Lead Opinion
Thе Court of Appeals certified this first-impression case for us to consider appellant’s arguments urging the reversal of precedent. Specifically, appellant asks this court to overrule our holding in Chatelain v. Kelley,
On September 6, 1996, appellant, Philip Aka, as the Special Administrator of the Estate of Evangeline Aka, appellant’s thirty-four-year-old wife and the mother of two children, and as the Special Administrator of the Estate of Baby Boy Aka, their unborn son, filed a medical-negligence complaint against Jefferson Hospital Association, Inc., d/b/a Jefferson Regional Medical Center (“JRMC”); Kimberly Garner, M.D., a licensed physician practicing at the UAMS/AHEC-Pine Bluff Residency Training Program at JRMC (“AHEC”); Erma Washington, M.D., a licensed obstetrician and gynecologist employed by Erma Washington, M.D., and Associates, P.A., with JRMC obstetricаl privileges; Betty Orange, M.D., a licensed obstetrician and gynecologist, also possessing JRMC obstetrical privileges; Randy Hill, M.D., a licensed physician practicing at AHEC; and Shane Higginbotham, M.D., a licensed physician practicing at AHEC. On July 28, 1997, appellant filed an amended complaint adding as named defendants St. Paul Fire & Marine Insurance Company, Inc., and three AHEC faculty supervisors, Herbert Fendley, M.D., William Freeman, M.D., and Harvie M. Attwood, M.D. Appellant filed his second amended complaint against appellees on November 20, 1998.
Essentially, appellant’s complaint alleged that the defendant doctors’ and institutions’ medical negligence in unnecessarily inducing his wife’s labor, fading to discontinue the induction, failing to perform a cesarean section, failing to resuscitate her or the unborn baby, and failing to obtain informed consent, proximately caused Mrs. Aka’s and her unborn son’s deaths. Appellant also averred that JRMC’s, AHEC’s, and AHEC’s faculty supervisors’ failure to train and supervise AHEC resident physicians proximately caused both deaths.
Background
On December 11, 1995, at approximately 7:00 p.m., Evangeline Aka was admitted for the induction of labor to the Family Practice Center, a resident-in-training program operated at JRMC by UAMS/AHEC pursuant to an “affiliation agreement.” As of 10:00 p.m. on December 12, twenty-seven hours after her admission, Mrs. Aka had failed to progress in labor. Consequently, Cheryl Jones, a registered nurse in JRMC’s labor and delivery department, telephoned Dr. Erma Washington at home. According to Jones, she notified Dr. Washington that although Dr. Betty Orange was listed on the patient’s chart as the “consult” and the physician authorizing Mrs. Aka’s induction, she believed that Dr. Orange was “on call” for Dr. Washington. She also reported that Dr. Orange had not seen the patient. In fact, Nurse Jones testified that she did not believe any attending obstetrical physician from the Family Practice Clinic had seen Mrs. Aka while Jones was tending her on the night of December 12, 1995.
According to Nurse Jones, Dr. Washington initially instructed her to prepare Mrs. Aka for a cesarean section. However, ten minutes after their first phone call, Dr. Washington called and canceled her orders for the c-section, directed the resident physicians to rupture the patient’s membrane, and ordered medication. Following those instructions, first-year resident Dr. Shane Higginbotham made multiple attempts to rupture Mrs. Aka’s membrane. At trial, Dr. Higginbotham acknowledged that if a patient, like Mrs. Aka, failed to progress in labor and was on Pitocin, a drug given to induce labor, the risk of needing a c-section increased. However, Dr. Higginbotham admitted that he lacked the technical skills to perform a c-section and could not have done so even had it been necessary to save Mrs. Aka and her baby. Dr. Higginbotham also related that between 7:00 and 10:00 p.m., he was the only Family Practice resident in the building working in obstetrics and that no doctor with c-section privileges was there to attend Mrs. Aka between 7:00 and 10:30 when he personally attempted to rupture her membrane.
After failing to rupture Mrs. Aka’s membrane, Dr. Higginbotham called Dr. Washington who told him to call a third-year resident physician, Dr. Randy Hill, for assistance. Dr. Hill also failed in his attempts to rupture Mrs. Aka’s membrane. Moreover, Mrs. Aka complained of mild dyspnea, shortness of breath, while the resident applied fundal pressure to place a fetal-scalp electrode. Apparently, the dyspnea resolved after the fundal pressure was relieved.
