Dooley v. Cap-Care of Arkansas, Inc. (338 F. Supp. 2d 962, 2004)

OPINION AND ORDER

HOLMES, District Judge.

Margarette Pannell Dooley alleges that her father, John Floyd Pannell, suffered injury and death as a result of negligent care and treatment that he received while he was a resident of Crestpark Retirement Inn of Forrest City (“Crestpark”). Crest-park is a nursing home owned by Cap-Care of Arkansas, Inc. (“Cap-Care”) and operated by Evergreene Properties of North Carolina, L.L.C. (“Evergreene”). Crestpark is located in Forrest City, Arkansas, a city located approximately 45-50 miles west of Memphis, Tennessee. Forrest City has a population of almost 15,000, according to the 2000 Census. See U.S. Census Bureau, 2000 Census of Population and Housing, Population and Housing Unit Counts, PHC-3-5, Arkansas.

Pannell was admitted to Crestpark on July 19, 1999. He died on February 12, 2000. One of Dooley’s experts, Gerald Gowitt, M.D., states that Pannell’s death was caused by the stress of pressure sores and associated infections. Defendants’ brief states that Pannell “died from pneumonia which probably resulted from multiple decubitus ulcers.” Testimony from Dooley’s witnesses also indicates that Crestpark lacked adequate supplies and was often understaffed, that Pannell often was not turned at appropriate intervals and was frequently found soiled or wet, and that, during the time of his stay at Crestpark, Pannell suffered dehydration and malnutrition.

Cap-Care and Evergreene have moved for summary judgment. Both Defendants argue that Dooley cannot meet her burden of proving the elements of a medical malpractice action, as defined in Ark.Code Ann. § 16-114-206, because she lacks the expert testimony necessary to prove the degree of skill and learning ordinarily possessed and used by long-term care facilities in Forrest City, Arkansas, or a similar locality. Cap-Care separately contends that it did not owe Pannell a duty in either tort or contract because it merely leased the property to Evergreene and neither exercised nor had the authority to exercise control over the actions alleged in Dooley’s complaint.

A court should grant summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that thgre is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion and identifying the portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir.2003). When the moving party has carried its burden under Rule 56(c), the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1985) (quoting Fed.R.Civ.P. 56(c)). The non-moving party sustains this burden by showing that “there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505. When a non-moving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In deciding a motion for summary judgment, the court must view the facts and inferences in the light most favorable to the party opposing summary judgment. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 841 (8th Cir.2001). If the evidence would allow a reasonable jury to return a verdict for th^ non-moving party, summary judgment should be denied. Derickson v. Fidelity Life Assoc., 77 F.3d 263, 264 (8th Cir.1996).

At the time in question, the Arkansas Medical Malpractice Act stated that in any action for medical injury the plaintiff had the burden of proving: “1) 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 locality in which he practices or in a similar locality; 2) that the medical care provider failed to act in accordance with that standard; and 3) that as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.” Ark.Code. Ann. § 16-114-206(a). The statutory definition of “medical care provider” includes a nursing home engaged in providing professional medical care or services. Ark.Code Ann. § 16-114-201(2). Arkansas law, which is applicable here, requires that the standard of care in a medical malpractice case be established by expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge. Hall v. Arthur, 141 F.3d 844, 847 (8th Cir.1998); DeWitt v. Brown, 669 F.2d 516, 520 (8th Cir.1982); Jeanes v. Milner, 428 F.2d 598, 601 (8th Cir.1970).

The issue of whether Dooley can establish the elements of a medical malpractice case concerns the proposed testimony of Susan Gilbert, R.N., who apparently is the witness upon whom Dooley relies to provide the required expert testimony. Gilbert is a nurse practitioner in Olive Branch, Mississippi. Olive Branch is in northern Mississippi, some 15 miles southeast of Memphis, Tennessee. Its population is slightly more than 21,000, according to the 2000 Census. See U.S. Census Bureau at PHC-3-26, Mississippi. In her deposition, Gilbert testified that she graduated from Mississippi University for Women “with a master’s degree in nursing and as a family nurse practitioner.” She has worked as a nurse and as a director of nurses in facilities in Alabama and Memphis, Tennessee. She also has practiced in Olive Branch. She has reviewed thirty-five to forty-five cases as a consultant, always for the plaintiff. The transcript of Gilbert’s deposition contains the following questions and answers:

Q. Now, are you familiar with the standards as far as long-term facility care that exist in St. Francis County, Arkansas?

I’m familiar with the Arkansas regulations.

Do you know what the standard of care in a nursing home, long-term facility is in eastern Arkansas?

And tell me how you are familiar with that. <©

Well, I’m familiar with that through the federal guidelines, which are regulating the standards in nursing homes across the nation.

And I understand ... you said that ... you take charts and you look at them with the federal guidelines on nursing home care in mind. &

Yes, sir.