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Paulino v QHG of Sppringdale, Inc.

Case No. 11-26 (AR S.Ct., Feb. 9, 2012)

The instant appeal involves an action filed by appellants Theresa Paulino and Eddie Paulino, husband and wife, against appellees QHG of Springdale, Inc., d/b/a Northwest Medical Center and Northwest Arkansas Hospitals, LLC, d/b/a Northwest Medical Center (collectively, NMC) for negligent credentialing and negligent retention. The circuit court granted summary judgment in favor of NMC. We affirm.

The facts are these. On November 17, 2006, Dr. Cyril Raben performed a cervical diskectomy and fusion surgery on Mrs. Paulino’s spine. A follow-up scan showed failure of the fusion in the C6–7 region and that two screws used to hold medical hardware in place were backing out or shifting out of place. After looking at these scans, Dr. Raben recommended that Mrs. Paulino schedule a second surgery to remove the medical hardware and replace it with newer hardware. According to the Paulinos, the purpose of the second surgery was to replace the medical hardware, remove bone spurs, and attempt to fuse the region where the earlier fusion had failed.

The second surgery occurred on December 17, 2007. After the surgery, Mrs. Paulino complained of extreme pain in her neck and shoulders and told the nurses that she could not feel anything below her chest. A CT scan was performed on Mrs. Paulino’s cervical spine, and the radiologist found that part of the medical hardware replaced by Dr. Raben was extending into the spine’s central canal and was likely contributing to the impingement of Mrs. Paulino’s spinal cord. The radiologist also found that a bone was extended into the epidural space approximately five to seven millimeters. After reviewing the CT scan, Dr. Raben performed a third surgery on Mrs. Paulino. The third surgery was also performed on December 17, 2007. After that surgery, Mrs. Paulino could barely move her arms, had pain in her neck, and could not feel her legs. At the time the appeal was filed, Mrs. Paulino remained unable to walk.
 

 

Judge(s): Robert L. Brown
Jurisdiction: Arkansas Supreme Court
Related Categories: Employment , Expert Witness , Malpractice , Torts
 
Supreme Court Judge(s)
Karen Baker
Robert Brown
Donald Corbin
Paul Danielson
Jim Gunter
Jim Hannah

 
Trial Court Judge(s)
Mark Lindsay

 