Approximately an hour-and-a-half later, Mrs. Aka complained of acute shortness of breath. According to Dr. Higginbotham, Mrs. Aka suffered respiratory distress and was “going into respiratory failure.” He also reported that when the “code” was called on Mrs. Aka, there was not a board-certified obstetrician in the labor-and-delivery suite, and no board-certified physician had been called to assist Mrs. Aka. Dr. Hill, as the senior resident physician, took over. Per Dr. Hill’s suggestion, Dr. Higginbotham “scrubbed” to prepare for a possible c-section. Dr. Washington arrived during the code, but no attempts were made to deliver the baby.
At approximately 1:15 a.m on December 13, 1995, Evangeline Aka, and her unborn son died at appellee-hospital JRMC. The autopsy denoted Mrs. Aka’s cause of death as “amniotic fluid embolism” and her unborn son was described in forensic pathologist Dr. Frank Peretti’s report as a “well-developed, well nourished,” “full term male infant” weighing eight pounds, fifteen' ounces with “[n]o evidence of congenital malformations, natural disease, trauma or infection.” Mrs. Aka’s November 30, 1995 obstetrical ultrasound report indicated that her fetal evaluation was complete and that she carried a full term “viable single intrauterine fetus” with”[n]o complication identified.”
Following the deaths of Mrs. Aka and her unborn son, appellant made a series of phone calls, including two answering-machine messages, to Drs. Washington and Orange. The doctors complained to the Pine Bluff police department and swore out warrants against appellant. Ultimately, appellant was prosecuted for terroristic threatening. However, following a two-day jury trial, he was acquitted of all criminal charges.
In response to appellant’s medical-negligence action, Dr. Washington and Erma Washington, M.D., and Associates, PA. filed a motion for partial summary judgment on the basis of governmental immunity from suit because Washington was a “part-time” twenty-five-pеrcent consultant for the AHEC residency-training program. However, Dr. Washington also engaged in a full-time private obstetrical practice. In part, Washington also contended that summary judgment was appropriate because she had no insurance coverage for her part-time work, and her state insurance coverage had been canceled.
The parties disagreed as to the nature of any legal relationship between Drs. Orange and Washington. At a minimum, Dr. Orange leased office space from Dr. Washington. However, some evidence suggested that Dr. Orange had a contractual agreement with Dr. Washington, and appellant claimed that Dr. Orange was actually an employee of Erma Washington, M.D., and Associates, P.A. For example, appellant insisted that Dr. Washington was actually on-call for Dr. Orange the evening Mrs. Aka died and was only contacted because Dr. Orange was identified on the patient’s chart as having authorized the induction. For her part, Dr. Orange admitted that she occasionally consulted with the AHEC resident physicians but conceded that she was not a state employee.
Consequently, appellant argued that Dr. Washington treated Mrs. Aka under the initial presumption that she was Dr. Orange’s private patient. Given appellant’s theory that Dr. Washington’s cancellation of the c-section procedure proximately caused the deaths of Mrs. Aka and her unborn baby, appellant maintained that the question of what “hat” Dr. Washington was wearing — state or private employee — remained a question for the jury. The trial court disagreed and dismissed both Dr. Washington and Erma Washington, M.D., and Associates, P.A. from the suit.
The remainder of the case was tried before a jury from January 28, 1999, to February 16, 1999. Following two days of deliberations, the jury returned a verdict in favor of all defendants. Appellant filed a motion for a new trial, which was denied on April 22, 1999. Aka then brought the instant appeal challenging: (1) the trial court’s order granting partial summary judgment against the estate of Baby Boy Aka pursuant to Chatelain v. Kelley,
Before addressing the merits of the instant appeal, we consider appellant’s pending motion to supplement the addendum. During preparation for oral argument, appellant discovered that copies of certain enumerated items were inadvertently omitted from the addendum, including the trial court’s April 22, 1999 order denying appellant’s motion for new trial and the second page of a transcript excerpt concerning the admissibility of an autopsy photograph. We recognize that appellant is not seeking to amend the addendum but to ensure that this court has complete copies of all items currently indexed. Accordingly, we grant appellant’s motion.
