Betty Freeman v. Conway Regional Medical Center

Cite as 2020 Ark. App. 488
Reason: I attest to the
accuracy and integrity of this ARKANSAS COURT OF APPEALS
document DIVISION IV
Date: 2021-07-15 14:05:09
Foxit PhantomPDF Version: No. CV-19-958
9.7.5

Opinion Delivered: October 28, 2020
BETTY FREEMAN
APPELLANT
APPEAL FROM THE FAULKNER
V. COUNTY CIRCUIT COURT
[NO. 23CV-18-615]
CONWAY REGIONAL MEDICAL
CENTER, JOHN/JANE DOE RN 1–4,
JOHN/JANE DOE LPN AND CNA 1– HONORABLE SUSAN WEAVER,
4, AND JOHN DOE DIRECT ACTION JUDGE
INSURANCE CARRIER
APPELLEES AFFIRMED

RITA W. GRUBER, Chief Judge

This is a medical-malpractice case arising out of the care and treatment provided to

appellant Betty Freeman. Freeman appeals from two orders dismissing her complaint against

appellees Conway Regional Medical Center; Laura Grider, RN; and Lathecia Greenlee,

LPN. For reversal, Freeman argues that the circuit court erred in granting summary

judgment to Grider and Greenlee on the basis that her claim was barred by the statute of

limitations. We affirm.

On April 25, 2016, Betty Freeman fell in the shower while hospitalized at Conway

Regional Medical Center (CRMC), causing injuries to her back, neck, head, and legs.

Freeman filed a negligence action on April 24, 2018, naming CRMC as a defendant along

with “John/Jane Doe RN 1–5. John/Jane Doe LPN and CNA 1– and John Doe Direct

Action Insurance Carrier.” In regard to the John/Jane Doe RN, LPN, and CNA defendants,
Freeman alleged that their actual identity was unknown to her but would be determined

during the discovery process. Freeman’s counsel filed an affidavit with the complaint

pursuant to Arkansas Code Annotated section 16-56-125 (Repl. 2005) stating that the

identity of the John Doe tortfeasors was unknown. The facts alleged included the following:

(1) Freeman was transported by ambulance on April 24, 2016, to CRMC after experiencing

dizziness at her home; (2) the emergency medical technicians reported Freeman was

suffering from weakness, slurred speech, and facial droop and was suspected of having had

a stroke; (3) she was admitted to the hospital, and a sign was placed outside her door that

she was to be assisted in standing and with bathroom needs; (4) on April 25 she made a

request to nursing staff to take a shower; (5) an “unknown member of the staff presumed

by [Freeman] and her husband to be a nurse” assisted her out of bed and into the shower

and then left her unattended and exited her hospital room not to return; and (6) Freeman

suddenly fell in the shower, causing injuries. The complaint further alleged that the “RN’s,

LPN’s, and CNA’s” failed to use ordinary care to prevent the fall of a patient who was

known to be incapable of standing or walking without assistance, that they owed her a duty

to follow the medical directives and protocols related to a patient at risk for falling or unable

to walk, and that their failure to exercise ordinary care when she was taken to the shower

constituted negligence and was the sole and proximate cause of her injuries. Freeman also

alleged that the “RN’s, LPN’s, and CNA’s” were employees of CRMC such that their acts

or omissions are imputed to CRMC under the doctrine of respondeat superior.

Freeman filed an amended complaint on August 17, 2018, substituting “Laura

Grider, RN” for “Jane Doe 1, RN” and “Lathecia Greenlee, CNA” for “Jane Doe 1,

2
CNA.” Freeman alleged that Grider and Greenlee were members of her patient-treatment

team at the time of the incident. Grider and Greenlee filed an answer on August 27, 2018,

followed by a motion to dismiss on the ground that Freeman’s complaint was barred by the

statute of limitations. Specifically, Grider and Greenlee argued that because the alleged facts

occurred on April 25, 2016, and Freeman named them for the first time in the August 17,

2018, complaint, her complaint was beyond the two-year statute of limitations set out in

Arkansas Code Annotated section 16-114-203 (Repl. 2016) for medical-malpractice actions

and should be dismissed.

In response, Freeman contended that prior to filing her complaint, she was unable to

identify the names of the nurses and CNAs who treated her on April 25 based on a review

of her medical records. She argued the identity of Grider and Greenlee was unknown to

her “because their names were not located in, nor could their names be identified” in her

medical records. She stated that she did not learn of their identity until CRMC provided

discovery responses on August 14, 2018, which prompted the August 17 amended

complaint substituting Grider and Greenlee for two of the Jane/John Doe defendants.

Freeman attached CRMC’s discovery responses as exhibit A; interrogatory No. 12 provided

that Laura Grider was the RN on duty, and Lathecia Greenlee was the aide on duty when

Freeman was taken to the shower. As such, Freeman argued that the complaint complied

with the John Doe statute as well as the requirements of Rule 15(c) of the Arkansas Rules

of Civil Procedure addressing the relation back of amendments.