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may be responsible for the negligence of an independent contractor, if the employer has remains whether arkansas should recognize negligent credentialing as a new brand of independent contractor instead of aim. diamond equip. & supply co., 362 ark. 142, 154, 207 s.w.3d 525, 534 (2005). no. 11-26 provisions.2 such surgeries. the paulinos contended that nmc's credentialing policies and its minnesota should recognize a cause of action for negligent credentialing. id. at 303. in knew or, through the exercise of ordinary care, should have known that its employee's the second surgery occurred on december 17, 2007. after the surgery, mrs. paulino outrage or punitive damages, and it dismissed all claims concerning richard, because nmc opinion delivered february 9, 2012 (aim). the paulinos maintained their claims for medical negligence against dr. raben and with regard to the tort of outrage, we agree with the circuit court that the facts service, doctor's treatment or order, or a matter of medical science related to specific patient tort. we have said that we are especially averse to creating a new tort that would only lead negligent credentialing, negligent selection, negligent retention, lack of informed consent, case, the fifth amended complaint, asserted claims against nmc, john doe 1, john doe 2, occasions. id., 631 s.w.2d at 271. as a result, his doctor authorized use of a restraint vest were backing out or shifting out of place. after looking at these scans, dr. raben we decline to recognize a cause of action for negligent credentialing, we need not address injury." ark. code ann. 16-114-202 (repl. 2006); see also pastchol v. st. paul fire & was outside the doctor's treatment and provision of services. 336 ark. 534, 541, 986 s.w.2d supplemented on denial of reh'g, 294 ark. 275, 745 s.w.2d 140 (1988) ("in the absence of an credentialing. the circuit court did not give its reasoning for that conclusion in its order. knew or, through the exercise of ordinary care, should have known that the employee's rule is that an employer is not responsible for the negligence of his or her independent complied with the standard of care and questioned how a jury could make an intelligent a cause of action for either ordinary negligence or another tort, the failure to state a claim for region where the earlier fusion had failed. 16 essex, 341 ark. 558, 563, 19 s.w.3d 585, 589 (2000) (finding that this court gives a narrow conduct would subject third parties to an unreasonable risk of harm. saine, 354 ark. at 497, december 17, 2007. after that surgery, mrs. paulino could barely move her arms, had pain situation for a plaintiff. dowty v. riggs, 2010 ark. 465, ___ s.w.3d ___ (citing rees v. smith, robert l. brown, associate justice was killed when he left the nursing home unnoticed in his wheelchair and was subsequently or at common law. the paulinos urge, in the alternative, that arkansas should recognize a county skilled nursing facility, inc., 345 ark. 555, 567, 49 s.w.3d 107, 115 (2001). in order nmc was liable for negligence in employing her. verdict in favor of the hospital, because the estate failed to present evidence of the degree of patient but that the complaint had stated a cause of action for outrage. mcquay, 336 ark. court determined that nmc was immunized under the hqia and that no exceptions s.w.3d 886, 89091 (2006). the circuit court in its order for summary judgment concluded in addition to negligent supervision of an employee by an employer, and negligent 12 cite as 2012 ark. 55 nurse, and aim. according to the second amended complaint, richard negligently failed court held that the patient had suffered a "medical injury," and so the estate could file a this court has discussed the parameters of "medical injury" in several of our cases. the course of such services. trust, 345 ark. at 568, 49 s.w.3d at 115 (citing sparks reg'l med. ctr. v. smith, 63 ark. app. negligence, but not medical malpractice, and so the statute of limitations for ordinary- decision about a hospital's credentialing decisions when arkansas's peer review statute 131, 976 s.w.2d 396 (1998) (rejecting a claim for negligent supervision of an employee that a cause of action for negligent credentialing does not exist in arkansas. in addition, the claim against nmc. negligent credentialing does not fall squarely within the parameters of and/or john doe 3. the causes of action asserted were negligence, corporate negligence, the issue of whether a cause of action for negligent credentialing is a new tort or one s.w.2d 270 (1982). in sexton, a mentally confused eighty-one-year-old man was admitted and the radiologist found that part of the medical hardware replaced by dr. raben was 126 s.w.3d at 342. 631 s.w.2d 270. cite as 2012 ark. 55 new tort for negligent credentialing, using the analysis set out in larson v. wasemiller, 738 where the employee was a newly hired and untrained nurse's aide who sexually assaulted an amended their complaint a total of five times. in the second amended complaint, they they subsequently filed two more amended complaints. the final complaint in this punitive relief. bell v. mcmanus, 294 ark. 275, 277, 742 s.w.2d 559, 560, opinion independent contractor when the employer was negligent in hiring the contractor."); gordon to state a claim for negligent hiring, the plaintiff must show (1) that an inadequate bring negligent-credentialing claims because this contention was not made below. it is well injury." wyatt v. st. paul fire & marine ins. co., 315 ark. 547, 868 s.w.2d 505 (1994) the use of a restraint vest on a patient constituted a professional service. 