                                Cite as 2017 Ark. App. 421


                 ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                     No. CV-16-1033

                                                  Opinion Delivered   September 6, 2017

 CAROLYN THOMAS,                                  APPEAL FROM THE PULASKI
 ADMINISTRATRIX OF THE ESTATE                     COUNTY CIRCUIT COURT,
 OF ALFRED THOMAS, SR., DECEASED                  SIXTH DIVISION
                       APPELLANT                  [NO. 60CV-13-3438]

 V.
                                 HONORABLE TIMOTHY DAVIS
 CAROL C. MEADORS, M.D., AND     FOX, JUDGE
 LITTLE ROCK ANESTHESIA
 SERVICES, PLLC
                       APPELLEES AFFIRMED


                          BRANDON J. HARRISON, Judge

        Carolyn Thomas, administratrix of the estate of Alfred Thomas, Sr., appeals the grant

of summary judgment in favor of Dr. Carol Meadors and Little Rock Anesthesia Services,

PLLC.       Thomas argues that she met her burden of meeting proof with proof and

demonstrated a genuine issue of material fact as to causation. We disagree and affirm.

        Alfred Thomas, Sr., underwent a revascularization procedure on 29 August 2011.

After the surgery, Mr. Thomas exhibited cardiac instability and was admitted to the intensive

care unit. He died three days later; the cause of death was listed as cardiogenic shock. 1




       Cardiogenic shock is defined as “shock resulting from primary failure of the heart in
        1

its pumping function.” Dorland’s Illustrated Medical Dictionary 1691 (30th ed. 2003).

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       In a complaint filed in August 2013 and an amended complaint filed in January 2016,

Carolyn Thomas, as administratrix of the estate of Alfred Thomas, alleged that the medical

negligence of Dr. Carol Meadors and Little Rock Anesthesia Services, PLLC (collectively

“Meadors”), was the proximate cause of Mr. Thomas’s death. 2             Thomas alleged that

Meadors (1) failed to properly and adequately perform a presurgical history and physical

examination of Mr. Thomas, and (2) failed to fully acquaint herself with Mr. Thomas’s

medical history or to appreciate the seriousness of Mr. Thomas’s ongoing heart conditions.

According to the complaint, Mr. Thomas had multiple known comorbidities, including a

history of ischemic heart disease, a history of congestive heart failure, decompensated heart

failure, severe vascular disease, diabetes, atrial fibrillation, and a history of stroke. Thomas

alleged that Meadors “knew or should have known that subjecting a patient with multiple

sever[e] systemic diseases that were a constant threat to his life to prolonged anesthesia

induced unconsciousness during a high risk invasive peripheral vascular surgery would pose

an eminent threat to Thomas’[s] life.” The complaint also alleged that Mr. Thomas

experienced a blood pressure “crash” immediately after the general anesthesia had been

administered, that a discussion on whether to proceed with the surgery lasted twenty-five

mintues, and that this failure to act in a timely manner was negligence.

       In April 2016, Meadors moved for summary judgment and identified the following

undisputed facts: (1) Meadors induced Mr. Thomas’s anesthesia on 29 August 2011; (2)


       2
        Thomas also named Dr. Frederick Meadors and Cardiovascular Surgeons, PA, as
defendants in her complaint and amended complaint. Cardiovascular Surgeons, PA, was
granted summary judgment in June 2016, and a jury found no negligence on the part of Dr.
Frederick Meadors. Thomas did not appeal either of those judgments.

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immediately following induction, Mr. Thomas experienced an acute decompensation (drop

in blood pressure); (3) the doctors inserted a Swan-Ganz catheter and began treating Mr.

Thomas with vasopressors to increase his blood pressure; (4) Mr. Thomas’s blood pressure

eventually stabilized, and the doctors chose to proceed with the planned procedure.

Meadors explained that in the complaint and amended complaint, Thomas had two primary

criticisms of Mr. Thomas’s medical care: (1) that Meadors failed to conduct an adequate

physical examination of Mr. Thomas prior to the August 29 procedure and (2) that Meadors

negligently failed to terminate the revascularization procedure after Mr. Thomas had

experienced the acute drop in blood pressure immediately following the induction of

anesthesia.   However, Meadors asserted, neither of Thomas’s identified experts, Dr.

