Page:Aka v. Jefferson Hospital Association, Inc.pdf/19

Rh   was wearing is an issue for the jury to resolve. We agree. Genuine issues of material fact remain unresolved regarding whether Dr. Washington acted as a private practitioner or as an uninsured state employee.

First, appellant offered evidence that Dr. Washington had been selected through appellant's health-insurance carrier as Mrs. Aka's private obstetrician. Other testimony indicated that Dr. Washington was on call for Dr. Orange pursuant to a contractual arrangement, and Dr. Orange was identified on the patient's chart as the physician ordering the induction procedure. Moreover, testimony indicated that Dr. Washington was not initially contacted by a resident, per her state obligation, but by a nurse. Appellant argues that Dr. Washington treated Mrs. Aka as an UAMS/AHEC patient only after talking with Dr. Orange and concluding that Mrs. Aka was not a private patient. At that point, Dr. Washington canceled the c-section. Thus, the record lends support to appellant's theory that for some period of time Dr. Washington may have been unaware of what hat she was wearing. This, of course, creates a fact question for the jury.

[18, 19] In considering the trial court's decision, we have held that the standard is not whether evidence is sufficient to compel a conclusion on the part of the fact-finder but whether there is evidence sufficient to raise a fact issue. See Wallace v. Broyles, 322 Ark. 189, 961 S.W.2d 712 (1998). Here, appellant presented evidence sufficient to raise a factual issue regarding Dr. Washington's role as a state employee or private practitioner. Viewing the evidence in the light most favorable to appellant and resolving any doubts against Dr. Washington and Erma Washington, M.D., and Associates, P.A., we cannot say that summary judgment was warranted. Accordingly, we reverse the trial court's order granting summary judgment.

A. Exclusion of autopsy photograph and related testimony
[20, 21] Appellant next challenges the trial court's decision to exclude an autopsy photograph and Dr. Frank Peretti's related testimony. The decision to admit evidence is within the trial court's discretion. On appeal, we will not reverse a trial court's ruling on the admission of evidence absent an abuse of that discretion nor will we reverse absent a showing of prejudice. Misskelley v. State, 323