275 ark. 361, 631 orthopedic surgery in 1998, although the complaint alleged that he was never credentialed the instant appeal involves an action filed by appellants theresa paulino and eddie injuries was nmc's decision to credential dr. raben. as a final point, they asserted that, 2009. the paulinos opposed removal and moved to remand, which the federal court granted alleged that a clinic negligently allowed a romantic affair to continue between its receptionist raben's privileges at nmc. of action exists against nmc under the arkansas medical malpractice act or in arkansas's granted summary judgment in favor of nmc. we affirm. process to assure that health services are being performed in accordance with the appropriate cite as 2012 ark. 55 s.w.2d at 271. there was no discussion about the employment relationship between the negligence, error, or omission in the performance of such services; or from rendition outrage requires a higher burden of proof than mere negligence. see crockett, 341 ark. 558, specific patient. because of this, we hold that the circuit court did not err in determining from these decisions, we can determine that in order to constitute a "medical injury" 5 of richard, arguing that richard was an independent contractor of nmc. malpractice). this court has also held that there was no "medical injury" where a patient judge cite as 2012 ark. 55 extending into the spine's central canal and was likely contributing to the impingement of 4 for all of these reasons, the order of summary judgment is affirmed. cite as 2012 ark. 55 interpreting the hqia to provide immunity to nmc, that the circuit court interpreted the ark. code ann. 16-114-201(3). not confer a cause of action for negligent credentialing. the circuit court also found that it standard of care. ark. code ann. 20-9-501(2)(a). in general, ordinary decisions by an supreme court of arkansas care. should use to analyze whether negligent credentialing should be recognized as a tort in alleged that aim was "an employer of richard and was vicariously liable for her negligence." of action for negligent credentialing, however, does not end the inquiry. the question in addition, since we find no direct negligence on the part of nmc due to its appellants paulinos added a plea for declaratory judgment and damages and sought to revoke dr. those negligence torts currently recognized in arkansas such as negligent hiring, negligent that negligent credentialing was not a cognizable claim under either the medical malpractice award for damages for the underlying cause of action, punitive damages are improper."). court found that there was no "medical injury" involved with the improper fondling of a performing cervical corpectomies and that nmc knew he was not competent to perform asserted new claims against three new defendants: qhg of springdale d/b/a northwest cases). each of these theories of recovery, the employer's liability rests upon proof that the employer that a proper background check would have revealed that the employee was not qualified place him in a vest. id., 631 s.w.2d at 271. because only a doctor could authorize the use 16-114-201(1) (repl. 2006). a medical care provider includes a hospital. ark. code ann. the paulinos urge on appeal that the circuit court erred in finding that arkansas does several months later, his estate sued the hospital, alleging that it was negligent for failing to treatment, this court has consistently rejected claims that an injury constituted a "medical alleged that nmc negligently credentialed dr. raben. in support of this claim, the paulinos the paulinos filed their first complaint against dr. raben and his employer, arkansas marine ins. co., 326 ark. 140, 144, 929 s.w.2d 713, 714 (1996). under the act, an action have also said recently that we will decline to recognize a new cause of action if there are northwest medical center nmc's claim of immunity under the arkansas peer review statute or the federal hqia. mrs. paulino's spinal cord. the radiologist also found that a bone was extended into the of aim. accordingly, we reject their contention that she should be considered the 18, 817 s.w.2d at 414. we held that this was error, because there was no "medical injury." 15 631 s.w.2d at 271. no vest was ever placed on the patient during his stay. id., 631 s.w.2d 342 ark. 143, 150, 27 s.w.3d 387, 391. we affirm the circuit court on this point. because every two years. the complaint further alleged that nmc knew that dr. raben was negligence against nmc relating to nmc's oversight of dr. raben and richard. the this court historically treads cautiously when deciding whether to recognize a new (holding that the statute of limitations applicable to negligence actions applied, not the gave arkansas model jury instruction 1501 to the jury, regarding "medical injuries." id. at cite as 2012 ark. 55 alleged, and particularly the absence of a causative link between nmc and the injury to mrs. the facts are these. on november 17, 2006, dr. cyril raben performed a cervical 2 cite as 2012 ark. 55 the federal healthcare quality improvement act (hqia) that protects hospitals in contemplates a direct cause of action against nmc due to the fact that nmc is not entitled background check and the criminal act for which the plaintiff is attempting to hold the cite as 2012 ark. 55 recognized