Morley et al v. Medic One LLC et al

Filing 120

ORDER dismissing without prejudice the Doe defendants. The 98 Motion is denied. 112 Motion for partial summary judgment is granted. Signed by Judge D. P. Marshall Jr. on 11/16/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
ROY MORLEY; and WENDY MORLEY

PLAINTIFFS

No. 3:16-cv-110-DPM

v.

MEDIC ONE LLC, dfb/a Medic One-Arkansas;
DANIEL RIVERA; DESIREE HAWKINS BYRD;
JOHN DOES, 1-6; AIR EV AC EMS, INC., dfb/a
Air Evac Lifeteam; JIM TOLEWITZKE;
BROOKLAND FIRE PROTECTION DISTRICT;
and AMERICAN ALTERNATIVE
INSURANCE CORPORATION

DEFENDANTS

ORDER
A man is injured in a tractor accident on a rural road. EMTs from
the local volunteer fire department get there first. They immobilize the
man on a spine board. An ambulance comes. Everyone agrees he
should be flown to the hospital, and an air ambulance is summoned.
The ambulance takes him to a spot where the helicopter can land. It
arrives. A nurse employed by the air ambulance accepts charge of the
injured man's care.

Many hands are helping.

An EMT from the

volunteer fire department steps down from the back of the ambulance
and pulls the stretcher out. For reasons both murky and disputed at
this point, the stretcher's carriage doesn't deploy- the frame and
wheels don't come down. The end of the stretcher with the injured
man's head on it falls . On the way to the ground, the man's head hits

the ambulance' s bumper. He's then loaded into the helicopter and
flown to the hospital.
This is what happened to Roy Morley. He and his wife have sued
the ambulance company (Medic One) and its employees on the scene
(Rivera and Byrd), the air ambulance company (Air Evac), the
volunteer EMT who pulled the stretcher out of the ambulance
(Tolewitzke), the local fire department where the EMT volunteered (the
Brookland Fire Protection District), and the department's insurer
(American Alternative). There are also John Doe defendants-who are
dismissed without prejudice because the time for proposing amended
pleadings has passed.
Early on, there was back and forth about service-related issues
and whether the three-year limitation period had run against Air Evac.
The Court ultimately decided that the air ambulance company should
stay in the case. Air Evac now asks for summary judgment, arguing
mainly that the Morleys' claims are barred by the two-year statute of
limitations for medical injuries. Air Evac preserves (in the alternative)
its earlier limitations argument; it also says the record fails on duty and
proximate cause.

Medic One and its employees join in this new

malpractice-based limitations argument and the elements arguments.
The Brookland-related defendants seek partial summary judgment.
They invoke the public entity's statutory immunity except insofar as
insurance coverage exists. There's $300,000 worth.
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2. The two-year period for suing about medical injury doesn't
apply to the Morleys' claims.
The statute defines

II

medical care providers" by listing them.

Ambulance companies, air ambulance companies, EMTs, firefighters,
and paramedics aren't listed. ARK. CODE ANN. § 16-114-201(2). With
one exception, no defendant or individual working for a defendant on
this scene was a medical care provider embraced by the Act. The
exception is the Air Evac nurse who was taking care of Mr. Morley.
The nurse isn't a clear path out of the case for Air Evac. Another
company employee was also there. According to some, this paramedic
was helping in the box-the back of the ambulance-as Morley was
moved. The nurse's co-worker widens the basis for Air Evac' s potential
liability in this suit against the company itself.
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The statute defines medical injury expansively- any adverse
consequences arising out of or sustained in the course of the
professional services being rendered by a medical care provider to a
patient ... [.]" ARK.

CODE

ANN. § 16-114-201(3); Dodson v. Charter

Behavioral Health Systems of Northwest Arkansas, Inc., 335 Ark. 96, 103-

04, 983 S.W.2d 98, 102 (1998). Air Evac says that allowing the stretcher
to fall resulted in adverse consequences for Morley during the course
of the nurse's professional services. This argument is in some tension,
though, with Air Evac' s main defense: Medic One was in charge of
Morley's care and responsible for moving him.
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The Morleys' claims aren't about medical care. They assert no
injury, for example, from the nurse's intubation of Mr. Morley. They
don't complain about her nursing. Instead, the Morleys' claims are
about how Mr. Morley was handled between the ambulance and the
helicopter. He was a patient, but he was also a passenger. There's no
question that the trained professionals who work in ambulances
provide medical care, often life-saving care.

If the professional is

covered by the Act, then the Act applies .to their treatment decisions including the law' s requirements of expert testimony and a particularly
prompt lawsuit. An analogous fall case in the hospital context is Sexton

v. St. Paul Fire & Marine Insurance Co., 275 Ark. 361, 631 S.W.2d 270
(1982). If the professional in the ambulance is not covered, such as Air
Evac's paramedic, then the Act doesn't apply to that person's decisions.
If a covered professional is involved in the patient's care, as Air Evac' s

