Reggans v. Schlesinger

687 S.W.3d 387

2024 Ark. App. 227

Sherri REGGANS, Appellant

v.Scott SCHLESINGER, MD; and Freeway Surgery Center, LLC, Appellees

No. CV-22-396

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered April 3, 2024

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION [NO. 60CV-20-6340], HONORABLE MACKIE M. PIERCE, JUDGE

Maximillan R. X. Sprinkle, Little Rock, for appellant.

Hall Booth Smith, P.C., by: Jason B. Hendren,Rogers, and Joseph C. Stepina, Little Rock, for appellees.

CINDY GRACE THYER, Judge

₁Sherri Reggans appeals a Pulaski County Circuit Court order granting summary judgment in favor of Scott Schlesinger, MD; and Freeway Surgery Center, LLC (collectively "Appellees"). On appeal, Reggans contends that Appellees failed to establish a prima facie entitlement to summary judgment; that there were genuine issues of material fact in dispute; and that summary judgment was premature.

This medical-malpractice action arose after Dr. Schlesinger performed a spinal fusion surgery on Reggans at Freeway Surgery Center in March 2017. Reggans claimed her condition began to worsen shortly after the surgery. She further claimed that she informed Dr. Schlesinger of her worsening symptoms, but he failed to take any action to address her concerns.

₂Approximately four months after the surgery, in August 2017, Dr. Schlesinger ordered an MRI. Reggans claimed that the MRI revealed that the pedicle screw Dr. Schlesinger used in her spinal fusion was malpositioned and was too long, resulting in the screw compressing her L5 nerve root. By her account, Dr. Schlesinger admitted that the screw was the cause of her declining physical health and advised that it needed to be removed immediately.

Dr. Schlesinger performed a second surgery in September 2017 to remove the offending pedicle screw. Reggane claims that, as a result of Dr. Schlesinger’s actions, scar tissue formed around the nerve, which, in turn, caused a practically irreversible nerve condition. She claims his negligence has caused her to suffer from severe chronic pain in her lower back and extremities, pain in her left hip, spasms, carpal tunnel syndrome, and weakness in her upper extremities.

As a result of the foregoing, in March 2019, Reggans filed a medical-negligence action against Dr. Schlesinger and Freeway Surgery Center. That case was subsequently dismissed without prejudice pursuant to Rule 41 of the Arkansas Rules of Civil Procedure on November 7, 2019.

[1] Reggans refiled her complaint for medical negligence¹ on November 9, 2020—the last day to file pursuant to the savings statute. Dr. Schlesinger and Freeway Surgery Center answered and generally denied the allegations of Reggans’s complaint in February 2021.

₃Appellees in this case moved for summary judgment on September 10, 2021. In support of their motion, Appellees attached the affidavit of Dr. Noojan Kazemi, a board-certified neurosurgeon with University of Arkansas for Medical Sciences. Dr. Kazemi testified that he had reviewed Reggans’s complaint and deposition as well as the medical records of Dr. Schlesinger and Freeway Surgery Center. Dr. Kazemi reviewed those materials and opined "within a reasonable degree of medical certainty, that there is no evidence whatsoever that Dr. Schlesinger or Freeway Surgery Center failed to comply with the applicable standard of care, or that any acts or omissions on their part proximately caused any injuries or damages" to Reggans. He further averred that, in his professional opinion, "within a reasonable degree of medical certainty, there is no evidence whatsoever that the persistence of [Reggans’s] subjective pain symptoms post-operatively were the result of negligence on the part of Dr. Schlesinger or Freeway Surgery Center." He stated that "[s]uch symptoms are a known risk and complication of spinal surgery" that can and do occur "even ₄in the absence of negligence on anyone’s part." He then stated that, in his professional opinion and again within a reasonable degree of medical certainty, Reggans’s postoperative pain symptoms "could not have been predicted or prevented by Dr. Schlesinger or Freeway Surgery Center." Moreover, having reviewed the medical records, Dr. Kazemi attested that there was no deviation from the standard of care by Dr. Schlesinger or Freeway Surgery Center in connection with Reggans’s care and treatment, and nothing they did or failed to do in connection with their care and treat- ment contributed, proximately or otherwise, to any of the injuries or damages alleged in Reggans’s complaint.