I. Partial summary judgment against Estate of Baby Boy Aka
A. Chatelain v. Kelley
The trial court granted partial summary judgment against the Estate of Baby Boy Aka on the basis of Chatelain v. Kelley,
In part, appellees counter Aka’s argument on procedural grounds. Specifically, appellees claim that we are barred from considering the merits of this point on appeal because Aka failed to designate the partial-summary-judgment dismissal in his notice of appeal. We reject appellees’ argument. Appellant’s notice of appeal stated that the appeal was taken from “the jury verdict returned February 17, 1999, in favor of the defendants, the Judgment filed March 8, 1999, pertaining to said verdict, and the Court’s Order filed April 22, 1999, denying Plaintiffs Motion for New Trial.” Significandy, Ark. R. App. P. — Civ. 2(b) (2000) provides that any appeal from “any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” In light of the foregoing, we find that appellant’s notice of apрeal was adequate to preserve appellate review of the trial court’s intermediate order dismissing the claims regarding the Estate of Baby Boy Aka.
We now address the merits of appellant’s argument. Given our strong reliance upon prior judicial decisions and legislative intent in deciding Chatelain, we must first reexamine that opinion’s underpinnings. In Chatelain, we discussed three specific cases presenting this court with the issue of whether a fetus was a legally recognized “person.” First, in Carpenter v. Logan,
Second, in Carpenter v. Bishop,
Relying on these cases, Carpenter, Bishop, and most heavily upon Meadows, the majority of this court concluded in Chatelain that a decision to include fetus in the definition of person would “create an inconsistency in the laws of this State by holding ‘person’ included viable fetus for the purpose of the wrongful death statute when we have reached the contrary conclusion in the criminal law and the law of probate.” Chatelain,
In response, the dissent criticized the majority for adopting a minority-jurisdiction rule that could lead to the illogical result of barring recovery for a stillborn child but not for one born alive. Id.,
As appellant and the amicus briefs point out, Chatelain invited a legislative response. Id.,
(13)(B)(i)(a) For the purposes of §§ 5-10-101 — 5-10-105 [“Homicide”], “person” also includes an unborn child in utero at any stage of development;
(b) “Unborn child” means a living fetus of twelve (12) weeks or greater gestation.
(ii) Exceptions. Subdivision 13(b) does not apply to:
(a) Acts which cause the death of an unborn child in útero if those acts were committed during a legal abortion to which the woman consented;
(b) Acts which are committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment; and
(c) Acts which are committed in the course of medical research, experimental medicine, or acts deemed necessary to save the life or preserve the health of the mother.
Ark. Code Ann. § 5-1-102(13)(B)(i), (ii) (Supp. 1999).
Given this аmended definition of “person,” the legislature plainly affords protection to unborn viable fetuses
The people’s passage of Amendment 68 in 1988 reflected the stated public policy of Arkansas. Amendment 68 declares that “[t]he policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.” Ark. Const, amend. 68, § 2 (emphasis added). We are mindful that the federal courts enjoined the enforcement of Amendment 68 and held it unconstitutional because its provision that no public funds will be used to pay for abortions except to save the life of the mother violated the 1994 Hyde Amendment. See Ark. Const, amend. 68, § 1; Little Rock Family Planning Servs. v. Dalton,
However, the United States Supreme Court reversed the Eighth Circuit and held that Amendment 68 could be enjoined only to the extent that it imposed obligations inconsistent with Title XIX. See Dalton v. Little Rock Family Planning Servs.,
Accordingly, the import of Amendment 68 remains a compelling expression of Arkansas’s public policy “to the extent” it does not violate federal law. Ark. Const. amend. 68, § 2. By federal constitutional interpretation, the state’s interest in protecting the life of a fetus begins at viability. See Planned Parenthood of Southeastern Pa. v. Casey,
Our decision in Chatelain was premised upon avoiding inconsistency. Chatelain,
B. Retroactive or prospective application
The next question that arises is whether our decision to overrule Chatelain should be applied retroactively or prospectively. As we stated recendy in Bean v. Office of Child Support Enfcm’t,
We have observed the cardinal principle for construing remedial legislation by giving appropriate regard to the spirit that promoted a statute’s enactment, the mischief sought to be abolished, and the remedy proposed. Bean,
When this court overrules a prior decision and states the rule to be followed in the future, we also acknowledge the need to rely upon the validity of actions taken in faith upon the old decision. See Wiles v. Wiles,
Consequently, we adhere to the doctrine announced in Parish and make the new rule applicable only to the case at bar and to causes of action arising after the decision becomes final. See Wawak v. Stewart,
[t]his serves, in keeping with our system of the private enforcemеnt of legal rights, to reward the present plaintiff for her industry, expense and effort, and for having given this Court the opportunity to rid the body of our law of this unjust rule.