in arkansas. they added that arkansas's peer review statute did not immunize lawsuit against the hospital under the medical malpractice act, we affirmed the directed the context of the core cause of action. goff v. harold ives trucking co., inc., 342 ark. 143, negligence under its common law. in bailey, this court held that no "medical injury" was the fact that we conclude that the medical malpractice act does not confer a cause v. in her neck, and could not feel her legs. at the time the appeal was filed, mrs. paulino hospitals, llc, d/b/a the fusion in the c67 region and that two screws used to hold medical hardware in place at 537, 986 s.w.2d at 851. these cases graphically illustrate that where a complaint states hiring of an independent contractor, the paulinos rely on cases recognizing a cause of action these causes of action in negligence brought directly against an employer for breach nwa spine clinic but added claims for medical negligence against richard, the monitoring independent contractor, aim, and not an independent contractor herself. thus, nmc in bailey v. rose care center, for example, an eighty-nine-year-old nursing-home resident on the causes of action relating to richard, arguing that she was the employee of an provides a hospital with a "privilege" for those decisions. accordingly, the court concluded on july 8, 2010, nmc moved for summary judgment and contended that no cause of a restraint vest, this court held that it required the expert judgment of a healthcare negligence" against a hospital for violation of a duty owed to its patients that should be "as needed for safety" but allowed the nurses to make the final decision regarding use. id., by its terms, the medical malpractice act applies to all causes of action for "medical the paulinos responded and asserted that negligent credentialing was recognized credentialing, it would be contrary to that decision to find that outrage did occur, when basis for summary judgment was that the paulinos could not meet their burden of proof he was in the hospital, and the nurses found him trying to climb out of bed on several complacency in allowing dr. raben to perform surgeries for which he was not credentialed arkansas. see larson, 738 n.w.2d 300 (minn. 2007). the issue in larson was whether provider and constituted a professional service. id. at 363, 631 s.w.2d at 272. although this and her husband. howard v. ozark guidance ctr., 326 ark. 224, 225, 930 s.w.2d 341 (1996) to immunity as part of the peer review committees under the statute relating to discovery and appellees dr. raben and nwa spine clinic were dismissed from the litigation after reaching (2) a doctor's treatment or order, or (3) a matter of medical science. howard, 326 ark. at 14 the paulinos also asserted a claim for negligent credentialing against nmc and a claim for medical injury means "any action against a medical care provider, whether based in tort, 19 s.w.3d 585. finally, without an award of compensatory damages, there is no basis for employer liable. see porter v. harshfield, 329 ark. 130, 948 s.w.2d 83 (1997); see also saine in this complaint the parties making up nmc were named as the defendants. the paulinos likewise, the paulinos assert that negligent credentialing is a natural extension of the to duplicative litigation and encourage inefficient relitigation of issues better handled within limitations provision for medical-malpractice actions). in, or the natural extension of, a well-established common-law right. id. at 304. because we background check was done or there was the complete absence of a background check; (2) the proper standard of care was an ordinary-negligence standard. bailey, 307 ark. at 19, 817 addition to one for "medical injury" under the medical malpractice act, as the basis for their 11 cite as 2012 ark. 55 paulinos did not rise to the level required. nmc, similarly, moved for summary judgment a party with another remedy against a hospital premised on physician credentialing. see goff, four-part analysis, the first part being whether the tort of negligent credentialing was inherent undertaken to perform certain duties or activities and negligently fails to perform them involved in the case of the escaping patient, and, therefore, the heightened standard of care 2009 ark. 169, 301 s.w.3d 469). although richard was an employee of aim, she was also an independent contractor and that that arkansas's medical malpractice act does not confer a cause of action for negligent because they could not prove two essential elements of a negligence action, which are in the same vein, in mcquay v. guntharp, we held that a physician's act of fondling cite as 2012 ark. 55 was the job of a hospital's peer review committee to determine whether doctors have cite as 2012 ark. 55 view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage annotated section 17-95-107 provides access to credentialing information by patients who and punitive damages. they also challenge the dismissal of all claims concerning nmc's use causation element of their claim incorrectly, and that they properly stated a claim for outrage statutory safeguards. nor do we agree with the paulinos that arkansas's peer review statute hospital's decision to credential a physician. for one thing, the credentialing decision, at least contended that it could not be held liable for negligent hiring, supervision, or retention of settled that we will not address arguments raised for the first time on appeal. jordan v. standard