Turner v. Faulkner County, Arkansas et al

Filing 94

ORDER granting in part and denying in part 81 motion for summary judgment. Turner's claims about his medical judgment in treating Warner stretching from 11/08/2017 through her death on 11/22/2017 will be tried. The reversed parts of Dr. Stewar t's 53 second motion in limine are mostly granted, with the proof for trial limited as specified in 76 Order. Turner may not reference jail policies related to routine screening or offer proof that Dr. Stewart allegedly violated any other po licies before the doctor-patient relationship was established. Turner must proffer any specific policy that she believes mirrors the standard of care and is thus relevant to the 11/08/2017 through 11/22/2017 period. And the Court will consider admission with an appropriate limiting instruction. This case is first out for trial on 10/04/2021. The deadline for all pretrial filings is extended to 09/15/2021. Signed by Chief Judge D. P. Marshall Jr. on 09/08/2021. (ajt)

Case 4:18-cv-00468-DPM Document 94 Filed 09/08/21 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
CHRISTINE TURNER,
Special Administrator of
the Estate of Linda Warner,
Deceased

PLAINTIFF

No. 4:18-cv-468-DPM

v.

GARRY STEWART, M.D.

DEFENDANT
ORDER

1. Turner settled all her claims against all defendants except for

the medical malpractice claim against Dr. Stewart. But, the scope of
that claim for trial has been a matter of dispute. After an inconclusive
round of motions in limine, the Court held a hearing in April to address
the remaining claim. The hearing helped focus the issues but did not
resolve them. At the end of the hearing, the Court directed Dr. Stewart
to move for summary judgment on the post-settlement scope of
Turner's medical malpractice claim. Dr. Stewart's motion is ripe; the
Court regrets its delay in ruling on these well-briefed issues. The Court
takes the material facts, where genuinely disputed, in Turner's favor.
Oglesby v. Lesan, 929 F.3d 526, 532 (8th Cir. 2019).
2. Under the Arkansas Medical Malpractice Act, ARK. CODE ANN.
§ 16-114-201, et seq.,

Turner can sue Dr. Stewart for Warner's medical

Case 4:18-cv-00468-DPM Document 94 Filed 09/08/21 Page 2 of 6

injuries resulting from a professional service, his treatment or order, or
a matter of medical science. Paulino v. QHG of Springdale, Inc., 2012 Ark.
55, at *7-10, 386 S.W.3d 462, 466-67. The root question is which of
Turner's remaining allegations against him press a malpractice claim.
Claims involving Dr. Stewart's direct care and treatment of
Warner are clearly covered by the Act.

It's common ground that

Warner's 21 November 2017 visit with Dr. Stewart presents a triable
claim. The particulars of that visit, and its aftermath, are disputed. Fact
issues

include

Warner's

informed

consent,

the

examination's

thoroughness, and Dr. Stewart's alleged inaction as the day wore on.
Those details will be resolved by the jury.
There's more here, though, and the calendar is important. The
dates and key events are undisputed. Warner was booked into the
Faulkner County Detention Center on 31 October 2017. Her intake
form indicated that she had diabetes and difficulty walking. The form
also stated that she was in pain and experiencing stomach problems.
On 5 November 2017, Warner submitted a medical grievance repeating
her stomach problems and outlining incontinence issues. Doc. 85-2 at
2. A few days later, on 8 November 2017, Nurse Grant sent Dr. Stewart
a fax with a question:
Linda Warner - 59 y/o WF/
Complains of bladder leakage and wants us to supply adult
briefs,/

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Case 4:18-cv-00468-DPM Document 94 Filed 09/08/21 Page 3 of 6

States that she leaks every time she moves/
We have let the officers know that she will need to replace
feminine napkins,/
frequently./
Any other orders concerning this detainee?/
Respectfully,/
Karen D. Grant, LPN/
[/s/ Karen D. Grant, LPN]/
Doc. 83 at 35. Dr. Stewart's handwritten response on a return fax was

"No." Doc. 83 at 35. A week later, on 15 November 2017, Warner asked
to see Dr. Stewart. She requested her medications. She reported pain,
fibromyalgia, high blood sugar, and a rash.