Id.,
In sum, we conclude that appellant’s efforts to bring about a needed change in the law should not go unrewarded, because without such inducement change might not occur. See Special Sch. Dist. of Ft. Smith v. Sebastian Co.,
II. Summary judgment and immunity
The next major issue before us concerns the trial cоurt’s grant of immunity and summary judgment to Dr. Erma Washington and Erma Washington, M.D., and Associates, P.A., based upon her part-time state employment. In reviewing a summary-judgment case, we need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving parties, Dr. Washington and her employer, left a material question of fact unanswered. Notably, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. However, the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (2000); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners,
Once the moving party makes aprima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp.,
Article 5, section 20, of the Arkansas Constitution provides that “[t]he State of Arkansas shall never be made defendant in any of her courts.” Ark. Const. art. 5, § 20, grants sovereign immunity and a general prohibition against awards of money damages in lawsuits against the State of Arkansas and its institutions. Cross v. American Livestock & Poultry Comm’n,
Here, the trial court found that Dr. Washington was, at all relevant times, aсting as a uninsured contract employee by supervising family-practice residents for the State of Arkansas. Accordingly, she was granted immunity from suit. Appellant counters that Dr. Washington wore at least two “hats” on the evening Mrs. Aka died. As a result, he posits that the question of which hat Dr. Washington 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 аfter 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.
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,
III. Other evidentiary issues
A. Exclusion of autopsy photograph and related testimony
Appellant next challenges the trial cоurt’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,
Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs. Jones v. State,
Importantly, after applying the Rule 403 balancing test, we have held that:
. . . even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand the testimony. Other acceptable purposes are to show the condition of the victim’s bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Of course, if a photograph serves no valid purpose and could only be used to inflame the jury’s passions, it should be excluded.
Id.
Here, appellant offered expert testimony that the resident physicians’ attempts to rupture Mrs. Aka’s membrane were the events causing the onset of amniotic fluid embolism, the cause of her death. During Dr. Peretti’s testimony, appellant sought to admit a photograph taken during Dr. Peretti’s autopsy of Mrs. Aka. Dr. Peretti testified that at the time of his examination, he did not recall seeing any injury, tear, damage, separation, or laceration to the placenta. After being shown the photograph at issue, however, he acknowledged that a laceration was evident in the picture. Appellees objected to Dr. Peretti’s testimony and to the photograph’s admission on the basis of “surprise.”
The trial court granted appellees’ motion to exclude both the photograph and Dr. Peretti’s testimony, reasoning that the evidence would probably cause prejudice and was just “announced and discovеred over the weekend or yesterday between [appellant and his counsel].” Significantly, the objectionable photograph was supplied to all parties prior to Dr. Peretti’s testimony at trial. Given that the photograph was capable of authentication and previously supplied to all the parties, we conclude that the trial court abused its discretion by excluding the photograph. We cannot say that the danger of unfair prejudice outweighed the photograph’s probative value. However, we agree that the trial court properly struck Dr. Peretti’s testimony on the basis of surprise.
B. Exclusion of prior complaints
Appellant argues that he was prejudiced by the trial court’s inconsistent rulings regarding the admission of witness testimony of prior complaints about the resident-training program’s lack of faculty supervision. Although the trial court admitted the testimony of Nurse Gail Parker, it excluded the proffered testimony of Dr. Sterling Roff, a local obstetrician, part-time consultant to the residency program, and the chairperson of JRMC’s Credentials Committee.