Greenlee and Grider replied that Freeman knew or should have known at the time

she filed her original complaint that they provided care to her on April 25, and thus the

3
John Doe statute and Rule 15(c) are inapplicable. Specifically, they argued that the medical

records “clearly and specifically show” they cared for Freeman on that date, and they

attached Freeman’s medical records as an exhibit. They elaborated that the author of a note

is identified by initials in the electronic medical record and stated that if there was ever a

question as to the identity of a person whose initials appear in the record, the record also

contains a “signature sheet or ‘User Key’ clearly informing the reader” who is identified by

the initials. They stated that based on this fact, Freeman’s argument that the “medical records

did not contain the names” of Grider and Greenlee is without merit. Grider and Greenlee

relied on Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002).

Upon Freeman’s request, a hearing on the motion to dismiss was held on July 31,

2019; however, Freeman’s counsel failed to attend. The circuit court orally granted the

motion and entered an order on August 5, 2019, dismissing the complaint against Grider

and Greenlee with prejudice.1 In granting the motion, the order indicated that the court

had considered the separate defendants’ motion, Freeman’s response, and separate

defendants’ reply, along with the exhibits attached. Freeman filed a timely notice of appeal

from that order on September 4, 2019.

On August 16, 2019, CRMC filed a motion for summary judgment on the basis that

the dismissal with prejudice of Grider and Greenlee extinguished its liability in the case

because Freeman’s complaint against them was based on vicarious liability. On November

1
After the order was entered, Freeman’s counsel filed a motion for findings of fact
and conclusions of law, which was denied. See Ark. R. Civ. P. 52(a) (providing in part that
findings of fact and conclusions of law are unnecessary on decisions of motions under the
rules).

4
6, the circuit court entered on order granting CRMC’s motion for summary judgment and

dismissing Freeman’s complaint against CRMC with prejudice. Freeman filed a timely

notice of appeal on November 20.

Although Grider and Greenlee’s motion leading to the order at issue was styled as a

motion to dismiss based on the expiration of the statute of limitations, the circuit court

considered matters outside the pleadings. When matters outside the pleadings are presented

and not excluded by the circuit court, a motion to dismiss will be treated as a motion for

summary judgment. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239. Here,

the circuit court’s order indicates it considered Grider and Greenlee’s motion, Freeman’s

response, and the reply brief, along with the exhibits attached thereto. Both parties agree

that the standard of review is one for summary judgment.

A motion for summary judgment should be granted when, in light of the pleadings

and other documents before the circuit court, there is no genuine issue of material fact, and

the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56(c) (2019).

When reviewing whether a motion for summary judgment should have been granted, this

court determines whether the evidentiary items presented by the moving party in support

of the motion left a material question of fact unanswered. Hill v. Hartness, 2017 Ark. App.

664, at 4, 536 S.W.3d 649, 651. The burden of sustaining a motion for summary judgment

is always the responsibility of the moving party. Id. All proof submitted must be viewed in

a light most favorable to the party resisting the motion, and any doubts and inferences must

be resolved against the moving party. Id. Summary judgment is proper, however, when the

statute of limitations bars an action. Id. (citing Alexander v. Twin City Bank, 322 Ark. 478,

5
910 S.W.2d 196 (1995); IC Corp. v. Hoover Treated Wood Prods., Inc., 2011 Ark. App. 589,

385 S.W.3d. 880).

Arkansas Code Annotated section 16-56-125(a) provides: “For the purposes of

tolling the statute of limitations, any person, firm, or corporation may file a complaint stating

his or her cause of action in the appropriate court of this state, whenever the identity of the

tortfeasor is unknown.” In order for a party to avail itself of the John Doe statute, the party

must also meet the requirements of Rule 15(c) of the Arkansas Rules of Civil Procedure.

See Harvill v. Cmty. Methodist Hosp. Ass’n, 302 Ark. 39, 46, 786 S.W.2d 577, 581 (1990).

Rule 15(c) provides:

(c) Relation Back of Amendments. An amendment of a pleading relates back to the
date of the original pleading when:

(1) the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading, or

(2) the amendment changes the party or the naming of the party against whom a
claim is asserted if the foregoing provision (1) is satisfied and, within the period
provided by Rule 4(i) for service of the summons and complaint, the party to be
brought in by amendment (A) has received such notice of the institution of the action
that the party will not be prejudiced in maintaining a defense on the merits, and (B)
knew or should have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against the party.

Below and on appeal, Grider and Greenlee cited Stephens v. Petrino, supra, in support

of their argument that Freeman’s action was barred by the statute of limitations. They

suggest that “the situation in Stephens mirrors that presented in the present case” because

their identity was known, and Freeman could not avail herself of the John Doe statute.