of care and causation. nmc contended that it was entitled to summary judgment nmc's governing board for credentialing decisions, because it only protects hospital medical immobile, semicomatose female patient, because there was no notice that the employee nmc sought to remove the case from state court to federal court on december 18,1 federal hqia did not immunize credentialing decisions, because it carved out an exception of such services without informed consent or in breach of warranty or in violation of in the instant case, part of the basis for nmc's motion for summary judgment was that falls within the ambit of the medical malpractice act is an issue of law. a circuit court's employer to hire an employee or independent contractor are not subject to any similar for negligent hiring or retention of an employee. from our caselaw, it appears that in order surgery was to replace the medical hardware, remove bone spurs, and attempt to fuse the applied, because negligent credentialing is not part of a negligent treatment or care claim. remained unable to walk. a female patient during a medical exam did not constitute a "medical injury" because the act of the duty of ordinary care owed to third parties seem categorically different from a any adverse consequences arising out of or sustained in the course of the professional a cause of action for negligent credentialing, nmc would still be entitled to summary at 271. he fell again, fracturing his hip and shoulder. id., 631 s.w.2d at 271. when he died 503(a)(1). rather, we find that no direct cause of action is contemplated by the immunity contract; or from failure to diagnose; or from premature abandonment of a patient or not recognize a cause of action for negligent credentialing under the medical malpractice act to the nevada county hospital. id. at 362, 631 s.w.2d at 271. he fell several times while enunciated in the medical malpractice act did not apply. instead, this court observed that feel anything below her chest. a ct scan was performed on mrs. paulino's cervical spine, epidural space approximately five to seven millimeters. after reviewing the ct scan, dr. spine and orthopedic association, llc (nwa spine clinic) and alleged that dr. raben 151, 27 s.w.3d 387, 391 (2000) (citing trevino v. ortega, 969 s.w.2d 950 (tex. 1998)). we county circuit court, negligence actions applied. wyatt, 326 ark. at 228, 930 s.w.2d at 343. in mcquay, this on the paulinos' claim of outrage and for punitive damages because the facts alleged by the qhg of springdale, inc., d/b/a act or at common law. reviewing the pleadings, it is clear to this court that the paulinos that surgery. the paulinos also requested punitive damages.1 "medical injury" under the medical malpractice act may not be fatal. under the medical malpractice act, the injury must be the result of (1) a professional service, the paulinos rely primarily on larson v. wasemiller to provide a framework this court contract, or otherwise, to recover damages on account of medical injury." ark. code ann. see 42 u.s.c. 11115(d). the circuit court ultimately agreed with nmc that the paulinos could not show causation, because mrs. paulino--not nmc--selected dr. raben to thereafter or perform them in a negligent manner). judgment based on the immunity granted to it under the arkansas peer review statute and as a "medical injury" due to the fact that credentialing decisions do not involve a professional because the instruction included the wrong standard of care. id. at 19, 817 s.w.2d at 415. (collectively, nmc) for negligent credentialing and negligent retention. the circuit court and outrage. all of the negligence counts related to nmc's negligently permitting dr. of a course of treatment; or from failure to properly maintain equipment or appliances independent contractors. nmc added in its motion that, were the circuit court to recognize accordingly, instructing the jury on ami civ. 1501 was prejudicial and likely misleading, in their third amended complaint, the paulinos pled several causes of action based in 6 tort of negligent hiring of an independent contractor, another tort recognized in arkansas. maintained that they could prove causation, because the proximate cause of mrs. paulino's statute. see ark. code ann. 20-90-501 to -503 (repl. 2005). thus, a statutory system hospital and the doctor authorizing use of the restraint vest. 9 moreover, nmc would not be liable for the tort of an employee of an independent against aim for the negligent hiring, supervision, and training of richard. act by the employee, there was a direct causal connection between an inadequate northwest medical center to recover under a theory of negligent supervision, a plaintiff must show that an employer affirmed. appeal from the washington raben performed a third surgery on mrs. paulino. the third surgery was also performed on paulino based on negligent credentialing, did not rise to the level of outrage. see crockett v. on february 10, 2010. we hold, in short, that we do not find it necessary to create a new tort in order to provide complained of extreme pain in her neck and shoulders and told the nurses that she could not cite as 2012 ark. 55 was negligent and that his employer was vicariously liable for that negligence. the paulinos 850, 853 (1999). revealing confidential information also does not constitute a "medical the paulinos urge that negligent credentialing is akin to the tort of negligent 3 deciding whether to recognize a common law tort, the minnesota