Stecker v. First Commer. Trust Co.

962 S.W.2d 792 (1998)

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Nature of the Case

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Facts

In the first trial, D was found not liable for civil penalties prescribed under the child-abuse-reporting statute, and she was awarded a directed verdict on the medical malpractice claim because the only medical expert witness sought to be presented by P was found not to be qualified to testify as to the standard of medical care concerning child abuse in Hot Springs. The appeals court reversed and remanded for a new trial on the medical malpractice claim, holding it was error to have excluded the testimony of Dr. Frederick Epstein, the expert medical witness whose testimony P sought to introduce on behalf of the estate. D treated Laura Fullbright on several occasions prior to the child's death. On a second visit, D noticed a visible angulation of one of the baby's arms, and she pointed the problem out to Ms. Robbins and Mr. Rank. There was a fracture of two bones in the child's left forearm. Ms. Robbins and Mr. Rank indicated that they did not know that there was a problem. D became concerned about the possibility of neglect or abuse. D referred Laura to Dr. Robert Olive, an orthopedist. After seeing the x-rays as well as the child and her mother, Dr. Olive wrote D that he did not think that there was any evidence of neglect on the part of the parents. D did not confront Ms. Robbins or Mr. Rank about her suspicions, nor did she contact the baby's father, Jim Fullbright, about her suspicions, or report her suspicions to any law enforcement agency. D again examined Laura. Her notes reflect that the family had observed that the child was 'wobbly' and running into things. D diagnosed the problem as ataxia or dizziness and concluded that the child had been drinking too much juice. D also knew that the symptoms were consistent with other possibilities, including head trauma. Two weeks later Laura was brought to the clinic with both eyelids swollen, and Ms. Robbins reported that the bruises were a result of the child falling down several stairs. D was not present. D's husband saw the baby. It was recorded that child had been nauseated the previous day and had vomited that morning. When she awoke, there was swelling on the right side of the head in the temple area and over the right eye. The next day, D saw the child and both eyelids were swollen, and Ms. Robbins reported that the child had fallen down several stairs. D discussed the possibility of abuse with Ms. Robbins who denied all allegations. D again considered reporting her suspicions of child abuse to the authorities; however, she did not. On September 12, 1991, Ms. Robbins returned home from work and found Laura, whom she had left in the care of Mr. Rank, unconscious. She took the child to St. Joseph's Regional Medical Center in Hot Springs. Laura was transported to Arkansas Children's Hospital in Little Rock, where she was later pronounced dead. The medical examiner determined that the cause of death was homicide. The jury found against D. D appealed.