Hamrac v. Mizes et al

Filing 83

ORDER granting 40 Defendants' motion for partial summary judgment; granting 37 St. Mary's motion for summary judgment; and granting 43 Dr. Mizess first motion in limine. Signed by Judge James M. Moody Jr. on 11/17/2022. (llg)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
JOHN DAVID HAMRAC
v.

PLAINTIFF
CASE NO. 4:21-CV-00292-JM

DR. CRAIG B. MIZES;
ST. MARY'S PHYSICIANS SERVICES, LLC

DEFENDANTS

ORDER
Plaintiff brought this negligence action against the doctor who performed his
appendectomy and the hospital that employed the doctor. Pending are Defendants’ joint motion
for partial summary judgment and a separate motion for summary judgment filed by St. Mary’s
Physician Services, LLC (“St.Mary’s”). (Doc. Nos. 40 and 37). Also pending is Dr. Mizes’s
motion in limine. (Doc. 43). Plaintiff has responded to all three, and Defendants have replied.
For the reasons stated below, all three motions are granted.
Background 1
On August 7, 2019, Defendant Dr. Craig Mizes performed a laparoscopic appendectomy
on Plaintiff John David Hamrac who was on vacation in Arkansas. Plaintiff experienced some
internal bleeding after the surgery, and Dr. Mizes ordered two blood transfusions on August 9,
2019. While Plaintiff’s hemoglobin and hematocrit levels remained below normal, Dr. Mizes
determined that Plaintiff’s levels were stable and had increased sufficiently for him to be
discharged on August 10, 2019. Plaintiff’s discharge instructions were to participate in only
light activity and to follow up at the clinic within two or three days to recheck his blood count.
Plaintiff returned to his home in Florida the day following his discharge and returned to work the

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Taken primarily from Defendants’ Statement of Undisputed Facts (Doc. No. 42) and Plaintiff’s
responses (Doc. No. 53).

next day, driving materials to two roofing jobsites.
On August 12, 2019, Plaintiff went to West Florida Hospital (“WFH”) experiencing
severe abdominal pain. Plaintiff underwent a diagnostic laparoscopy at which time old blood
from the internal bleed that had occurred following the appendectomy was evacuated. On
August 15, 2019, a CT scan revealed a small laceration to Plaintiff’s liver. Plaintiff developed
an infection and was given antibiotics. He was discharged from WFH on August 21, 2019, but
readmitted on August 30, 2019 with abdominal pain, fever, and vomiting from his continuing
infection. On August 31, 2019, Plaintiff underwent a CT-guided drainage of his abdominal
abscess and had a drain placed to collect fluid. On September 3, 2019, he began receiving IV
antibiotics through a PICC line. He was discharged from WFH on September 13, 2019 with both
the PICC line and the abdominal drain remaining in place.
Plaintiff filed a complaint alleging medical negligence and gross negligence against Dr.
Mizes and negligent retention and negligent supervision by St. Mary’s. Plaintiff initially alleged
that medical negligence occurred both during the surgery—alleging Dr. Mizes had lacerated his
liver—and during his post-operative care. As to gross negligence, Plaintiff alleged that Dr.
Mizes, whose medical license had been suspended in 2014 for use of opioids, was under the
influence of a controlled substance during his care of Plaintiff, and that Dr. Mizes denied him
proper medical care after finding out that Plaintiff’s only insurance was Medicaid. After
Defendants filed the pending motions for summary judgment, Plaintiff filed an amended
complaint removing the claim of medical negligence related to the surgery and dropped his claim
for punitive damages. Defendants’ motion for summary judgment on these two claims is granted.
Summary Judgment Standard
Summary judgment is appropriate only when the evidence, when viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the
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defendant is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The initial burden is on the moving party to demonstrate the absence of a
genuine issue of material fact. Celotex Corp., at 323. The burden then shifts to the nonmoving party to
establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d
364, 366 (8th Cir. 1997). “Rule 56 must be construed with due regard not only for the rights of persons
asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a
jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner
provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Celotex Corp., at
327.
Defendants’ Joint Motion for Partial Summary Judgment

