Date: 05-10-2001

Case Style: Holt v. Dr. Dan Taylor Walker

Case Number: 00-817

Judge: Robert L. Brown

Court: Supreme Court of Arkansas

Plaintiff's Attorney: Unknown

Defendant's Attorney: Unknown

Description: On April 30, 1996, Sheryl Holt was a patient of Dr. Wagner, and she had elected to have Dr. Wagner perform gallbladder surgery on her. On that date, Dr. Wagner ordered a routine chest x-ray exam prior to surgery. The x-ray was performed by Dr. Donald A. Harper, and the reportfollowing the x-ray made reference to a "right apical mass, infiltrate and/or plural thickening[,]" which is an abnormal condition. It was recommended in the report that if previous x-rays were available, they be obtained for comparison purposes or if not, that a chest CT scan be performed. Neither action was taken.

On May 2, 1996, Dr. Wagner performed the gallbladder surgery on Sheryl Holt. Dr. Wagner did not recall seeing the x-ray report or communicating its findings to her. In October 1996, Mrs. Holt was diagnosed with lung cancer, and ultimately died due to that condition on February 5, 1998.

On April 28, 1998, Holt sued Dr. Wagner.

Dr. Wagner moved for summary judgment and alleged that the undisputed evidence showed that he had committed no acts of negligence which could be a proximate cause of the injuries allegedly sustained by Sheryl Holt, or her death. In his response, Mr. Holt responded that he was suing Dr. Wagner "for medical malpractice for the deceased's lost chance of survival" and Dr. Wagner had deprived Mrs. Holt "of at least a forty percent (40%) chance of survival[.]" The trial court, following a hearing, issued a letter opinion granting the summary-judgment motion.

As presented at the hearing on this Motion, it isundisputed that the decedent's, Sheryl Holt's, death was a result of her lung cancer. The Defendant may have committed an act of negligence in this case; but there is no evidence of any acts of negligence by Dr. Taylor Dan Wagner which could be a proximate cause of the decedent's death. The Plaintiff has stated that this is a case where the Plaintiff is asking that this court recognize a claim for "loss of chance of survival." However, this is a theory of recovery which has not been clearly established within the courts of Arkansas.* * *

Click here for the full text of the court's opinion.