Nurse Parkеr testified as to the complaints she knew of and that she had made personally, including complaints to Dr. Roaf. She expressed her concerns that the family-practice residents were not getting the necessary guidance from their supervisors and that nurses were left to call for help when the residents would not do so. Dr. Roafs proffered testimony corroborated Nurse Parker’s account. He offered detailed complaints that he had received, including allegations that residents were “doing things” they were not authorized to do and that they were not adequately supervised.
Appellees objected to the testimony of both witnesses and succeeded in excluding Dr. Roaf s on the basis of Ark. R. Evid. 403. When we review the trial court’s decision to exclude Dr. Roafs testimony, we note that in addition to demonstrating an abuse of discretion, appellant must also prove that he suffered prejudice as a result of the abuse. See Misskelley,
C. Testimony regarding Candace Stewart
Appellant’s final рoint on appeal objects to the trial court’s refusal to permit him to allow proof that Dr. Garner “handed off’ Mrs. Aka to Candace Stewart, an unlicensed physician, while allowing appellees to refer to her participation as “Dr.” Stewart. Aka argued that he suffered prejudice regarding his lack-off informed-consent claim because he was unable to point out that Candace Stewart was an unlicensed doctor and the only person made available to Mrs. Aka before she signed the consent form. According to appellant, Dr. Garner informed the nurse on duty that she would not see Mrs. Aka to provide any further information regarding the induction procedure but that Candace Stewart should see her instead. At that point, it became Stewart’s obligation to obtain the patient’s informed consent.
In response, appellees admitted that Stewart had not passed her medical-licensing examination, although she did obtain a doctorate in osteopathy and was a second-year resident with AHEC. In any event, appellees argued that the issue of Stewart’s licensure was irrelevant per Ark. R. Evid. 401. The court agreed, reasoning that Stewart’s non-licensure was not “particularly relevant because of the circumstances in which it is offered.” Again, we observe that appellant must demonstrate both an abuse of the trial court’s discretion and ensuing prejudice. We find no evidence of prejudice resulting from the trial court’s decision to permit reference to Stewart as Dr. Stewart, and we affirm the trial court on this issue.
IV Cross-appeal
On cross-appeal, appellees claim that the trial court erred by admitting Nurse Gail Parker’s testimony of prior complaints about the lack of faculty supervision over the family-practice residency-training program. 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,
The case is remanded to the trial court for further action consistent with this opinion.
Notes
Notably, appellees do not contest that Baby Boy Aka was a viable fetus.
Thirty-two jurisdictions permit a wrongful-death action on behalf of a viable fetus. (Of those thirty-two jurisdictions, four permit an action for an unviable fetus (Connecticut, Missouri, South Dakota, and West Virginia)). Four jurisdictions permit an action, even for unviable fetuses, but have a live birth or stillbirth requirement (Louisiana, Maryland, Oklahoma, and Pennsylvania). One jurisdiction permits an alternative remedy by allowing an action for damages resulting in stillbirth caused by negligence (Florida). One jurisdiction noted in dicta that a wrongful-death action might be permitted but declined to reach the merits on procedural grounds (Utah). Three jurisdictions prohibit an action for an unborn nonviable fetus but have not reached the issue of whether a viable fetus may maintain an action (Alaska, Oregon, and Rhode Island). Four jurisdictions have no case law on the issue (Colorado, Guam, Puerto Rico, and Wyoming). Only nine jurisdictions, including Arkаnsas, reject a wrongful-death action for a viable fetus.
Appellant also points out that Arkansas law enhances responsibility for the crime of battery if the victim is pregnant. See Ark. Code Ann. § 5-13-201(5) (Repl. 1997). Notably, the first-degree-battery statute makes no mention of the fetus’s viability.
Significantly, following the submission of this appeal, the legislature amended Ark. Code Ann. section 16-62-102(a) to include viable fetus in the definition of person for wrongful-death actions. See Act 1265 of 2001 (approved April 4, 2001). The legislature also designated a deceased viable fetus a decedent for purposes of the probate code. See Act 1775 of 2001 (approved April 18, 2001).