nurse was, then the Act may or may not apply. It depends on the
circumstances of the injury.
Does an elderly and confused patient prone to falls need a Posey
vest to keep him in bed? E.g., Sexton, supra. That's a medical judgment.
Should a patient be immobilized on a spine board? Should he be
intubated? Those are medical questions, too. Should a patient strapped
to a spine board be dropped? That's common sense. It's akin to the
question of negligent supervision in Bailey v. Rose Care Center, 307 Ark.
14, 18-20, 817 S.W.2d 412, 414-15 (1991). The wheelchair-bound patient
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"was under a doctor's care while he was in the nursing home, but his
death was not the result of a doctor's treatment or order." Bailey, 307
Ark. at 19,817 S.W.2d at 414. He wasn't confined to his bed or room.
The issue was whether he was properly supervised by the LPN (a
covered professional) and nurses' aides (not covered) on the night he
rolled himself out of the facility and onto a highway. Mr. Morley's
circumstances are like those in Bailey.
The Arkansas cases involving ambulances throw only scattered
light. In an older dispute about coverage, it was assumed that the
dropped patient had a negligence claim against the ambulance
company. Owens v. Ocean Accident & Guarantee Corp., 194 Ark. 817, 109
S.W.2d 928, 928 (1937). In another coverage dispute, the Arkansas
Supreme Court held that the ambulance company was a common
carrier: with a patient and her mother-in-law on board, an ambulance
driver ran a stop sign on the way to the hospital, causing an accident;
the ambulance company was bound by a carrier's high standard of care
to both passengers. Home Insurance Co. v. Covington, 255 Ark. 409, 41112, 501 S.W. 2d 219, 220-21 (1973). There's also a tangled case about a
nursing home losing control of a wheelchair, dropping a patient, and
allegedly not giving proper care afterward.

The nursing home

admitted liability for negligence in the drop, but litigated damages on
that claim. It also said there was no malpractice in the patient's postfall medical care. The case had to be retried after a plaintiff's verdict
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because there was no expert testimony about medical malpractice.

Spring Creek Living Center v. Sarrett, 319 Ark. 259, 262, 890 S.W. 2d 598,
600 (1995). Nursing homes are medical care providers covered by the
malpractice Act. The limitations argument Air Evac makes here was
not ventilated in Spring Creek. The Arkansas Court of Appeals' decision
in Glass v. Saline County Medical Center, 2012 Ark. App. 525, at 1, 423
S.W.3d 618, 619 (2012), involved a hospital's ambulance. It was "a
medical malpractice case." Ibid. No facts are described; the Act's
applicability was assumed; limitations wasn't argued. Glass makes no
holding on this point.
As the leading commentators summarize, "not all acts that occur
in a medical setting are claims under the statute." HOWARD W. BRILL &
CHRISTIAN H. BRILL, LAW

OF

DAMAGES, § 26:1 at 582-83 (6th ed.

2014)(collecting cases); see generally, Panlino v. QHG of Springdale, Inc.,
2012 Ark. 55, 7-10, 386 S.W.3d 462, 466-67 (2012). This Court must
therefore make something of an Erie-educated prediction. Blankenship

v. USA Truck, Inc., 601 F.3d 852, 856 (8th Cir. 2010). If confronted with
the Morleys' claims and this record, the Arkansas Supreme Court
would build on Home Insurance Co. v. Covington and Bailey v. Rose Care

Center: ambulance services are common carriers;

when an injury

allegedly results from an act or omission contrary to the extra care the
law requires in carriage-related activities, and the injury doesn't arise

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from a covered professional' s medical treatment or judgment call, then
a negligence claim beyond the malpractice Act exists.
Last, the essential elements of that claim and this record. Air Evac,
Medic One, and their employees had a duty to Mr. Morley. No one
strapped to a spine board should be dropped. Marlar v. Daniel, 368 Ark.
505,508, 247 S.W.3d 473,476 (2007). Who had control over Morley is a
central and disputed fact. As in most cases, causation is for the jury.
Cash v. Lim, 322 Ark. 359,362,908 S.W.2d 655, 657 (1995). Based partly

on the acceptance-of-care form signed by Air Evac' s nurse before the
stretcher was moved, the jury could conclude that Air Evac was
responsible for getting Morley into the helicopter safely. Based on the
other testimony highlighted by Air Evac, the jury could conclude that
Medic One was responsible. A stray bottle of defibrillator gel may have
interfered with the safety mechanism that should have caught the
stretcher at the back of the ambulance. That circumstance could weigh
against the ambulance company, too. The volunteer EMT' s role - he
rode with Morley in the ambulance, got down, and then pulled the
stretcher out- can be argued in several ways. In sum, this record
makes a case for the jury on which person or persons proximately
caused this accident.
3. The town of Brookland created the Brookland Fire Protection
District decades ago. This public entity is immune from suit for the
alleged negligence of the department's firefighters and EMTs except to
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the extent insurance coverage exists. ARK.

CODE

ANN. § 21-9-301(a) &

(b). The parties agree on all this, and that the American Alternative
policy provides $300,000 in coverage to the department and Tolewitzke
for his part in transporting Mr. Morley. NQ 112, 113, 114 & 117. The
Morleys' potential recovery against the Brookland-related defendants
is capped at $300,000.

* * *
The Doe defendants are dismissed without prejudice. The motion
for summary judgment based on limitations, duty, and causation,
NQ 98, is denied. The motion for partial summary judgment based on

statutory immunity and existing coverage, NQ 112, is granted.
So Ordered.
D.P. Marshalf Jr.
United States District Judge

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