appellees stated that they were entitled to summary judgment because “[appellant’s] expert witness, Dr. Nafe, did not render an opinion as to the standard of care of veterinarians in the locality. Dr. Nafe also did not render an opinion as to whether the defendants breached the standard of care or whether [the dog] suffered injuries that would not have otherwise occurred.” In their reply to appellant’s response to their motion for summary judgement, appellees repeated their position that Dr. Nafe did not render an opinion and affirmatively stated that their “motion for summary judgment incorporates the deposition testimony of Dr. Nafe who testified that he did not have an opinion as to Dr. Faulk’s treatment of [the dog]. [Appellees’] motion for summary judgment requests judgment in favor of [appellees], because [appellant] has failed to produce an expert who will offer the requisite expert testimony.”
The first two paragraphs of appellees’ reply also accurately summarize the arguments presented on appeal regarding the claims of malpractice:
1. In the defendants’ motion for summary judgment, the defendants requested judgment in their favor on plaintiffs claims for negligence and medical malpractice because plaintiffs expert witness, Dr. Nafe, did not render an opinion as to the standard of care of veterinarians in the locality at his deposition. Dr. Nafe also did not render an opinion as to whether the defendants breached the standard of care or whether [plaintiff s/appellant’s dog] suffered injuries that would not have otherwise occurred.
2. In response to defendants’ motion for summary judgment, plaintiff merely states that “Dr. Nafe was not singled out as the only expert witness.” . . . However, plaintiff did not produce the testimony of an expert witness in response to defendant’s summary judgment motion that would establish the existence of the elements essential to plaintiff s case, and on which plaintiff bears the burden of proof at trial.
The majority correctly concludes that the appellees failed to offer proof of the applicable standard of care required of a veterinarian in the February 14, 2000 visit or affirmative proof that the veterinarian complied with the standard of care. That conclusion is consistent with appellees’ statement that Dr. Nafe did not render an opinion as to whether the appellees had breached the standard of care. However, the majority then holds that appellees did present sufficient proof to “challenge the proximate cause of appellant’s allegation of harm — that his dog was rendered unable to walk and ultimately died from a physical trauma inflicted at appellees’ office that day.” This holding directly contradicts ap-pellees’ admission that Dr. Nafe “did not render an opinion as to . . . whether [appellant’s] dog suffered injuries that would not have otherwise occurred.” The majority finds that appellant failed to meet proof with proof as to proximate cause, when appellees offered no proof for appellant to meet. In fact, appellees never moved for summary judgment on the issue of proximate cause.
Appellees clearly recognized that any argument regarding proximate cause must fail because they did not present expert proof regarding causation that was stated within a reasonable degree of medical certainty or probability. See Ford v. St. Paul Fire & Marine Ins. Co, 339 Ark. 434, 5 S.W.3d 460 (1999). Moreover, Dr. Nafe’s deposition testimony indicates that he was painfully aware of this inability to provide such certainty. Dr. Nafe testified regarding the reason the dog was presented to him:
[The dog] was paralyzed in all four legs, what we call tetraparesis. He had some other problems. You know, he was 16, so he had some other problems. But that’s not really why he was presented to me. So at that time he had neurological changes and reflex changes that suggested that his problem was in his low cervical spinal cord.
At that time he had some low neck pain. We radiographed the dog at that time. Radiographed the spin, the cervical spine while he was awake. And he was a little painful that day, so we didn’t get perfect radiographs. But we had enough to show that he had some marked changes between his sixth and seventh cervical vertebra and between his seventh cervical vertebra and his first thoracic vertebra. In addition to that, he had some generalized osteoporosis in his spine that was noted.
When asked if he could identify what the changes in the vertebra were, Dr. Nafe responded “that he probably had a problem called discospondylitis.” (Emphasis added.) Dr. Nafe then explained that a urine test can be used to identify the discospondylitis presence in “about 50 percent of the dogs that we think have active discospondylitis. . . Dr. Nafe performed a urine test, but the test did not culture the discospondylitis organism. Instead, the test “cultured a Staph, aureus” and Dr. Nafe explained that, in his practice, the Staphylococcus organism causes about fifty percent of the discospondylitis infections in the dogs he treats. With no positive culture for the discospondylitis infection, and able to correlate the presence of the Staphylococcus organism to only one-half of the dogs who have the discospondylitis infection, it is understandable as to why Dr. Nafe was reticent to say with any degree of medical certainty that the dog suffered from disco-spondylitis.
When appellees’ counsel asked Dr. Nafe to describe generally how a dog can get a Staphylococcus infection, not a question specifically directed to how this dog came into contact with the organism, Dr. Nafe responded, “Well, you know, again, it’s a little bit of supposition.” (Emphasis added.) Then, counsel for appellees asked the direct question: “And was there anything in the history given to you by Mr. McAdams or anything that you were able to find by other means to give you an opinion as to the cause of the Staph, infection in [the dog]?” Dr. Nafe’s response: “No.” His response was “no.” Nothing in the history and nothing he was able to determine by other means gave him an opinion as to the cause of the Staphylococcus infection. He did muse a bit about possible ways the bacteria may have entered the dog’s system. Nevertheless, he was clear that he had no opinion as to the cause of the Staphylococcus infection.
