*1 175 do so in this case and We should Code, of the Juvenile it that, Statute is although part hold who, interrogated and being to a while juvenile at least of a delinquency or made the being charged before right waives the counsel. proceeding, respectfully RUFFINS, of Gary Loraine Administrator of Estate P.A.; Ruffins, ARKANSAS, v. ER Deceased M.D.; M.D.; Beam, Parker, C. David Robert Ozment, M.D., Lowell V. et al.
92-949 Court Arkansas
Supreme delivered Opinion May [Rehearing denied June 1993.*] Brown,JJ., grantrehearing. *Corbinand would *2 Walker, Branion, P.A., Jr., A. for Wiley John W. by: appellant. P.A., & Dennis L. Shackleford, Phillips, by: Shackleford Arkansas, for ER P.A.
Shackleford, appellee Mitchell, Williams, Gates & Richard Selig, Woodyard, by: Beam, for David C. M.D. Angel, appellee McMillan, McCorkle, Turner & F. for by: Curry, Thomas Parkman, Robert L. M.C. appellee Clark, Malcom, & for Friday, Eldredge by Phillip appellee Ozment, Lowell V. M.D. Plaintiff, Dudley,
Robert H. Justice. the administrator of estate, defendants, against the decedent’s filed this action the ER Arkansas, association, of an medical care emergency professional Parkman, Beam, Ozment, and David Robert and Lowell of gravamen doctors. The the is that the defendant complaint deceased, diagnose doctors failed to and treat the properly failed care, to refer him to others for and that their proper negligence resulted in the death of the decedent. The for prayer damages for those damages asks can be assessed under the wrongful death statute. Plaintiff filed this action after the two- of year statute limitations provided by run, Act had but before the of limitations three-year statute the Death Act provided by Wrongful had run. later,
Some time and after the statute of three-year limita- had tions also the defendant doctors passed, filed, each either motions to dismiss or motions for summary that the judgment alleged had not with the plaintiff complied of Act. The provisions plaintiff Medical that she filed suit for the three- responded wrongful death within limitation and did not have to with the notice year period comply Act, contained in Ark. of the Medical Malpractice trial court ruled that 1991). (Supp. not been before the running suit had commenced plaintiffs existing under the then law because statute of limitations had notice of intent sue as given required by not plaintiff Act before the statute limitations ran. the trial court dismissed suit. Plaintiff appeals. Accordingly, We affirm the of the trial court.
As a matter we note in view of our decision preliminary Weidrick v. Arnold, 138, 835 S.W.2d 843 is, however, decision significance has little as a It very precedent. significant parties, and fairness that we obviously requires the law at the time was apply extant this case tried. *3 Act,
The Medical which was Malpractice enacted in that it to all of action provides applies causes for medical Ark. An injury. (1987). 16-114-202 “action for § medical “any against is action a medical care injury” provider, tort, contract, otherwise, whether based in or to recover damages on account of injury,” medical Ark. Code Ann. 16-114-201(1) § to all causes of action for medical (1987), and “applies the act Ann. injury.” (1987) Code 16-114-202 (emphasis § added). A is defined medical as adverse “any consequence out of in arising or sustained the course of professional services being rendered a medical Ark. Code Ann. by provider.” 16- § Thus, 114-201(3) statute, (1987). the its clear language, by case, and, law, to the facts of under then existing Ark. Code Ann. 16-114-204 notice of (1987), written intent to § sue “within of of days expiration period bringing suit” was the statute con required. Significantly, additionally tains the it that “shall provision any inconsistent supersede of provision law.” Ark. Code Ann. 16-114-202 Noth § ing more need about be said the Medical Act. Its Malpractice clear, language is and it mandates that the of the trial court be affirmed.
