*1
375
Cos., 298
v. Keenan
be exact. Wilburn
them must
with
compliance
505,
Farris,
Ark.
263
531
Edmonson
(1989);
S.W.2d
Ark.
768
to service
The same
reasoning applies
S.W.2d 617
565
conducted
rules. Proceedings
court
imposed
requirements
there
arising
invalid render
judgments
service
attempted
Stiles,
249,
Dudley,
not participating.
J.,
M. Howard v.
L. HOWARD
Johny
Dorothy
CLINIC, P.A.:
ARKANSAS SURGICAL
NORTHWEST
M.D., FACS,
Petrino,
A.
and Barbara
Individually;
Robert
Sandefur, M.D., Individually
for Robert and Northwest appellees Clinic, P.A. Surgical Firm, Graves,for BassettLaw W.Dale M. Garrett and by: James Sandefiir, A. Barbara M.D.
appellee This is a medical case. NewberN, DAVID Justice. Clinic, P.A. L. Howard sued Northwest Arkansas Surgical Dorothy Petrino, M.D., Sandefur, and Barbara A. (“the Clinic”), Robert M.D., because a of a needle was seeking damages portion allegedly left in her breast after an excisional Howards’ biopsy. complaint that Ms. Howard consulted Dr. Petrino and the Clinic after alleged revealed abnormal calcifications in her left breast. mammogram Sandefur, Dr. inserted a needle in Ms. How- radiologist, Kopan ard’sbreast to “localize” the tissue to be excised. Dr. Petrino excised the tissue which was sent to Dr. Sandefur for examination. Dr. that, in her Sandefur noted while the wire radiology report portion tissue, of the needle in the the barbed of the needle appeared tip needle, was “not seen.” The of a wire one consisting centimeter had remained Ms. Howard’s It was long later body. removed surgically.
It was that Ms. Howard suffered damages including from the pain suffering, expenses subsequent surgery remove the from her and loss of body, disfigurement, husband, The claim of her M. earnings. Howard was for loss Johny of consortium. was entered in favor of Dr. Summary judgment and the Petrino Clinic on the basis of the medical mal- limitations, practice Code Ann. 16-114-203 (Supp. 1995), Howards contended the statute was tolled due although to fraudulent concealment of malpractice. Summary judgment entered in favor of Dr. Sandefur on the basis of the same statute of that, limitations as well as on the as stated in the Trial ground *4 order, Court’s “there are no issues of material fact.” genuine We affirm the in favor Dr. of Sandefur and reverse the judgment judg- ment in favor of Dr. Petrino and the Northwest Arkansas Surgical Clinic.
The Howards state three of contend points appeal. They the statute of limitations is unconstitutional in that it them deprives of without due of law to the Fourteenth property process contrary Amendment. decline We to consider that because failed point they to obtain a on it from the Trial Court. Technical ruling Servicesof 333, Arkansasv. 896 S.W.2d Pledger, We also tolled, must their that the reject statute of limitations was argument to the found in the according 16-114-203(b), exception during time were unaware of the the of That they presence foreign object. is so because the was discovered the limita during tions We reverse as to Dr. the Petrino and Clinic because a period. issue of material fact remained to whether as the genuine presence con- was fraudulendy Howard’s in Ms. body of the foreign object until she thus tolled of limitations the statute from her and cealed of it. learned 5, Dr. 1992. on November
The was performed biopsy 5, 1992. A November was also dated radiology report Sandefur’s the needle that the of revealed tip routine mammogram subsequent on informed her Dr. Petrino so Howard’s breast. in Ms. remained removed on The needle was January 1993. tip December doctors and action filed their against The Howards 1994. 21, 1994. on December Clinic Petrino was that Dr. the Howards alleged
In their complaint, care in his reasonable and to exercise ordinary failing negligent remove the to discover and of Ms. Howard by failing treatment It that Dr. Sandefur needle. barbed Kopan tip in Ms. the needle was to discover that the negligent failing that “the barb is noted in her breast because she report Howard’s seen, is in the but the wire specimen.” not localizing in relevant 16-114-203 part:
Section provides, section, this all otherwise as (a) provided Except within two shall be commenced actions for medical injury accrues. the cause of action after (2) years action shall accrual of the cause of The date of the (b) of and no other act be the date of complained However, the action is based discovery time. upon which is in the of a body injured person foreign object have been discov- could not not discovered and reasonably the action be com- within such may ered two-year period, or the from the date of discovery menced within one (1) year discov- should have been date the reasonably ered, whichever is earlier. to dismiss the on ground
Dr. Petrino moved complaint within two negligent that the action was not brought years was, therefore, Dr. limitations. barred act and on the moved for same judgment ground. Sandefur summary fraudulent their amended complaint allege Howards *5 concealment.