The only issue left for the Court to address from Defendants’ joint motion for partial
summary judgment is Plaintiff’s claim for gross negligence. 2 Under Arkansas law, gross
negligence is “[t]he intentional failure to perform a manifest duty in reckless disregard of the
consequences as affecting the life or property of another.” Doe v. Baum, 72 S.W.3d 476, 487
(2002). It has also been defined as “the failure to use even slight care.” Spence v. Vaught, 367
S.W.2d 238, 240 (1963).
In support of his gross negligence claim, Plaintiff relies on two arguments. One, Plaintiff
argues that he was discharged prematurely because Medicaid was his only insurance. He
testified that when he told Dr. Mizes after the surgery that only Medicaid insurance was
available, “he looked at me with a puzzled look and said, you don’t have insurance, and he got
up and walked off.” (Doc. 40-3, p. 14). His wife testified that after her husband told Dr. Mizes
that he had Medicaid, “[Dr. Mizes] had this look on his face, and then he just walked out, and
that was pretty much it of that visit.” (Doc. No. 40-4). Plaintiff also put forth the testimony of his
Defendants are not seeking summary judgment on the claim for medical negligence arising out
of Dr. Mizes’s post-operative care of Plaintiff.
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expert, Dr. Awad, that Plaintiff’s low hemoglobin and hematocrit levels after he had the two
blood transfusions on August 9, 2019 indicated an ongoing abdominal bleed that required
treatment before he was discharged.
From this evidence, Plaintiff argues that when Dr. Mizes discharged him three days after
his surgery, it was “presumably because of his insurance status.” (Doc. No. 52, p. 2). The
evidence Plaintiff relies on to support his claim for gross negligence is legally insufficient to
establish a material fact that Dr. Mizes intentionally failed to perform a manifest duty in reckless
disregard of the consequences to Plaintiff’s life, failing to use even slight care. Plaintiff was
treated for three days following the insurance discussion and discharged with instructions to
follow up in two or three days to check his blood count. Plaintiff’s interpretation of Dr. Mizes’s
demeanor upon learning that Plaintiff was covered by Medicaid in no way supports a claim of
gross negligence.
Plaintiff’s second argument in support of his claim for gross negligence is that Dr. Mizes
was under the influence of a controlled substance at the time he was treating Plaintiff.
Defendants offer the following undisputed evidence to defeat this claim: after having his
medical license suspended in 2014 for use of opioids, Dr. Mizes agreed to a five-year monitoring
contract which required that he be subjected to randomized drug testing two to five times a
month; Dr. Mizes never failed any of his randomized drug tests; Plaintiff’s expert agrees that
there is no medical evidence indicating that Mizes was intoxicated during Plaintiff’s procedure;
and there is no evidence that Dr. Mizes failed to follow the appropriate standard of care in
performing the surgery.
To rebut this evidence, Plaintiff relies on evidence from Defendants’ toxicology expert
that some drug screens would not trigger a positive result for Vicodin, the drug Dr. Mizes abused

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in the past. Plaintiff also offers the testimony from himself, his wife, and their friend who was
with them in the hospital that Dr. Mizes looked to them like he was on some kind of drug.
Specifically, Plaintiff testified as follows: “He just real fidgety, bouncing everywhere,
couldn't sit still. I mean I'm around -- I've been around people on a lot of different drugs and he
kind of looked like he was on something.” (Doc. 40-3, p. 29).
Plaintiff’s wife, Gail Hamrac, testified that on the day of the surgery Dr. Mizes seemed
“off,” meaning she “thought he was on drugs” because:
[H]e was kind of slurring his words. He was kind of moving fast, but some of the
stuff he was saying to me, I just—it didn’t make sense . . . But I’m no doctor, but
I was like, okay, so maybe it does all make sense. . . . I guess he kind of
explained the surgery like or whatever. It was just like, I don’t know what he’s
talking about. Because he was foaming out of the mouth. I mean it was just
weird. . . . I’ve been around people that have done drugs, and it just seemed like
he was not there. Like to me, it was more of like Xanax or something.”
(Doc. No. 40-4, p. 12). She further explained: Well, [he wasn’t moving] like fast, fast.
He was just like he didn’t know where to go, like fidgety, I guess you could put it.” Id.
Ultimately, she clarified that she didn’t ask to speak to anybody after he left the room and
when asked if she was concerned, she responded “[n]o, I mean I wasn’t sure if he was or
not. Some people are weird. People act weird you know.” She also testified that he
seemed normal the other days, that “it was just that one day, but I didn’t know him, you
know, like I said, so.” Id. at 18.
Finally, Plaintiff submits the testimony of Caroline Vargas who stated that she felt “like
[Dr. Mizes] may have been under the influence of something . . . [j]ust the way he was throwing
himself around the room” and “kind of slurring” and looked “messed up” the day of the surgery.
Unlike the Hamracs, who said he seemed to be moving fast and fidgeting, Ms. Vargas testified
that “he sat there, nonchalantly,” and she described him as casual and unprofessional.