Timothy Beacham, a board-certified anesthesiologist, and Dr. Morton Rinder, a

cardiologist, could state to a reasonable degree of medical certainty that this alleged

negligence proximately caused Mr. Thomas’s death. And without a qualified causation

opinion, Meadors argued, Thomas could not maintain a prima facie claim for medical

negligence, and Meadors was entitled to summary judgment as a matter of law. In support,

Meadors cited the following excerpts from the doctors’ depositions.

       During Dr. Beacham’s deposition on 5 April 2016, the following exchanges

occurred:

       Q:     [A]re you going to testify that had any kind of different physical
              assessment or different preoperative course been taken, that it would
              have changed the outcome in this case in any way?

       A:     No, I will not do that.

       ....

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Q:     But you can’t say, to a reasonable degree of medical certainty, that any
       of—doing these things that you say she failed to do would have
       changed anything?

A:     Correct.

....

Q:     Both Plaintiff’s cardiologist and cardiovascular surgeon have testified
       that they can’t say, to a reasonable degree of medical certainty, that
       after induction, if Mr. Thomas had not undergone the remainder of
       the procedure, whether or not he would have still suffered the same
       injury.

A:     Sure.

Q:     Is that your testimony, as well, that you can’t say, to a reasonable
       degree of medical certainty, whether or not he would have sustained
       the same injury after induction?

A:     Right. . . . [T]here’s a degree of medical certainty that this patient
       would have woken up. Now, what condition the patient would have
       been in, I cannot say any further than that.

....

Q:     You have mentioned several times this evening that upon the
       placement of the Swan-Ganz catheter and the recognition of the
       pulmonary artery pressure, you believe that Mr. Thomas would have
       woken up, correct?

A:     If the case had been stopped at that point?

Q:     Yes, sir.

A:     Based on information compared to previous records, yes.

Q:     Now, can you testify, to a reasonable degree of medical certainty, that
       Mr. Thomas would have been able to come off the ventilator?

A:     I cannot.



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Likewise, during Dr. Rinder’s deposition on 18 March 2016, the following exchanges

occurred:

       Q:     Can you state to a reasonable degree of medical certainty or probability
              that had those things [a preoperative physical examination] been done
              for Mr. Thomas, he would not have had the episode that occurred at
              induction in this case?

       A:     I think he was less likely to.

       Q:     Okay. Can you state to a reasonable degree of medical probability that
              he would not have had the same event?

       A:     I cannot.

       ....

       Q:     You mentioned this, and I think I might be getting on to paragraph 7
              here, but after his decompensation during the surgery, you mentioned
              that they continued on obviously with the surgery, correct?

       A:     Correct.

       Q:     And is it your opinion that they should have halted the procedure at
              that point?

       A:     Yes.

       Q:     Is it your opinion that Mr. Thomas would have been able to wean off
              the ventilator had they halted the procedure at that point?

       A:     I don’t know. . . . I think he would have had a better chance of
              getting off the ventilator had they stopped the surgery earlier.

       Meadors noted that, under the Arkansas Medical Malpractice Act, Thomas is

required to show “[b]y means of expert testimony provided only by a qualified medical

expert that as a proximate result thereof the injured person suffered injuries that would not

otherwise have occurred.” Ark. Code Ann. § 16-114-206(a)(3) (Repl. 2016). Meadors



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also acknowledged that although causation is ordinarily an issue for the jury, it becomes a

question of law when reasonable minds cannot differ. Neal v. Sparks Reg’l Med. Ctr., 2012

Ark. 328, 422 S.W.3d 116. In this case, Meadors argued, both Dr. Beacham and Dr. Rinder

were unable to state, to a reasonable degree of medical certainty, that Meadors’s alleged

negligence proximately caused Mr. Thomas’s death, so Thomas had failed to meet the

requirement of § 16-114-206(a)(3).

       Thomas responded by contending that “Dr. Timothy Beacham and Dr. Alan

Schneider [a defense expert] both state to a reasonable degree of medical certainty that had

the surgical procedure been stopped immediately after induction that the decedent would

have ‘awakened’ and that there is no known medical reason he could not have survived.”

In support, Thomas cites deposition testimony from Dr. Schneider given on 6 April 2016:

       Q:     But can we agree in terms of risk, and we remove the risk of the
              anesthetic agent and the stress of the surgery from his cardiovascular
              system, it, to a reasonable degree of medical certainty, should have
              increased his survivability?