The asks us to the clear plaintiff-appellant tacitly ignore of language the statute by arguing recognized that our cases have that medical and are causes malpractice wrongful of action even though they arise from the same act may negligent is asserts this action one for death. Accord- solely did have to the “notice of give she contends that she not ingly, that is the Medical Act at required by Malpractice intent to sue” 16-114-204. She bolsters her argument by Ark. Code Ann. § Brown v. Mercury a sentence of dictum from St. Paul quoting (1991), Ins. that states the Medical Act is irrelevant to death actions. Malpractice issue, it is first for us to In order to decide necessary look at our cases and determine what held. fairly they Matthews v. Travelers Indemnity S.W.2d 485 which was decided before the current law, Act became was for a complaint medical on was whether the then injury. question appeal statute of limitations or the existing wrong ful death statute of limitations should that apply. Recognizing were separate statutory actions with limitations we said that “each conflicting provisions, 249, 432 statute is Id. at We partly controlling.” at 487. limitations, chose to apply statute liberal, However, was more on does policy grounds. here, not regardless decide the issue this case. The issue controls, which statute of limitations is whether the then required Act, of the Medical Ark. Code Ann. provision 1991), Since this is (Supp. applicable. undisput edly a suit for a “medical Act injury,” and, arose, at the time this case applies, it required sixty-day *4 notice of to wrongful intent sue. The death statute does not notice. See require Ark. Code Ann. The § Medical Act was the Malpractice long wrongful enacted after enacted, death statute was and the Medical Act Malpractice inconsistent of law.” Ark. expressly “supersedes any provision 16-114-202 (1987). We have no choice of on policy the notice issue as we did when there were two statutes of limitations that were applicable. Nothing more need be said on issue, and it too is decisive of this case. addition,
In to the contrary assertions of our case appellant, law has reserved ruling on the issue of whether actions wrongful resulting death from medical to subject are the current Medical Act. In v. St. Paul Malpractice Brown Co., 558, (Brown Ins. 732 Mercury (1987) S.W.2d 130 decedent, Brown, we I), wrote that the died from a Roy DeWayne
179 statute of limitations three-year but that the medical injury, did statute We not in death wrongful applied. contained the Act, Medical and Malpractice of the provision discuss the notice of the case holding holding made no on the issue of notice. We based the Brown I related to the statute of limitations. only earlier Matthews v. Travelers Indem holding on our in holding 247, which (1968), Ark. 485 was nity Ins. 245 the Medical Act was How decided before enacted. Center, ever, in v. Rose Care Bailey that we were in error in I we wrote (1991), we held Brown when that the died from we overruled decedent a medical and injury, Thus, Brown I extent. the of Bailey, to that after whether question a from to resulting subject was the injury of of limitations Act was an period open we had question, holdings made no whatsoever about the notice issue. Gerritsen,
In Dawson v. sought any clear about the up misunderstanding wrote, issue and “We do legislature not decide whether the intended that actions for from medical resulting be to Act 709 Medical Malpractice [the 209, 748 . . at .” Id. S.W.2d at 34. It is think of hard to Act]. clearer that way say we reserved on the issue. v. St. Mercury Paul (Brown S.W.2d 908 which (1992) III), was the of appeal third decedent, I, Brown, Brown we that said died Roy DeWayne from a medical injury three-year that the statute limita- tions contained statute but we applied, stated that our expressly was based law of on the I, and, out, case from Brown as set we had previously already overruled Brown that held part was medical injury. Unfortunately, one sentence of dictum says Act, including the is provision, irrelevant to death actions. That sentence on is the dictum, bases her appellant argument. The sentence is not case, of the be and must read in the whole context of which states that the law of the paragraph holding based on the *5 case. concurring a of Justice clear opinion Glaze issued warning to who attorneys malpractice later file might medical actions that it would be the notice prudent assume that Brown, See of the Medical Act still Malpractice apply. J., 364, (Glaze, at 910 concurring).
308 Ark. at on the statute of limitations issue. holding Brown III is latest contained no on the notice issue. It sum, on whether we have reserved expressly is governed from medical resulting malpractice Act, and this is the first time we are by The Medical Act faced with the issue. squarely causes action that it to “all provides clear, added.) The and we are language injury.” (Emphasis that, we hold under the then Accordingly, constrained to follow it. law, with the existing given notice had to be compliance Act. Affirmed. JJ.,
Glaze, Corbin,
Brown,
Corbin, Justice,
time,
dissenting.
Donald For some
recognized
court has
that medical
death are
causes of action even
arise
though they may
from the same
acts. Matthews v. Travelers
negligent
Indemnity
247,
(1968).
245 Ark.
appellees argued
longer
law since it was
good
decided before the
legislature enacted Section 5 of Act 709
1979, codified as Ark.
How
ever, we declined to address “whether the
intended
legislature
that actions for wrongful
resulting
from medical malprac
206, 209,
Dawson,
tice be
to Act 709.”
34.
*6
Without
Matthews or
of our
overruling
any
subsequent
cases, the
to
our
majority attempts
distinguish
cases
subsequent
reach the
that an action for
resulting
from medical injury
to the
of the Medical
Act enacted Act 709
by
of 1979. This is the crux of
Matthews,
my
One
has to read
Simmons First Nat’l
Bank, Dawson,
I,
Brown
III
Bailey,
to reach the
conclusion that this
inescapable
recognized
court has
unwaver-
for a
ingly
of a
quarter
that an action for medical
century
and an
action for wrongful death are
causes
of action even though
arise from the
they may
same negligent
acts. For this court to
these cases so as
'‘‘'distinguish'’'’
to reach an
opposite conclusion is an intellectual feat that I
exceeds
suspect
our profession’s
While this issue will
ingenuity.
be moot in the
future by virtue of our
Arnold,
decision in Weidrick v.