When asked if he was “able to formulate an opinion as to why [the dog’s] immune system was not able to resist the Staphylococcus infection, Dr. Nafe explained that “it’s a guesstimate. But overall, if you took a hundred [dogs], probably a 16-year-old dog probably isn’t going to have a great immune system.” (Emphasis added, again.)
In response to the question as to whether Dr. Nafe had determined what caused the dog’s paralysis, he stated, “Well, again, through supposition .... (Emphasis added.) Appellees’ counsel followed up with the following query: “So it was your suspicion that the problem with the dog’s paralysis was being caused by the discospondylitis that we talked about earlier, is that correct.” (Emphasis added.) Dr. Nafe confirmed that his suspicion was that the paralysis was secondary to the suspected discospondylitis infection. Dr. Nafe further explained that the definitive medical diagnostic procedure to identify a discospondylitis infection would be a mylegram and stated that this diagnostic procedure had never been performed.
Counsel for appellees also specifically asked Dr. Nafe if there was “anything from your observation or treatment of the dog to make you suspicious of an event or something happening to the dog on February 14th that would render him unable to walk?” (Emphasis added.) His response, “No, but I’m seeing the dog three weeks later. I mean, that would be impossible for me to know. . . . And there was sufficient evidence that there was a problem in the spinal cord — mean in the spine. No, but again, that’s impossible for me to say.” (Emphasis added.)
When counsel asked Dr. Nafe whether or not he could attribute the dog’s inability to walk to the dog’s eventual heart failure, identified by Dr. Nafe as cardiomyopathy, the doctor replied, “No. I mean, I don’t know that you can be definitive about that because nobody has really done much studies in geriatric animals with cardiomyopathy.” (Emphasis added.)
Dr. Nafe also cited a lack of clinical studies in answering whether he had an opinion as to whether the dog’s eventual kidney failure, secondary to the cardiomyopathy, was related to the discospondylitis: “Well, you know, I mean, again, I don’t know of any studies that have suggested any kind of relationship. What happens in older animals is they get one problem. And then it kind of, you know, leads to other problems, and not necessarily in a direct correlation.” (Emphasis added.) Dr. Nafe continued: “Now whether or not they were going to occur anyway, . . . I don’t know. . . . But my guess in this case would be that there is no direct link that I can see.” (Emphasis added.)
Given this evidence, I understand why appellees admit that Dr. Nafe could not negate appellant’s allegation regarding causation. The best appellees could say was that appellant could not bring his case to trial because the expert that appellees deposed did not have an opinion. Dr. Nafe did not give an opinion as to whether the spinal cord injury would have occurred even without the alleged choking because, as Dr. Nafe stated, his examination was too remote in time to make that determination. As Dr. Nafe said, the veterinarian to ask would have been Dr. Allen, another expert listed as an expert witness by appellant.
What I do not understand is how the majority determined that this testimony established that appellees were entitled to judgment as a matter of law. The majority’s position is even more perplexing given its premise that appellees proved as a matter of law that the dog died from an infection that had been present prior to the spinal cord injury and the spinal cord injury was due to the effects of infection and old age. Dr. Nafe testified that the dog suffered a “severe spinal cord injury” and that the spinal cord was “damaged severely.” The following exchange during Dr. Nafe’s testimony provides evidence that the underlying cause of the dog’s inability to walk, even the suspected infection, could be caused by trauma:
Q. Could the fact that this dog was walking at one period of time in the course of the day and then not walking at another period of time in the course of a day — could that be indicative of the sudden onset of this discospondylitis?
A. Yeah. Now when you have an animal that, say, is fairly normal, and then he goes down from the disco, then probably something has occurred. And it doesn’t have to be necessarily a lot because of the instability that becomes present. So, you know, it doesn’t necessarily require much.
And that area will be predisposed to injury because of the instability. So in other words, it could be caused by, you know, trauma of some type. The looseness there would predispose that dog to injury, or it can happen from the dog rolhng over to get up in the morning. I mean, it could be either direction.
Q. The sudden onset could be caused by trauma?
A. Trauma.
As the majority recites, “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 question of fact unanswered.” Rice v. Tanner, 363 Ark.79, 210 S.W.3d 860 (2005). We review the evidence in a light most favorable to the non-movant, resolving any doubts and inferences against the movant. Id.
Dr. Nafe acknowledged that his opinion could be nothing more than suspicion and supposition. The one thing he was unequivocal about was that this dog had suffered a severe spinal cord injury. He also acknowledged that it was possible that this dog’s sudden inability to walk could have been caused by trauma. Dr. Nafe testified that even the sudden onset of the dog’s underlying infection could have been caused by trauma. Given this evidence it is not surprising that appellees never argued that the expert testimony they relied upon left no material question of fact unanswered. Instead they argued that appellant had failed to “produce the testimony of an expert witness . . . that would establish the existence of the elements essential to the plaintiff s case.” Appellant had no duty to do so, and the majority has failed in its duty to properly review this case.
Accordingly, I dissent.