       A:     I think that’s a fair statement.

       ....

       Q:     What causes—you believe that he went into cardiogenic shock after
              the procedure was completed?

       A:     Well, while his heart tolerated the procedure, afterwards they were not
              able to maintain his blood pressure, so he had further deterior—
              wherever his heart was during the procedure, deteriorated further after
              the procedure.

       Q:     You mean after the surgical procedure has concluded, is your opinion
              is when he developed cardiogenic shock?

       A:     He was not in cardiogenic shock intraoperatively.

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Thomas interpreted this testimony to mean that it was Dr. Schneider’s opinion that “the

risks to Thomas’[s] survivability increased by continuing the surgical procedure and his

chances for survival decreased by the Defendants’ failure to stop the procedure after

induction of anesthesia and prior to incision.” Thomas also cited an affidavit filed by Dr.

Beacham on 16 May 2016, forty-one days after his deposition, in which Dr. Beacham

declared the following:

       12.     The standard of care for an anesthesiologist performing anethesia
       services on a patient in an elective procedure, whose blood pressure decreases
       to a level that is below the level required for adequate organ perfusion levels
       without immediate correction in response to vasopressors, given Mr.
       Thomas’[s] ASA IV physical, is to stop the elective procedure.

       13.    Further, the standard of care for an anesthesiologist performing
       anesthesia services on a patient with an ASA IV physical status in an elective
       procedure, upon discovering that the patient has critically severe hypertension
       with a swan ganz catheter measurement, is to stop the surgical procedure.

       14.    Dr. Caroll [sic] Meadors, M.D.[’s] failure to stop the elective
       revascularization procedure on Mr. Thomas prior to incision, given his ASA
       IV physical status, when his blood pressure dropped below levels required for
       adequate organ perfusion and the patient suffering with severe pulmonary
       hypertension, and given the uncertainty of the patient’s physical ability to
       withstand the stress of anesthesia and the surgical procedure, was below the
       standard of care.

       15.    Dr. Carroll [sic] Meadors, M.D.[’s] failure to stop the elective
       revascularization procedure after discovering that Mr. Thomas had critically
       severe pulmonary hypertension after the placement of the swan ganz catheter,
       was below the standard of care.

       16.    The failure of Dr. Carroll [sic] Meadors, M.D. to stop the elective
       revascularization procedure after Mr. Thomas’[s] blood pressure dropped
       below levels required for adequate organ perfusion and/or the failure to stop
       the elective revascularization procedure after discovering that Mr. Thomas
       had critically severe hypertension, lead [sic] to the cardiogenic shock, which
       caused Mr. Thomas’[s] death.

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       17.     Had Dr. Carol Meadors, M.D. stopped the administration of the
       anesthetic agents immediately after stabilizing Mr. Thomas’[s] blood pressure
       and not proceeded with the revascularization surgery, Mr. Thomas[’s]
       probability of awakened [sic] from the induction of anesthesia was highly
       likely to a degree of medical certainty.

       18.    Based on my review of the medical records, I am unaware of any
       medical reason Mr. Thomas should not have survived the induction of
       anesthesia and awakened if [the] procedure had been cancelled prior to
       surgical intervention.

       Finally, Thomas again cited deposition testimony from Dr. Schneider, in which he

said it was “more likely” that Mr. Thomas would have awakened if the procedure had been

stopped after induction. When asked if there was any indication that Mr. Thomas would

be off the ventilator, Dr. Schneider responded,

       No. I’m saying that he would have awakened. The drugs would have worn
       off. In fact, we don’t know, I mean, we really at this point don’t know the—
       if that induction of anesthesia was enough to tip him over? Is it the continued
       operation that was enough or at what point—or is it—or was he tolerating
       everything even till the very end and his cardiogenic shock happened
       postoperatively. I mean, I think at this point it’s tough to determine.

Thomas concluded that

       [t]he point of both doctors’ testimony is that had the procedure stopped,
       Thomas would have awakened, to a reasonable degree of medical certainty,
       and his chances of survival whether on the ventilator or not, were increased
       as opposed to his chance of survivability being decreased by continuing the
       procedure following induction. Plaintiff need not prove, as an essential
       element of their claim for medical negligence how long Thomas’ [sic] would
       have survived once the procedure continued, as Thomas died without
       awakening.