138,
In Brown v. 558, 562, St. Paul Mercury Ins. 132 (1987) (Brown I), while we found that Brown’s death was characterized properly as a medical we injury, found that the claim was founded on the wrongful death statute and, therefore, the three-year statute of limitation contained in the wrongful death statute In applied. our decision explaining stated that wrongful death statute a new and separate
[o]ur [creates] cause of action which if death caused by any [arises] [is] wrongful act and which carries own its statute of limita- tions as reason, of that part right. For this the medical malpractice statute of limitations is irrelevant when a dies patient from his injuries before the two-year period has run.
We later determined that the injury Brown I was not a medical injury (decedent in Brown was a patient at an alcoholism treatment center when he walked out of an unlocked door onto the roof of the building and either fell or to his jumped death). Bailey Center, v. Rose Care 412 (1991). Bailey, we overruled Brown I to the extent that was in conflict with the holding in Bailey that the death was not patient’s caused by (decedent a medical injury in Bailey was a in a patient unnoticed in his nursing left the home
nursing home and truck struck subsequently by pickup wheelchair and was decision in as also Bailey views our instantly). majority killed I that the statute of limitations the decision in Brown overruling where the cause of death death action applicable *7 for wrongful was the statute limitation injury was a medical limitation for medical malpractice. death not the statute of and too far. The holding Bailey only our in The extends majority was determination that Bailey Brown I and our conflict between Thus, Bailey I a medical injury. only in Brown was injury that the injury Brown I to the extent our determination overrules is in conflict with the determina- injury in Brown I was a medical injury. that a similar was not a medical Bailey tion in in I that death holding wrongful does not affect the Brown Bailey actions and the medical and medical are malpractice wrongful of limitations does not to a apply statute malpractice death a medical injury. death claim even if the cause of in the Brown case was Bailey, After our decision appealed Brown v. St. Ins. Ark. again. Mercury us Paul yet the trial court had dismissed (1992) (Brown III), claim for failure to with comply require appellant’s 16-114-204. We reversed the trial court and said ments of section issue of whether this is a medical malpractice [t]he to be the notice and the governed by requirements action of medical statute of limitations two-year statutes or a death action was decided in Brown I. wrongful death action. Because this is wrongful We held that this is a action, a with the medical wrongful compliance statutes, 16-114-204, including is irrele- vant. III, 361, 363, 823 908, 909.
Brown The majority ignore our clear statement in Brown III it attempts by saying was decided on law of the case and contained no principles on the notice issue. The III was issue in Brown in whether the notice of section 16-114-204 provisions applied death action. The III relied wrongful law of case which Brown the holding was in Brown I that the case was a upon death case in which the cause of death injury. was a 16- of Brown III was that the notice of section though case even 114-204 do not in a apply This was not dictum as the injury. cause of death was medical law, our case since case previous contends. Under majority case, though even the cause death before us is a was a with section 16-114-204 is not injury, compliance required.1
I would reverse and remand for further consis- proceedings tent with this opinion. JJ.,
Glaze Brown, join this Justice, Brown, dissenting. Justice join Robert Corbin’s dissent further observe that this date majority approach to this cause of action. We patchwork quilt have held that a claim be brought injuries like have in amy case either as a death action or medical malprac tice. v. St. Mercury Paul *8 I); (Brown 130 see also Matthews v. Travelers Co., 247,
Indemnity Ins. (1968). 485 We have held that the two are alternative causes of action with different statutes of limitation. Id. option is available even when a medical involved such as we have in the injury present case. Id. we are “Not so.” The that
Today, saying, majority holds notice 60-day provision in Medical Malpractice Act bemay that plucked from act and applied death action to foreclose further under litigation that statute. things First,
There are several wrong with this approach. has endorsed a cause of majority hybrid action. Secondly, decided issue in Brown v. St. Paul Mercury Ins.
361, 823 S.W.2d (1992) (Brown 908 III), when we said: action,
Because this is a
with
compliance
statutes,
including §
60-day
statute],
is irrelevant.
[the
1
recently
provision
superseded by
We
held that the notice
of section 16-114-204 was
Arnold,
However,
138,
(1992).
Ark. R. Civ. P. 3. Weidrick v.
Finally, subsequently injury in Brown I was not a does not injury negate I that a medical brought claim could be either under Act or as a death action. reverse the trial court’s orders of dismissal and would for trial. remand Corbin, JJ., join.
Glaze Michael COX v. STATE of Arkansas Johnie CR 91-16 Court of Arkansas
Supreme delivered Opinion May