i. Theforeign-objectexception motions, the Trial treated At the on Court hearing dismiss Dr. Petrino and the Clinic as a motion for the motion to were The Trial Court ruled that Howards summary judgment. rule extension because the not entitled to one-year discovery barbed was found within two act. That years negligent Dunn, in was in accordance with our decision ruling Thompson 6, S.W.2d 31 where we held the (1994), the statute limits the extension for discov one-year foreign-object cases to instances in which the is made outside the ery discovery two-year period.
2. Fraudulent concealment
a. Dr. Petrino and the Clinic
There is in the common law of this State with
respect
tort cases a rule that a statute of limitations will
when “there
apply
was no fraudulent concealment of the cause or extent
injury.”
Tribble,
Burtonv.
189 Ark.
Field v.
(1934),
70 S.W.2d
citing
Co.,
Gazette
187 Ark.
Appellee’s
leaving
gauze
appellant’s
abdominal
and his failure to
thereof
cavity
apprise appellant
were such fraudulent concealments and
acts of
continuing
as toll the statute of limitation until
appellee
his
substance or
performed
duty
removing
learned or should have learned of its
appellant
presence.
that,
because a
should know whether
implication
surgeon
he had left an item in the
there was no need to
or
patient,
allege
or active concealment in order to toll the statute
prove knowledge
of limitations.
*6
332,
In Faulkner the which that a demurrer to a we (1943), complaint upheld after the limita did known until of an not become extent injury Burton case describ had run. We the by tions distinguished period its as follows: ing holding found act had been
The court that the fraudulently negligent doctor, a from the that there was concealed the by plaintiff to make known continuous on the doctor duty part he had done and that there was a breach of this what daily and and that these fraudulent concealments continuing duty, the acts of tolled the statute until such time as until defendant should remove the or the foreign body plain- known tiff knew or should have of its presence. was that the the reader left with an failure to Again, implication disclose of a in the consti- body presence foreign object patient’s tuted on “fraudulent concealment” regardless knowledge part of the physician. Mallow,
In
McEntire
[W]e [Burton] which a is left in the foreign object surgical patient’s body, that out a has a such disclose pointing physician duty misconduct each it continues constitutes a “fraudu- day lent concealment.” The latter situation is now a governed by limitations Ann. Ark. Stat. 34-2616 statutory exception. § 1985) (Supp. codified,
Ark. Stat. Ann. is now 34-2616 with some revisions not § here, relevant as Ark. Ann. Code 16-114-203. us, In his remarks with to the before order now respect Trial Court concluded from the obiter uttered dictum McEntire case, above, is time left quoted any in a to the statute physician patient, only exception contained in the from the one discovery provision is year limitations Not so. statute. in the McEntire the statement opinion point cases a need in equate is no foreign-object
that there longer *7 fraudulent in the to of a foreign object patient mere existence statute of concealment, extending there is a as specific provision after the limitations is discovered such an limitations when object about an instance made no statement The has run. opinion period and, in the summary judgment there is an in which allegation evidence, the fact that a context, concealment of to some support in the body to remain patient’s has allowed a surgeon it there. that is with knowledge have held knowledge wrong
In other cases we
to a
is necessary prerequisite
on the
of
done
part
physician
Ward,
Ark.
&
257
v. Edmondson
of the statute. Williamson
tolling
Croswell,221
v.