Concurrence Opinion
concurring. I concur result reached by the majority in this matter. However, I do not agree with the analysis in Part I of the majority opinion.
The majority correctly suggests that consistency should be the benchmark when this court deals with legislative intent; however, the opinion falls short of its goal in its misplaced rebanee on the amended definition of person in the homicide statutes at Ark. Code Ann. § 5-1-102 (Supp. 1999).
Arkansas Code Annotated § 5-1-102 was passed as Act 1273 of 1999, three years after the events preceding the death of Baby Boy Aka. Legislative enactments are typically deemed to be prospective in application barring an express statement of a retroactive effect. Arkansas Rural Medical Practice Student Loan & Scholarship Bd. v. Luter,
The majority opinion cites Bean v. Office of Child Support Enfcm’t,
Without getting into a discussion of whether creating liability for the wrongful death of a fetus, particularly in the medical negligence arena, creates “new оbligations”, I must observe that the source of legislative intent primarily relied upon by the majority in reversing our holding in Chatelain v. Kelly,
The majority opinion cites, but does not rely upon, a more compelling source of State policy for reversing our holding in Chatelain, and for applying our holding in this case retroactively. Amendment 68 to the Arkansas Constitution expressеs the public policy of the State of Arkansas to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution. Ark. Const. Amend. 68, § 2.
Amendment 68 was approved by the electorate in 1988 and was subsequently declared unconstitutional and unenforceable by the federal courts in Little Rock Family Planning Servs. v. Dalton,
Just as the majority does in this case, the Chatelaincourt made passing reference to Amendment 68 before concluding that “[t]he General Assembly is particularly suited to making this policy decision,” Chatelain, 322 at 525,
The decision in Chatelain might very well have been different had Amendment 68 been enforceable and operative as a constitutional expression of State policy at the-time. This court recognized in Unborn Child Amend. Comm. v. Ward,
The view has been taken that if the decision that a statute is unconstitutional is subsequently reversed or overruled, the statute will ordinarily be treated as valid and effective from the date of its enactment, or from its first effective date, and does not require reenactment by the legislature in order to restore its operative force
See 16 C.J.S. Constitutional Law §’ 108. In Rivers v. Roadway Express, Inc.,
Constitutional amendments are to be construed liberally to accomplish their purpose. Porter v. McCuen,
For the purposes of the homicide statutes, Ark. Code Ann. §§ 5-10-101 - 5-10-105, the definition of “person” includes “an unborn child in utero at any stage of development” and “an ‘unborn child’ means a living fetus of twelve (12) weeks or greater gestation.” Ark. Code Ann. § 5-10-102(13)(B)(i). This definition does little to support the majority’s decision that the legislature intended personhood to begin at viability.
The district court permanently enjoined the enforcement of Amendment 68 in “its entirety,” and on July 27, 1994, entered an additional order stating, “Amendment 68 to the Arkansas Constitution directly conflicts with federal law (the 1994 Hyde Amendment) and is, therefore, null, void, and of no effect.”
See Planned Parenthood of Southeastern Pennsylvania v. Cаsey,
Concurrence Opinion
dissenting in part; concurring in part.I agree with the majority that the public policy of this state has changed so that viable fetuses are now considered persons for purposes of the wrongful-death statute. My disagreement with the majority is over when the change in public policy occurred and whether today’s decision should be applied retroactively to cover only one case. I believe the public policy shift occurred in 2001 with the passage of Act 1265, which amends the wrongful-death statute so that it now applies to a pеrson “or viable fetus.” The majority agrees that today’s decision should apply only to future cases, but then it carves out the Aka fetus as a sole exception. I cannot agree with that part of the opinion. I concur, however, in reversing the judgment respecting Mrs. Aka’s death and sending that matter back for a new trial.
