Dawson v. GerritsenDawson v. Gerritsen
- Reporters:
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- Before:
- Hays
This is a second appeal by Donovan Dawson involving claims arising from the death of Mary Francis Dawson. Mrs. Dawson died intestate on October 7,1983, the day after surgery was performed by Dr. Roy Gerritsen at Baptist Memorial Hospital, Forrest City. She was survived by her husband, Donovan Dawson, and by two minor sons, Donnie Wayne Dawson and Timothy Oliver, the latter from an earlier marriage. Mr. Dawson was appointed administrator of the estate and on October 1,1985, he filed a wrongful death action on behalf of the heirs against Dr. Gerritsen and Baptist Memorial Hospital. The complaint specifically included the causes of action of the minor sons of Mrs. Dawson.
The defendants moved to dismiss the complaint for failure to give sixty days notice in writing of an intent to sue, as required by Section 5 of Act 709 of 1979, codified as
While the first case was under submission on appeal, another wrongful death action
Appellants contend that under
Appellants maintain that this is a wrongful death claim rather than a medical injury and is, therefore, subject to the three year period of limitations applicable to wrongful death actions generally under
We do not decide whether the legislature intended that actions for wrongful death resulting from medical malpractice be subject to Act 709, because it is clear that the claims of Donnie Wayne Dawson and Timothy Oliver, irrespective of their minority, may not be severed or split from the claims of the estate and next of kin when a personal representative has been appointed. That was precisely the issue in Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564 (1953). Anthony Reed was killed in a traffic accident in Nevada County, Arkansas where his parents lived. An administrator was appointed and a wrongful death action was brought, the complaint alleging that Reed’s next of kin were his parents. There was no mention of a wife and minor child residing in California, whose existence was not even known to the administrator. The case was tried, a judgment of $2,500 was awarded the plaintiff against the defendant, and the money was distributed to the parents. When the spouse and minor child brought an action of their own, the trial court sustained the defendant’s plea of res judicata and we affirmed, holding that under the language of
To uphold the appellant’s arguments in this case would require that we split appellants’ causes of action from those of the estate and other next of kin brought by the personal representative, which we have consistently refused to do where a multiplicity of suits would be the result. Lisenby v. Farm Bureau Mutual Insurance Company of Arkansas, 245 Ark. 144, 431 S.W.2d 484 (1968):
Needless to say, the rule against the splitting of a single cause of action is intended to keep defendants from being harassed by a multiplicity of suits and to lighten the already overcrowded dockets of the trial courts. In finding the existence of a single cause of action, we have placed some emphasis upon the fact that the several claims arise from a single transaction, [citations omitted] In the case at bar we are firmly of the view that the fire created only one cause of action and the plaintiffs ought not to be permitted to subdivide that cause of action, thereby burdening the defendant and the courts with a waste of time and expense that attends a needless jury trial. [Id. at 146].
Appellants also cite us to Darnell v. Lea, 162 Ark. 516, 258 S.W. 363 (1924). There we held a plaintiff was not barred from suing a man who had allegedly seduced and debauched her at age sixteen, even though an earlier suit by her guardian had been dismissed. The cases are distinguishable. The cause of action for seduction was in no sense derivative, as may be said of the cause of action bestowed under the wrongful death statutes, but arose from a tort committed directly against the person of the plaintiff. Too, the suit by the guardian was dismissed for failure to prosecute and was not res judicata as to the cause of action.
Here, when the second action was dismissed for failure to give written notice of an intention to sue, an earlier identical action having been dismissed on plaintiffs motion for a nonsuit, the second dismissal operated as an adjudication on the merits. Arkansas Rules of Civil Procedure, Rule 41.
By cross-appeal, counsel for the appellees’ seek to recover fees and expenses under Section 8 of Act 709, which provides for the recovery of reasonable costs in any action to recover for medical injury wherein the claims or defense are baseless, that is, “intentionally made without reasonable cause and found to be untrue.” The trial court considered appellees’ requests for a recovery under this section and took the position the claims were not baseless. Considering the circumstances in their entirety we cannot conclude that was error. The provision in Act 709 requiring sixty days notice in writing of an intent to sue raises significant due process questions and is manifestly harsh. While we have upheld it, Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984), we have also noted our reservations. Dawson v. Gerritsen, supra. Suffice it to say at this juncture that the appellants are not to be further penalized for attempting to escape from an obvious hardship, the equal of which may not exist elsewhere in the law.
AFFIRMED.