837,
Health Center
S.W.2d 260
Crossett
(1975);
520
874,
Our this which and included language in Act 709 of 1979 appeared of the accrual of the cause “The date (b): in 16-114-203 remains § and no act of the date of the complained of action shall be 16-114-202 states A found other time.” general provision § inconsistent Act “shall any pro- the Medical supersede Malpractice contend these statements Dr. Petrino and the Clinic vision of law.” concealment. for fraudulent obviate the common-law exception do not. We hold they the fraudulent-concealment we have referred to
To begin, See, of Act 709. the enactment in several instances since exception 629, Ford’s, S.W.2d 70 Bakker, (1995); Ark. 889 Norris v. 320 e.g., 426, S.W.2d 90 Co., (1989); Ark. 773 v. Russell Brown & 299 Inc. Kreutzer, v. (1986); S.W.2d 716 Ark. 720 Treat v. Jones Ark. Inst., Inc., 270 Arkansas Radiation Therapy Central cases concerning profes- to S.W.2d 334 (1980) (referring post-1979 and sional attorneys physicians). here. A Bakker, bears some discussion v.
Norris
supra,
breasts using
have touched
to
plaintiff’s
dentist
node examination.
complaint
for a
of necessity
lymph
pretext
statute of limitata
after the two-year
was filed
limitations.
claim statute of
tort
had the
tions had run as
three-year
the fraud-
We discussed
1995).
Ann. 16-56-105
Ark. Code
(Supp.
it because the
but declined
ulent concealment
apply
exception
did
the act had occurred and the defendant
nothing
knew
plaintiff
We cited this
her from
of its
learning
wrongfulness.
prevent
Lease,Inc.,
Elec.
Auto
from Wilson General
Cap.
84,
No mere on the ignorance part plaintiff under no nor the mere silence of one who is rights, obliga- bar. There must be tion to will the statute speak, prevent fraud, act so some something furtively positive planned executed as to cause of action secretly keep plaintiff’s concealed, that it conceals itself. And or perpetrated way if the have detected reasonable might plaintiff, by diligence, fraud, he is to have had reasonable knowledge presumed of it.
In case before there an of an act now us is allegation perpetrated *8 in a that it conceals itself. We have a defendant who had an way obvious if he knew he had professional, positive duty speak in have left his we evidence that negligently patient, he was informed that the remained in the foreign object patient, not, stated, and we have a who could if the facts were as plaintiff have detected the fraud. we are sensitive of the
While statute that the cause of action for medical accrues “the date of the time,” act of and no other it does not wrongful complained pre clude this action. The act of concealment is and part parcel ends, of the act of. Until the concealment wrongful complained act continues. We cannot that the General imagine intended to allow to evade for Assembly physicians responsibility acts them their from negligent by knowingly concealing patients until after the statute of limitations had run.
It was error to in favor of Dr. grant summary judgment Petrino and the Clinic.
b. Dr. Sandefur In a to her motion for Dr. supplement summary judgment Sandefur submitted an affidavit in which she stated her “findings” were to Dr. Petrino’s office. The she radiological telephoned report thereafter dictated stated the barbed of the needle tip Kopan She also stated it was the seen in the practice was not specimen. to the was filed to mail in which copy the hospital report did not see the after her said she She patient treating physician. needle, far as she knew Ms. Howard left the of the and as insertion the insertion Dr. Sandefur performed procedure hospital did not return. Dr. their Sandefur neg complaint alleged
Although
of the barbed
in her failure to ascertain
presence
ligent
breast,
us
needle in Ms. Howard’s
have
nothing
they
given
Kopan
of their
that she had a
of law or facts
allegation
way
support
rate,
circumstances
At
the two-
to do so in the
any
duty
presented.
had run
the time the Howards filed
statute of limitations
by
year
Dr.
The Howards have
their
Sandefur.
presented
complaint against
to counter Dr. Sandefur’s affidavit which she
no
presents
proof
to show she did
to conceal the fact that the
facts tending
nothing
in Ms. Howard’s breast.
remained
for
is made and
When a motion
summary judgment
sup-
rule,
rest
as
in this
an adverse
not
ported
provided
party may
the mere
or denials of his
but his
allegations
pleadings,
upon
rule,
affidavits or as otherwise
in this
provided
response,
forth
facts
that there is a
must set
showing
genuine
specific
If he does
so
issue for trial.
not
respond, summary judgment,
be entered
him.”
if
shall
against
appropriate,
Ark.
