*1 have been excused my opinion juror In Reed should it disability. Although was not reversi- hearing of his certainly it have juror, fail excuse this would error to ble perhaps some embarrassment saved a lot of trouble excused. In order to hear juror and at- that the witnesses testimony well a tone so loud as to torneys speak would have he would have been em- jurors. Perhaps irritate other testimony repeated. to ask barrassed juror feel the excuse Baker for cause failing I error reverse prejudicial under the circumstances. would and remand it another trial. case

Merlyn W. and Florence S. JONES v. JONES ARKANSAS RADIATION

CENTRAL INSTITUTE, INC., and THERAPY DOE R. HARRIS 80-139

Opinion delivered November Rehearing denied December *2 Associates, & by: Gary & Eubanks Haskins appellants. Clark, Watson,

Friday, by: appellees. & Eldredge J. L. More than two after Mays, Richard Justice. Jones, W. appellant, received radiation D. R. and the Radia- appellees, Dr. Central Arkansas Institute, Inc., against Therapy tion he and his wife filed suit them alleging malpractice fraudulent When the malpractice raised statute of appellants’ limitation as a the trial court dis- bar appellants’ complaint. missed We reverse the trial court sufficient sets forth facts alleged malpractice concealment of to toll statute of limitation. 1962)

Although requires Ark. that all medical actions within years from the date Court alleged malpractice, long one’s recognized malpractice will limitation. running toll statute of Croswell, 874, 256 Crossett Health Center v. 221 Ark. 2d S.W. (1953). dismissal,

In reviewing obliged the trial court’s we are accept allegations as true all of the factual com- alleg- and draw all those plaint reasonable inferences from Inc., appellants. Georges, ed v. Griffin (1979). proximate result

Appellants’ complaint alleged that as by of radiation treatment administered or about thereafter, 3, 1976, August to, injuries, including, not limited permanent severe but quadraplegia secondary myelitis to radiation radiation complaint, appellants allege ...” In their amended entered Veterans Administration of 1978 Jones Rock, with subsequently in Little Arkansas and was released stopped When he done, Harris’ office to show what the radiation had do, retorted, Merlyn, you “well what did come here to make idle threats?” Dr. Harris is to have ex- damage, amined admitted that there was appellant, but the radia- appellant told was not convinced that treatment had it. He tion caused that would *3 Hospital have to secure his files from the Veteran’s arrange appointment. appointment arranged another was No however, calls, repeated only and after appellant was able to arrange appointment an with Dr. in late September Harris or October, early pf after the statute limitation had run. Dr. allegedly claimed that he could not obtain necessary information from the make a Hospital Veteran’s and informed un- would need to certain Dr. dergo tests. Harris also said that he would contact a Dr. Warren Boop, neurosurgeon, about condition Jones’ setting up appointment. According before another to the complaint, agreed but never heard Dr. from Harris or Jones again. his office

We believe that appellants’ allegations present a factual issue as to fraudulent concealment. may It in- ferred that Dr. representation Harris’ concerning the uncer- tainty about the cause of condition was false and that Jones’ his conduct thereafter purposely was dilatory to cover its fraudulent character and prevent from seeing another Jones physician. fraud, But for this Merlyn could have dis- Jones covered the alleged malpractice before the statute of limita- Therefore, tion ran. since the statute of limitation by tolled concealment, appellants’ action should not have been dismissed.

Reversed.

Fogleman, JJ., dissent. Stroud, Holt dis- Justice, dissenting. respectfully F. Stroud, that the finding to its opinion majority sent from sufficient facts forth appellants set complaint toll the statute malpractice the alleged in alleged the facts true all of Accepting as limitations. giving complaint and amended I still appellants, inferences them all reasonable to find find sufficient am unable to less fraudulent much by Appellants allege Merlyn that the treatment of Jones 7, 1976, September and that he came ended on

appellees July appellees the offices of show Merlyn what the him. radiation had done to Jones discharged just from the Veterans Administration at he and where Fort Roots where There was confirmed is no allegation September that Mr. saw between Jones 1978, knew that he or even myelitis until so ad- suffering from radiation Mr. Jones nature, ex- appellees conceal the How could vised Harris. very injury tent and cause of who them? person

I also find merit second of error point *4 appeal they that denied due law process on were find failure of the trial court to that the statute of limitations begin possible did not to run until it was to the in- diagnose jury Mr. Appellants attached an affidavit of cer- Jones. practicing tified as an to their amended radiologist exhibit that stated that the symptomology of radiation myelopathy did 11 appear not until months after his treatments ended. court previously This 1962), held Ark. the two statute, in Owen v. be constitutional (1976) where we said: statutory The time within which an action must be judicially pronounced cannot be unreasonable unless it is so short as under circumstances practical right amount denial [Citation itself. position say legislative We are in omitted.] determination ... is such an un- period short of time for those situated like appellants to discover assert their cause of absent fraudulent deprive them of due process of law or to deprive any remedy. them of Here appellants had they months from the time allege the symptoms appeared and two months from the confirma- tion of the diagnosis to file a malpractice say action. cannot these time periods denied them process of law. I would affirm the order trial court granting appellees’ Motion to Dismiss. J., join this dissent.

Fogleman, Holt, Henry Clayborne v. STATE of Arkansas JOHNSON CR 80-145 606 S.W. 2d 752

Opinion delivered November