supreme court used a honorable mark lindsay, injury" when the injury did not originate with a doctor's order. compare bailey, 307 ark. (holding that a breach of patient-doctor confidentiality is an action in negligence, not is in place for the initial and ongoing review of competency as part of the credentialing s.w.2d at 41415. likewise, in wyatt, this court found that breach of confidentiality was ("[a]n employer may be held liable for the conduct of a careless, reckless, or incompetent have alleged a cause of action for negligence under the rubric of negligent credentialing, in cite as 2012 ark. 55 see stoltze v. ark. valley elec. co-op. corp., 354 ark. 601, 607, 127 s.w.3d 466, 470 (2003) 8 affirmed. necessary to the rendition of such services; or otherwise arising out of or sustained in retention, negligent supervision, or negligent hiring of an independent contractor. the issue, medical center and northwest arkansas hospitals, llc, d/b/a northwest medical center or competent to perform led to their damages. supervision of employees, which is recognized in arkansas. see regions bank & trust v. stone we are precluded from addressing the paulinos' contention that arkansas code2 recognize a direct cause of action against nmc specifically related to negligent credentialing for state-law malpractice claims based on a provider's negligent treatment or care. they 228, 930 s.w.2d at 343. although the injury to mrs. paulino was the result of a doctor's therefore, becomes whetherthis court should extend its current negligence jurisprudence and struck by a pickup truck. 307 ark. 14, 1516, 817 s.w.2d 412 (1991). the circuit court richard. medical center; melanie richard, r.n.; and american intraoperative monitoring, llc conclusions of law are not given deference on appeal. hill v. kelly, 368 ark. 200, 207, 243 paulino, husband and wife, against appellees qhg of springdale, inc., d/b/a northwest v. matson, 246 ark. 533, 536, 439 s.w.2d 627, 629 (1969) (recognizing that an employer diskectomy and fusion surgery on mrs. paulino's spine. a follow-up scan showed failure of posed such a danger and the act was not foreseeable)). 16-114-201(2). a "medical injury" is defined as for the position for which he or she was hired; and (3) that if the claim is based on a criminal in the case at hand, the decision to credential dr. raben was not, at its genesis, a cite as 2012 ark. 55 14, 817 s.w.2d 412, and wyatt, 315 ark. 547, 868 s.w.2d 505, with sexton, 275 ark. 361, 7 goodson, j., not participating. theresa enuart paulino and asserted that nmc first credentialed and granted privileges to dr. raben to perform under arkansas's medical malpractice act, because it was a "medical injury." they further specifically, the circuit court found that, as a matter of law, the medical malpractice act did other sufficient avenues, short of creating a new cause of action, that serve to remedy the nevertheless, we agree. contended that negligent credentialing was a "long-recognized theory of recovery for direct introduction of documents and testimony into evidence. see ark. code ann. 20-9- and replace it with newer hardware. according to the paulinos, the purpose of the second contractor."). the paulinos acknowledged in their complaint that richard was an employee cite as 2012 ark. 55 contractor like richard. see, e.g., stoltze, 354 ark. at 607, 127 s.w.3d at 470 ("the general eddie paulino conduct would subject third parties to an unreasonable risk of harm. see regions bank & the circuit court granted summary judgment to nmc on all of the paulinos' claims. decision to pursue a method of treatment, care, or course of medical action relating to a recommended that mrs. paulino schedule a second surgery to remove the medical hardware connection with credentialing and privileging. nmc further asserted that a third alternative common law for negligent credentialing or corporate negligence with respect to court next found that the facts alleged were insufficient to support a cause of action for to perform cervical corpectomies. since that time, nmc had re-credentialed dr. raben was not her employer. to communicate the loss of lower-extremity response to dr. raben. the complaint further settlement. after these parties were dismissed, the paulinos filed a third amended complaint. on the other hand, in sexton v. st. paul fire & marine ins. co., this court found that raben to perform surgery on mrs. paulino and negligently permitting richard to monitor a settlement with the paulinos. richard and aim were likewise dismissed after reaching a and northwest arkansas 10 staff who are members of the peer review committee. furthermore, they claimed that the skill used by other hospitals in the same or similar locality as required. id. at 36263, 631 that the medical malpractice act does not confer a cause of action for negligent credentialing n.w.2d 300 (minn. 2007). they assert, in addition, that the circuit court erred in in the instant case, went through the process of peer review under the arkansas peer review [no. cv-08-3459-6] 13 perform the surgery and dr. raben had selected the hospital for the surgery. the circuit answer this question in the negative, we need proceed no further with the larson analysis. services being rendered by a medical care provider, whether resulting from v. comcast cablevision of ark., inc., 354 ark. 492, 501, 126 s.w.3d 339, 345 (2003). under cite as 2012 ark. 55 and the harm done to mrs. paulino.


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