Ark. R. Civ. P.
See Dillardv. ResolutionTrust
56(e).
Corp.,
Inc.,
ment in favor Clinic *9 remanded for further proceedings.
GLAZE, dissents in J., part.
Dudley, J., not participating.
Tom I with GLAZE, Justice, dissenting part. disagree of the that holds the medical majority opinion malpractice part limitations, Ark. Code Ann. 16-114-203 1995), (Supp. § action. 16-114-203 bars L. Howard’s Section Dorothy as follows: provides section, in this all as otherwise
(a) Except provided within two shall be commenced for medical actions injury of action accrues. after the cause (2) years action shall be date of the accrual the cause of The (b) no other act of and the date of the complained wrongful However, the is based the time. action discovery upon of the which is a in the injured foreign object body person have been discov- not discovered and could not reasonably be ered within such the action commenced period, may one from the date of the or the date (1) within year discovery discovered, the should have been object foreign reasonably whichever is earlier. its enactment the General 16-114-203(b),1
By Assembly a to the statute foreign object general provided exception two-year of limitations for medical actions. Until (b) malpractice provision enacted, was a a or medical patient injured by physician provider had to his or her action within two bring malpractice years act and at no other time. With the foreign object excep- tion, the General authorized a a medi- Assembly patient, injured by cal a in the one full provider leaving foreign object patient’s body, suit from the date was discovered or year bring object words, should have been discovered. In other even if five reasonably found, ten had or before the years years passed foreign object would have a full file suit. injured person year Clearly, of this was to extend the time for suit for purpose legislation filing those who had left hidden in their injured patients foreign objects after some of intrusive body type procedure. here limitation should still appellees argue two-year in some instances when are involved.
apply foreign objects They lay on the emphasis wording (b), provision by underscoring second sentence as follows:
However, where the action is based upon discoveryof whichis not body injured person discovered couldnot have havebeendiscoveredwithin reasonably such . . . two-yearperiod, reason that the above infers Mrs. Howard’s medical
They
providing
Act 709 of 1979 was the first enactment
to the
exception
statute of limitations.
*10
the
barred because she discovered
action is
negligence
breast,
limitation
in her
the
or barbed
within
two-year
object,
tip,
Therefore,
than the
assert the
rather
two-year,
appellees
period.
one can
read
While
certainly
limitation
applies.
one-yéar,
period
in
limitation
out of context to
two-year
the literal words
apply
manner,
can
will occur. Such a
this
absurd results
and
reading,
view,
aborts the
of
16-114-
purpose
my
legislative
completely
§
that,
is well settled
The rule of law
203(b).
although
plain
to
is often
it is
of a statute
controlling,
impermissible
where
that
absurd
engenders
follow literal reading
consequences
the stat
that
effects
reasonably
there is an alternative interpretation
U.,
v.
Drew & Northern
Co. United Transp.
ute’s
Ashley,
Ry.
purpose.
1980).
F.2d
Cir.
1357 (8th
out,
construction
As
under the
Mrs. Howard points
appellees’
been
one
if the barbed
had
discovered
16-114-203(b),
year
§
have
she would
and 364
after
days
negligence,
Even an
had
commence her action.
one
to
only
injured person
day
a month or more before the two-year
discovering foreign object
from
a suit that
be
ended would
effectively precluded
filing
period
muster,
considering
would
ARCP
pass
especially
complexity
and the research and
matter
subject
preparation required
16-114-203(b)
such an action.
only
filing
interpretation
§
its
to all
makes
is to
limitation
that
sense
apply
one-year
provision
Otherwise,
will
situations can and
cases
objects.
involving foreign
with
arise under
(b)
foreign objects
provision
injured patients
restrictive
hidden in
will continue to be barred
more
them
above, that runs counter
limitation
As discussed
provision.
hidden
to
one-year
foreign object exception
purpose
time to file suit.
such
more
granting
injured patients
Dunn,
I
court’s decision in
this
recognize
Thompson
of 16-
FARM Arkansas, Inc. v. K. DAVID Romeal 921 S.W.2d 95-838 of Arkansas Court Supreme delivered May Opinion