And she asked for

Depends, to help manage her incontinence. On the same day, Dr.
Stewart signed off on a medication order form for Warner. He did not
see or examine her until six days later, on November 21st.
When was a doctor-patient relationship established between the
two? Chatman v. Millis, 257 Ark. 451, 453, 517 S.W.2d 504, 506 (1975).
This Court's Erie-educated prediction, Blankenship v. USA Truck, Inc.,
601 F.3d 852, 856 (8th Cir. 2010), is that the Arkansas Supreme Court
would conclude that Dr. Stewart's doctor-patient relationship with
Warner began when he responded to the fax on November 8th. His
decision not to give further orders was a professional service, which the
Act covers both as an action and an omission. ARK. CODE ANN.§ 16114-201(3). The relationship continued. On November 15th, though he

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Case 4:18-cv-00468-DPM Document 94 Filed 09/08/21 Page 4 of 6

hadn't examined her, Dr. Stewart was informed about Warner's
complaints and put in a medication order in response to them. In the
Act's terms, through his order, he again provided her professional
services as the licensed health care provider responsible for her. Ibid.;
see also, Paulino, 2012 Ark. 55, at *7-10, 386 S.W.3d at 466-67. Whether-

based on the facts known to him-Dr. Stewart should have done
anything else between November 8th and 15th, and whether he should
have done more on November 15th than a medication order, and
whether his treatment decisions caused Warner's medical injuries, are
also triable malpractice issues.
The remainder of Turner's claims sound in something other than
medical malpractice because there was no doctor-patient relationship
undergirding those claims. Thompson v. Sparks Regional Medical Center,
2009 Ark. App. 190, at *5, 302 S.W.3d 35, 38. There was no doctorpatient relationship on Warner's intake at the jail. A person doesn't
become a doctor's patient just by virtue of their detention and
participation in routine screening.

Similarly, Dr. Stewart's role as

medical director and policymaker for the jail doesn't create a doctorpatient relationship between him and every detainee.

National

standards, jail rules, or center protocols don't create that kind of legal
duty. Bedell v. Williams, 2012 Ark. 75, at *6, 386 S.W.3d 493,499. Neither
does Dr. Stewart's contract with the jail. Broadway Health & Rehab, LLC
v. Roberts, 2017 Ark.

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App. 284, at *7, 524 S.W.3d 407, 412. The filing of a medical grievance,
by itself, also doesn't establish the relationship required by the Act.
Any allegations stemming from Dr. Stewart's role overseeing Faulkner
County Detention Center staffers' contacts with Warner, beyond his
direct care and treatment of her, exceed the Act's boundaries. They
present § 1983 and negligence claims, which were all settled. And
Turner's claims arising from screening, medical grievances before 8
November 2017, and the actions of other jail personnel (throughout
November) have also passed out of the case in her global settlement
with the Faulkner County Defendants and settlement by them of the
non-malpractice claims against Dr. Stewart. Doc. 45.
***
Dr. Stewart's motion, Doc. 81, is partly granted and partly denied.
Turner's claims about his medical judgment in treating Warner
stretching from 8 November 2017 through her death on 22 November
2017 will be tried. The reserved parts of Dr. Stewart's second motion in
limine, Doc. 53, are mostly granted, with the proof for trial limited as

specified in this Order. See Doc. 76. Turner may not reference jail
policies related to routine screening or offer proof that Dr. Stewart
allegedly violated any other policies before the doctor-patient
relationship was established. Turner must proffer any specific policy
that she believes mirrors the standard of care and is thus relevant to the
8 November 2017 through 22 November 2017 period. And the Court

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Case 4:18-cv-00468-DPM Document 94 Filed 09/08/21 Page 6 of 6

will consider admission with an appropriate limiting instruction. This
case is first out for trial on 4 October 2021. The deadline for all pretrial
filings is extended to 15 September 2021.
So Ordered.

(/

D .P. Marshall Jr.
United States District Judge

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