In 1995, in the case of Chatelain v. Kelley,
Today, the majority overrules Chatelain, which I agree with, but then applies its decision retroactively to one lone case — the Aka case. In all other situations, today’s decision will only apply prospectively, that is, to future cases. That aspеct of today’s decision has far reaching consequences. First, it undermines precedent and the stability of our common law. What the majority has done with this decision is to overrule the Chatelain decision after only six days of effectiveness. The Chatelain opinion was handed down on November 20, 1995. With the seventeen-day period for rehearing, that meant Chatelain became final on December 7, 1995, and the mandate issued. The unborn fetus in the Aka case was stillborn on December 13, 1995, which was six days later. The Chatelain case must hold the record in the history of jurisprudence as the case with the shortest life span. Then, there is the inherent unfairness of treating two cases with comparable facts completely differently within a six-day time frame. The result of all this is that legal stability is thrown out the window, and we are relegated to deciding fact situations on a case-by-case basis without any adherence to precedent. That flies in the face of the whole notion of the common law and stare decisis.
The majority’s rationale for carving out the Aka casе as the one exception is decidedly murky. In one place, the opinion reads: “Now, to be consistent with the current expression of legislative intent, we must depart from Chatelain.” The opinion footnotes Act 1265 of 2001 in support of this statement. Another part of the opinion cites Amendment 68 and states: “By federal constitutional interpretation, the state’s interest in protecting the life of a fetus begins at viability.” The majority cites Planned Parenthood of Southeastern Pa. v. Casey,
Again, the burning question is when did the state’s public policy on this issue change? The majority, however, presents us with four different events justifying a change in public policy, with each event occurring in a different year:
1. Amendment 68, which was passed in 1988 and protects fetuses from conception.
2. Amendment 68, as interpreted by Dalton v. Little Rock Family Planning Seros.,516 U.S. 474 (1996), which held that Amendment 68 is displaced only to the extent it conflicts with federal law.
3. Act 1273 of 1999 which included fetuses of twelve weeks or greater gestation as persons for homicide purposes.
4. Act 1265 of 2001, which adds viable fetuses as persons for wrongful-death actions.
The majority’s handling of this critically important social, cultural, and moral issue is muddled. For example, according to the majority, Roe v. Wade has effectively limited the application of Amendment 68 to viable fetuses. But then the majority also relies on Act 1273 of 1999 which extends the protection for homicide cases to fetuses of twelve weeks gestation, which is before viability. Also, if the state’s public policy on viable fetuses changed as early as 1988 or 1996 or 1999, as the majority apparently believes, why does the majority apply today’s decision only to future cases with the sole exception of the Aka case? The majority’s reasoning is inconsistent and extremely hard to justify. A decision of this magnitude requires clarity and direction and not a patchwork quilt woven from disparate statutes, constitutional provisions, and Supreme Court decisions.
In sum, while I agree that it is appropriate to overturn Chatelain, I cannot condone applying today’s decision retroactively to cover only one fetus case. None of the cases cited by the majority permits the overruling of a case earlier than the date that the legislative act that changed the State’s public policy became effective. Here, the wrongful-death statute was not changed until Act 1265 of 2001. The majority points to Parish v. Pitts,
In the dramshop cases, this court overturned prior caselaw based on the fact that the General Assembly had altered the public policy of this state. See Jackson v. Cadillac Cowboy, Inc.,
Nevertheless, the majority seeks to “reward” the plaintiff for causing Chatelain to be overruled. Again, this makes no sense when it is the General Assembly that changed the public policy of this state in response to Chatelain beginning with Act 1273 of 1999 and concluding with Act 1265 of 2001. The Aka lawsuit did not do so.
I would apply today’s decision only from the date the General Assembly аmended the wrongful death statute to include viable fetuses. That legislation (Act 1265) was approved on April 4, 2001, without an Emergency Clause and becomes effective ninety days after the General Assembly adjourned. To overturn Chatelain for one case for a period before the public policy of this state changed is a unique decision. There is no case where this court has previously done so. Certainly, the majority opinion cites us to none.
On a separate point, I disagree with the majority’s rationale for affirming the trial court on the appellees’ cross-appeal regarding the lack of faculty supervision for the residency program. The appellees’ cross-appeal is conditional upon this court’s reversing and remanding for a new trial. The fact that the appellees prevailed in the first trial and, thus, suffered no prejudice is not a sufficient reason to affirm. I would affirm the trial court on this point because the trial court gave a sufficient limiting instruction to the jury concerning Nurse Parker’s testimony. For that reason, I conclude that the trial court did not abuse its discretion with respect to the cross-appeal.
Dissenting in part. Concurring in part.