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The testimony of Plaintiff, his wife, and Ms. Vargas, in context, fails to establish any
reliable evidence from which a jury could find that Dr. Mizes was impaired at any time during
his treatment of Plaintiff, or even that the three witnesses actually thought he was. In fact, Gail
Mizes admitted that she was not concerned that he was impaired, so she did not ask to talk to
someone before he operated on her husband. The Court would not submit this claim to the jury
on the evidence presented. Defendants are entitled to summary judgment on Plaintiff’s claim of
gross negligence.
St. Mary’s Motion for Summary Judgment
Plaintiff claims that St. Mary’s is vicariously liable to him for Dr. Mizes’s alleged
medical negligence under the theory of respondeat superior. In addition, Plaintiff asserts claims
against St. Mary’s for negligent retention and negligent supervision. St. Mary’s has admitted
that if Dr. Mizes is found to be negligent in his treatment of Plaintiff, his negligence would be
imputed to St. Mary’s. Plaintiff has withdrawn his claim for punitive damages. Under these
facts, the Court finds that Plaintiff’s claims for negligent retention and negligent supervision are
barred under Arkansas law by Elrod v. G&R Construction Company, 628 S.W.2d 17 (Ark.
1982).
When a defendant denies liability, no problem is encountered by allowing a
plaintiff to proceed under two consistent theories of recovery such as respondeat
superior and negligent entrustment. However, when defendant admits liability
under one of plaintiff's theories of recovery such as respondeat superior,
difficulties do arise and the authorities are divided on the issue whether plaintiff
should be allowed to proceed on one or both theories. . . . [W]e are inclined to
follow the majority view which allows plaintiff to proceed on only one theory of
recovery in cases where liability has been admitted as to one theory of recovery.
Id. at 18–19. See also In re Vhso FTCA Litig., No. 5:21-CV-5091, 2022 WL 1750628, at *4
(W.D. Ark. May 31, 2022) (finding “b]ecause negligent entrustment, hiring, supervision, and
retention claims are simply a means of imputing liability, like respondeat superior, pursuing one
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claim after the other has been admitted is redundant.). The Court is not persuaded by Plaintiff’s
argument that the rule in Elrod is limited to actions involving motor vehicle negligence. The
rational for only allowing one theory of recovery when vicarious liability has been admitted also
applies in the present case. See In re Vhso and Gardner v. Cont'l Cas. Co., No. 4:13CV00552
JLH, 2015 WL 11216699 (E.D. Ark. Mar. 18, 2015) (both medical negligence cases). 3
Plaintiff also argues that a reasonable jury could conclude that Dr. Mizes was “unfit or
unsuitable” based solely on the fact of his 2014 illegal drug use and license suspension and could
further conclude that “the continued employment of an admitted drug user and liar would subject
patients to harm in the course of their care.” (Doc. No. 48, p. 4). The Court disagrees. Even if
Plaintiff’s claims of negligent retention and negligent supervision were not barred by Elrod,
Plaintiff has failed to come forward with proof that would survive a directed verdict on his
claims against St. Mary’s for negligent retention and negligent supervision. For all these
reasons, St. Mary’s motion for summary judgment is granted on the claims of negligent retention
and supervision is granted.
Motion in Limine
Dr. Mizes moves in limine to exclude reference to four categories of evidence: (1) his
alleged negligent performance of the appendectomy; (2) his history of opioid use and speculation
that he was using narcotics while he was treating Plaintiff; (3) his alleged inquiry into Plaintiff’s
medical insurance; and (4) his alleged history of committing malpractice. Plaintiff has agreed as
to the alleged negligent performance of the surgery, and that motion is granted. As the Court is
granting St. Mary’s motion for summary judgment on the negligent supervision and negligent
Plaintiff has not alleged a direct negligence claim against St. Mary’s involving its policies and
procedures, which would not be barred by Elrod. See Crouch v. Master Woodcraft Cabinetry,
LLC, No. 2:20-CV-00078 KGB, 2021 WL 4155583 (E.D. Ark. Sept. 13, 2021) (citing Regions
Bank v. White, Case No. 4:06-cv-01475 JLH, 2009 WL 3148732 (E.D. Ark. 2009).
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retention claims against it, evidence of Dr. Mizes’s history of opioid use and the prior
malpractice claim are irrelevant, and the motion in limine is granted as to that evidence. Finally,
for the reasons stated above in discussing Plaintiff’s gross negligence claims, Dr. Mizes’s motion
in limine to exclude speculation that he was under the influence of narcotics at the time he was
treating Plaintiff and that the nature of Plaintiff’s medical insurance played a role in his medical
treatment is granted.
Conclusion
For the reasons stated above,
1.

Defendants’ motion for partial summary judgment (Doc. No. 40) is GRANTED;

2.

St. Mary’s motion for summary judgment (Doc. No. 37) is GRANTED; and

3.

Dr. Mizes’s first motion in limine (Doc. No. 43) is GRANTED.

IT IS SO ORDERED, this 17th day of November, 2022.
________________________________
UNITED STATES DISTRICT JUDGE

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