       In reply, Meadors contended that Thomas was essentially asking the circuit court to

deny summary judgment because there is a question of fact as to whether Mr. Thomas

“would have ‘woken up’ had the procedure been stopped after induction.” However,

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Meadors argued, Mr. Thomas did, in fact, wake up from anesthesia long enough to be

extubated and breathe on his own, but had to later be reintubated due to his heart failure.

Meadors cited the deposition testimony of Dr. Kim Klancke:

       Q:     [O]nce he’s stabilized, after the induction, and—and I call it a “crash,”
              but the dip in his blood pressure once they stabilize him, would you
              agree with me that had they stopped the procedure, it’s more likely
              than not that the patient could you [sic] have been awakened?

       [Objection to form]

       A:     I think the patient was awake, you know, at the end of the procedure,
              or at least they extubated the patient and was breathing on—on his
              own. He had just become unstable from a cardiac perspective and had
              pulmonary edema and he had to be re-intubated. . . . [B]ut I don’t
              think “waking up” has anything to do with it, necessarily.

       ....

       Q:     [B]efore the procedure was over, to a reasonable degree of medical
              certainty, when the procedure was interrupted, is it your opinion that
              the patient would have awakened?

      A:      My opinion is he would have done exactly what he did, regardless of
              the—of the surgery. I think if they’d have stopped the—the
              procedure, taken him up to the ICU on a ventilator and tried to
              extubate him a few hours later, I think he’d have exactly the same
              clinical course no matter what he did.

Meadors argued that Thomas had failed to meet proof with proof and instead relied on a

“loss of chance” theory that is not recognized under Arkansas law. Meadors asserted that

Thomas had mischaracterized Dr. Schneider’s opinion and improperly relied on a

supplemental affidavit executed by Dr. Beacham. Meadors also argued that, regardless of

Dr. Beacham’s affidavit, Thomas had not established that, but for the alleged breach, Mr.

Thomas would have lived. Instead, Meadors contended, Thomas used terms such as



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“survivability” and “awakening” to confuse the ultimate issue of causation and asserted a

“loss of chance” doctrine that has not been adopted into Arkansas law. See Holt v. Wagner,

344 Ark. 691, 43 S.W.3d 128 (2001) (acknowledging the existence of the lost-chance theory

of recovery, but declining to adopt the theory at that time).

       At the commencement of a pretrial hearing on 6 June 2016, Meadors’s motion for

summary judgment was summarily granted by the circuit court. Thomas has now timely

appealed to this court.

       In reviewing a circuit court’s grant of summary judgment, we need only decide if

the granting of the motion was appropriate based on whether the evidentiary items

presented by the moving party in support of the motion left a material question of fact

unanswered. Edwards v. MSC Pipeline, LLC, 2013 Ark. App. 165. The burden of sustaining

a motion for summary judgment is always the responsibility of the moving party. Id. All

proof submitted must be viewed in a light most favorable to the party resisting the motion,

and any doubts and inferences must be resolved against the moving party. Id. 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. Cash v. Lim, 322 Ark. 359, 908 S.W.2d

655 (1995). However, once a moving party establishes a prima facie entitlement to the

summary judgment by affidavits, depositions, or other supporting documents, the opposing

party must meet proof with proof and demonstrate the existence of a material issue of fact.

Id. When a motion for summary judgment is made and supported, an adverse party may

not rest on the mere allegations or denials of its pleadings, but its response, by affidavits or




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as otherwise provided, must set forth specific facts showing that there is a genuine issue for

trial. Ark. R. Civ. P. 56 (2016).

       To establish a prima facie case of negligence, the plaintiff must demonstrate that the

defendant breached a standard of care, that damages were sustained, and that the defendant’s

actions were a proximate cause of those damages. Union Pac. R.R. Co. v. Sharp, 330 Ark.

174, 952 S.W.2d 658 (1997). Proximate causation is an essential element for a cause of

action in negligence. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). Proximate

cause is that which in a natural and continuous sequence, unbroken by any efficient

intervening cause, produces the injury and without which the result would not have

occurred. Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754 (2004). This

traditional tort standard requires proof that “but for” the tortfeasor’s negligence, the

plaintiff’s injury or death would not have occurred. Dodd v. Sparks Reg’l Med. Ctr., 90 Ark.

App. 191, 204 S.W.3d 579 (2005).