6
While we disagree that Stephens mirrors the situation in the present case, a

determination of whether the John Doe statute applies is unnecessary because, even

assuming it does, Freeman failed to meet the requirements of Rule 15(c).

The purpose of Rule 15(c) is to avoid the dismissal of an amendment on technical

grounds if the defendant received notice of the litigation within the time provided for by

the rule. Bennett v. Spaight, 372 Ark. 446, 453, 277 S.W.3d 182, 188 (2008). In order for a

party to avail itself of Rule 15(c)’s relation-back provision, the facts must show four things:

(1) the claim must have arisen out of the conduct set forth in the original pleadings; (2) the

party to be brought in must have such notice of the institution of the action that it would

not be prejudiced in maintaining a defense on the merits; (3) the party must have known,

or should have known, that but for a mistake concerning the identity of the proper party,

the action would have been brought against it; and (4) the second and third requirements

must have been fulfilled within 120 days of the filing of the original complaint. Id.

There is no dispute that Freeman’s claim against Grider and Greenlee arose out of

the same conduct set forth in the original complaint. However, the parties have differing

opinions on the remaining requirements. Freeman asserts that Grider and Greenlee had

notice of the action from the time of the original filing because they were members of her

treatment team acting within the course and scope of their employment with CRMC. She

also points to the fact that as employees, CRMC provided for their legal defense. Based on

these facts, Freeman argues that Grider and Greenlee received notice such that they are not

prejudiced. Freeman also contends that Grider and Greenlee knew or should have known

that their omission from the complaint was a mistake of identity as to the proper party.

7
Grider and Greenlee argue that Freeman’s reasoning that they had notice of the

lawsuit because they were on the treatment team would suggest that anyone who had

contact with her at CRMC was on notice that they were intended defendants, whether or

not they had actual notice. Additionally, they state that the failure to name them was not a

“mistake of identity.”

Neither side cites cases in support of their arguments; however, the facts and

reasoning in Bennett v. Spaight, 372 Ark. 446, 277 S.W.3d 182, are instructive. There,

Bennett filed a complaint against Dorothy Spaight, arising from a car accident in which her

son, Cedric Spaight, was driving her car. Initially, Bennett filed the complaint solely against

Dorothy. Bennett eventually filed an amended complaint naming both Dorothy and Cedric;

however, Bennett later dismissed Dorothy. Cedric filed a motion for judgment on the

pleadings alleging in part that the complaint was time-barred. Bennett responded that service

to Dorothy at the family home gave notice to Cedric that the complaint had been filed.

The circuit court granted the motion finding that Bennett failed to amend her complaint

within the 120 days required for service. In affirming, the supreme court explained:

Here, there was simply no evidence that Cedric had notice of the suit within
the required time frame. Instead, Ms. Bennett asks us to infer from the facts, or
assume, that because Dorothy and Cedric resided together as mother and son, he had
either actual or constructive notice of the action within the 120-day period. That we
will not do. As we have previously held, for Ms. Bennett to avail herself of the
provisions of Rule 15(c), the facts must show that Cedric had such notice that he would
not be prejudiced in defending against the suit. They do not. We simply cannot
presume that because two persons live together or may be related that one’s
knowledge of an action has been conveyed in some fashion to the other. Because the
notice requirement was not met, Ms. Bennett was unable to avail herself of Rule
15(c)’s relation-back doctrine, and the circuit court did not err in dismissing her
complaint. Accordingly, we affirm.

Bennett, 372 Ark. at 455–56, 277 S.W.3d at 189–90 (footnotes omitted).

8
As in Bennett, the facts in this case fail to show that Grider and Greenlee had timely

notice such that they would not be prejudiced in defending against the suit. The amended

complaint, although filed within the 120 days required by the rule, was answered outside

the 120 days, and there are no other facts indicating they had timely notice. In fact, the

record contains only the return of summons for Greenlee, which indicates she was served

in October 2018, well after the 120 days. Just as in Bennett, Freeman asks us to infer from

the facts that Grider and Greenlee had notice because CRMC had notice. For Freeman to

avail herself of the provisions of Rule 15(c), the facts must show that Grider and Greenlee

had such notice that they would not be prejudiced in defending against the suit. Based on

the reasoning in Bennett, we cannot presume that Grider and Greenlee had notice because

their employer had notice. Therefore, we affirm the order dismissing Freeman’s complaint

against Grider and Greenlee.

Freeman also appealed the order granting summary judgment to CRMC; however,

she has not pursued this argument in her brief outside of a conclusory statement. We do not

address arguments that are not supported by convincing argument or authority. Watkins v.

Paragould Light & Water Comm’n, 2016 Ark. App. 432, at 11, 504 S.W.3d 606, 613.

Affirmed.

ABRAMSON and KLAPPENBACH, JJ., agree.

McKissic & Associates, PLLC, by: Gene E. McKissic, Sr., for appellant.

Friday, Eldredge & Clark, LLP, by: Tyler D. Bone, for appellees.

9