On October 4, Reggans filed a motion for extension of time to file a response to the motion for summary judgment. In her motion for extension of time, Reggans informed the court that, due to her counsel’s current caseload, additional time was needed to obtain further information and to prepare a response to the motion. She further informed the court that she was awaiting an expert opinion, which had been requested. She then requested an extension of time until October 11, 2021, to provide a response. Her request was granted.

On October 11, 2021, Reggans responded to the motion for summary judgment, denying that Appellees had established an entitlement to summary judgment and claiming that she had identified a physician expert to testify regarding the issue of medical malpractice; however, she stated she still needed additional time under Arkansas Rule of Civil Procedure 56(f) to gather evidence. She asserted that the deadline for the completion of discovery had yet to pass; that the timeline to disclose and provide the summary of expert opinions had ₅not passed; that the deadline for deposing expert witnesses had not passed; and that a trial date had not yet been set. She attached the affidavit of her counsel as required by Rule 56(f).

Appellees replied on October 28, asserting that Reggans had had sufficient time to develop or prosecute her case and yet still lacked the expert support necessary to create a genuine issue as to any material fact.

A hearing on the motion for summary judgment was held on December 3, 2021. At the hearing, Reggans continued to maintain, in part, that summary judgment was premature since discovery had not yet been completed, Appellees’ expert witness had not been deposed, and Appellees had not provided all the imaging studies in discovery, which her expert had told her he needed to render his opinion. As such, a continuance was necessary to allow for further discovery.

After hearing arguments of counsel, the court granted an almost forty-five-day extension, until January 14, 2022, to allow counsel to complete any necessary discovery and to supplement Reggans’s response. In doing so, the court noted the length of time since the initial filing of the complaint and stated that there had been adequate time to conduct discovery. The court warned counsel that if the requisite proof was not submitted by the deadline, the court would grant the motion.

On December 8, 2021, Reggans propounded requests for admissions to Dr. Schlesinger. One of the requests sought an admission that Dr. Schlesinger had in his possession, custody, or control medical records that were not produced to her. Dr. Schlesinger denied having possession, custody, or control of the records.

₆At approximately 8:30 p.m. on January 14, Reggans supplemented her response with the affidavit of Dr. Wade Jensen, an orthopedic surgeon; a letter from Appellees’ counsel regarding Reggans’s request for medical records;² and an affidavit from Reggans’s counsel indicating that Appellees had failed to produce certain medical records during discovery and that these records were necessary for Reggans’s expert to render an opinion in the matter.

Counsel again requested that the summary-judgment motion be denied or that a decision on the motion for summary judgment be stayed until Appellees had produced all requested medical records and until depositions had been taken.

Dr. Jensen’s affidavit noted that he is a "medical doctor and board-certified orthopedic surgeon."³ He stated that, in preparation for giving his medical opinion, he had reviewed the complaint, the billing records from Arkansas Neurosurgery Brain & Spine Clinic and Freeway Surgery Center; one hundred pages of records from Legacy Spine and Neurological Specialists; thirty-two pages of records from Legacy Surgery Center; imaging from Pavilion MRI; records from UAMS; and Dr. Schlesinger’s discovery responses. Dr. Jenson stated that he had reviewed these records, and there was evidence that the left L5 pedicle screw "may" have been placed medial to the pedicle, thus impaling the L5 nerve root. ₇He stated that he would expect the misplaced pedicle screw to cause the L5 nerve symptoms Reggans experienced postoperatively. He opined that the failure to recognize the screw malposition and the delay in its removal "may" have fallen below the standard of care. Finally, he stated that he had not seen the interoperative or postoperative imaging and that he needed to do so in order determine if her injuries could have been avoided.

On January 18, 2022, after the court-imposed deadline for supplementation, Reggans moved to compel discovery, alleging that Appellees had intentionally omitted certain records from their production of documents—including the imaging that showed the misaligned position of the pedicle screw—and had claimed that the images were in the possession of a "nonparty" provider, Pavilion MRI—a company Reggans claims is controlled by Dr. Schlesinger.

On January 21, 2022, the circuit court granted Appellees’ summary-judgment motion, finding that Reggans had failed to supplement her response to the motion for summary judgment.⁴ Reggans timely moved for reconsideration, alerting the court to her timely response and again asking the court to deny the motion for summary judgment to allow time for additional discovery.

Appellees responded that Reggans had failed to object to the submission of the proposed...