       Although proximate causation is usually a question of fact for a jury, where reasonable

minds cannot differ, a question of law is presented for determination by the court. Cragar

v. Jones, 280 Ark. 549, 660 S.W.2d 168 (1983). In medical-injury cases, it is not enough

for an expert to opine that there was negligence that was the proximate cause of the alleged

damages. Kilgore, supra. The opinion must be stated within a reasonable degree of medical

certainty. Id. When a party cannot present proof on an essential element of his claim, the

moving party is entitled to summary judgment as a matter of law. Sanders v. Banks, 309

Ark. 375, 830 S.W.2d 861 (1992).




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          For her first point on appeal, Thomas argues that the circuit court erred in granting

summary judgment because she had established a prima facie claim for medical negligence.

She urges that her complaint and the opinions of her two experts, Dr. Beacham and Dr.

Rinder, established the applicable standard of care, Meadors’s failure to act in accordance

with that standard, and that such failure was the proximate cause of Alfred Thomas’s death.

          But the inquiry on appeal is not whether Thomas established a prima facie case of

medical negligence but whether Meadors established a prima facie entitlement to summary

judgment in her motion. Thomas acknowledges the appropriate standard in her brief and

in her second point on appeal argues that she met proof with proof in responding to

Meadors’s motion for summary judgment and demonstrated the existence of a material issue

of fact regarding causation.

          On this point, Thomas cites Dr. Beacham’s affidavit and argues that according to Dr.

Beacham (1) it was below the standard of care for Meadors to proceed with the surgery after

Mr. Thomas experienced an acute decompensation after induction of anesthesia; and (2) if

the procedure had been halted, Mr. Thomas’s “probability of awaken[ing] from the

induction of anesthesia was highly likely to a degree of medical certainty.” She also cites an

affidavit filed by Dr. Rinder on 20 May 2016 (after Thomas’s response to the motion for

summary judgment had been filed) and specifically to paragraph 24 of the affidavit, which

states:

          The failure of Dr. Carol Meadors, to stop the elective revascularization
          procedure after Mr. Thomas’[s] blood pressure dropped below levels required
          for adequate organ perfusion and/or the failure to stop the elective
          revascularization procedure after discovering that Mr. Thomas had critically



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       severe hypertension, contributed to the cardiogenic shock, which caused Mr.
       Thomas’[s] death.

       In response, Meadors argues that the circuit court did not err in granting summary

judgment because Thomas failed on her burden of proof. Neither of her expert witnesses

could opine to a reasonable degree of medical certainty that Mr. Thomas would have lived

but for the alleged negligence of Meadors. Instead, Dr. Rinder stated that he did not know

if Mr. Thomas could have been weaned off the ventilator, said that any opinion on the

subject was “speculative,” and stated only that Mr. Thomas “would have had a better chance

of getting off the ventilator.” Likewise, Dr. Beacham opined that if the surgery had been

halted, Mr. Thomas “should have woken up,” but he could not testify that the ultimate

outcome would have been any different. Meadors contends, as she did below, that the issue

is not whether Mr. Thomas would have awakened from anesthesia, which he did, but

whether he would have ultimately survived, and that no expert witness could provide such

an opinion.

       We agree that Thomas has failed to meet proof with proof on the issue of causation.

The expert testimony cited by Thomas fails to clearly articulate that Meadors’s negligence

was the proximate cause of Mr. Thomas’s death; instead, Dr. Beacham opined that Mr.

Thomas’s awakening from the anesthesia was more likely if the surgery had been stopped,

but the issue is whether he would have lived, not whether he would have “awakened.” Dr.

Rinder opined that continuing with the procedure “contributed to the cardiogenic shock,”

but the presence of a contributing factor is not synonymous with proximate cause. See Neal,




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supra. We conclude that Thomas’s expert testimony failed to establish proximate cause and

was therefore insufficient to defeat summary judgment.

       Affirmed.

       GRUBER, C.J., and ABRAMSON, J., agree.

       McKissic & Associates, PLLC, by: Gene E. McKissic, Sr., and Jackie B. Harris, for

appellant.

       Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Michelle L. Browning, Jason

Browning, and Graham Talley; and Anderson, Murphy & Hopkins, L.L.P., by: Mark D.

Wankum, for appellees Carol Crittenden Meadors, M.D., and Little Rock Anesthesia

Services, P.L.L.C.




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