Frances Finley v. Richard Evans

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Pasco M. Bowman and Duane Benton (UNPUBLISHED) [4411562] [15-3646]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3646
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Frances Morris Finley
lllllllllllllllllllll Plaintiff - Appellant
v.
Richard Parker Evans, MD
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: June 9, 2016
Filed: June 14, 2016
[Unpublished]
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Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
In this diversity action, Frances Morris Finley appeals the district court’s1
adverse grant of summary judgment on her Arkansas state-law claim asserting that Dr.

1

The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.

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Date Filed: 06/14/2016 Entry ID: 4411562

Richard Parker Evans failed to obtain her informed consent before performing kneereplacement surgeries. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
After conducting a de novo review of the record and carefully considering the
parties’ arguments on appeal, this court concludes that the grant of summary judgment
was proper in light of Finley’s lack of an expert opinion supporting her informedconsent claim. See United States v. Dico, Inc., 808 F.3d 342, 346 (8th Cir. 2015) (de
novo standard of review for summary judgment decision). See Ark. Code Ann. § 16114-206(b)(1) (“[W]hen the plaintiff claims that a medical care provider failed to
supply adequate information to obtain the informed consent of the injured person, the
plaintiff shall have the burden of proving that the treatment, procedure, or surgery was
performed in other than an emergency situation and that the medical care provider did
not supply the type of information regarding the treatment, procedure, or surgery as
would customarily have been given to a patient in the position of the injured person
or other persons authorized to give consent for such a patient by other medical care
providers with similar training and experience at the time of the treatment, procedure,
or surgery in the locality in which the medical care provider practices or in a similar
locality.”); Fuller v. Starnes, 597 S.W.2d 88, 89-90 (Ark. 1980) (holding expert
testimony is always required for medical negligence cases involving informed consent
because physician’s duty of disclosure is measured by customary disclosures in
practicing community).
The judgment is affirmed. See 8th Cir. R. 47B.
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Date Filed: 06/14/2016 Entry ID: 4411562