Parkerson v. Arthur
No. CA00-1110 (Ark. Ct. App. June 27, 2001)

Two neurosurgeons practicing at an Arkansas clinic performed an anterior cervical diskectomy and fusion surgery on a patient. During the procedure, the surgeons used an artificial graft material called "Orthoblock," which had neither been developed by its manufacturer nor approved by the FDA for this purpose. Following the procedure, the patient experienced discomfort in her arm and shoulder and was diagnosed with postoperative cervical nerve root swelling and pain. The patient alleged that she was never informed of the risks and hazards of Orthoblock -- and in fact didn't even know that this substance was being used. She therefore claimed that she never provided an appropriate informed consent for the procedure and that the neurosurgeons committed medical negligence, battery, the tort of outrage, and fraud as a result.

The neurosurgeons moved for summary judgment on all counts and provided an expert opinion from another neurosurgeon in the region. In response, the patient submitted deposition transcripts and affidavits from a number of physicians who were presented as expert witnesses. The trial court excluded all of the patient's expert testimony evidence on various grounds and granted the neurosurgeons' motion for summary judgment. On appeal, the Court affirmed most of the trial court's rulings excluding the patient's expert testimony, as well as the dismissals of the claims for medical negligence, outrage, and fraud. However, the Court of Appeals held that the testimony of the patient's father -- a general practitioner for 50 years -- was appropriate expert testimony on the issue of informed consent in this case and should not have been excluded. Further, the court held that the testimony of the patient's father was also sufficient to support the patient's claim of battery and prevent summary judgment. The Court of Appeals thus reversed and remanded on this claim. Thanks Dad!