Tomosa SUMMERVILLE v. Dr. Rufus THROWER, Joy Woolfolk, and Healthcare for Women, P.A.
06-501
Supreme Court of Arkansas
March 15, 2007
April 26, 2007
253 S.W.3d 415
Barber, McCaskill, Jones & Hale, P.A., by: John S. Cherry, Jr., and Perry L. Wilson, for appellee Joy Woolfolk.
Mitchell, Blackstock, Barnes, Wagoner, Ivers & Sneddon, PLLC, by: Emily Sneddon, for amici curiae American Medical Ass‘n and Arkansas Medical Society in Support of Appellees Dr. Rufus Thrower, et al.
ROBERT L. BROWN, Justice. Appellant Tomosa Summerville appeals the dismissal of her medical-malpractice complaint against appellees Dr. Rufus Thrower, Joy Woolfolk, and Healthcare for Women, P.A.,1 which dismissal was based on her failure to file an affidavit of reasonable cause within thirty days of filing her complaint, as required by Act 649 of 2003, now codified at
On July 21, 2005, the appellant, Tomosa Summerville, filed a complaint in Pulaski County Circuit Court against Dr. Rufus Thrower, Joy Childress,2 and Healthcare for Women, P.A. (“Healthcare“) for medical negligence. The complaint alleged that on January 23, 2003, Dr. Thrower, a practicing obstetrician and gynecologist and owner of Healthcare, a clinic for women, “cut and tied [Summerville‘s] tubes.” Summerville visited Healthcare again on August 8, 2003, and informed Joy Woolfolk, a licensed nurse practitioner working there, that the result of a recent
On August 28, 2003, Summerville became delirious and experienced abnormally heavy vaginal bleeding. She was taken to the University of Arkansas for Medical Sciences (UAMS) and was diagnosed with a tubal pregnancy and underwent emergency surgery. In her complaint, Summerville alleged that Dr. Thrower, Woolfolk, and Healthcare all violated the applicable standard of care. She alleged that Dr. Thrower, as owner of Healthcare, did not adequately supervise Woolfolk or take steps to assure that she was supervised by a physician and did not thoroughly examine Summerville or her medical chart. She further alleged that if Dr. Thrower did examine her medical chart, he should have diagnosed Summerville with a tubal pregnancy.
With regard to Woolfolk, Summerville alleged that she should not have undertaken Summerville‘s medical care without the adequate supervision of a physician and that Woolfolk should have diagnosed her with a tubal pregnancy and requested that Dr. Thrower examine her. Summerville asked for damages against the defendants for mental and physical suffering, disfigurement, and the incurrence of medical expenses. She also asked for punitive damages and alleged that Dr. Thrower intentionally and illegally allowed Woolfolk to provide medical care to her without the supervision of a physician. The doctor further assisted Woolfolk, according to Summerville, in the practice of medicine without a license.
On September 16, 2005, separate defendants Dr. Thrower and Healthcare filed a motion to dismiss the complaint, wherein they contended that Summerville failed to submit an affidavit of reasonable cause from a medical expert as required by
Summerville subsequently filed two affidavits. The first, filed on October 11, 2005, was submitted by Dr. Nancy Andrews, a UAMS physician practicing obstetrics and gynecology, which averred that the standard of care in this community had been violated under the facts of Summerville‘s case. The second affidavit, filed on January 10, 2006, was submitted by Sarah Rhoads, a clinical assistant professor at the UAMS College of Nursing and a licensed advanced nurse practitioner specializing in women‘s health. That affidavit explained the applicable standard of care for nurse practitioners in this community relating to ectopic pregnancies.
A hearing was held, following which the circuit court entered an order on January 13, 2006, in which it ruled that
Summerville appeals and contends that the circuit court erred for multiple reasons in ruling that
The entire statute in question in this case provides as follows:
(a) If any action for medical injury is filed without reasonable cause, the party or attorney who signed the complaint shall thereafter, as determined by the court, be subject to:
(1) The payment of reasonable costs, including attorney‘s fees, incurred by the other party by reason of the pleading; and (2) Appropriate sanctions.
(b)(1) In all cases where expert testimony is required under
§ 16-114-206 , reasonable cause for filing any action for medical injury due to negligence shall be established only by the filing of an affidavit that shall be signed by an expert engaged in the same type of medical care as is each medical care provider defendant.(2) The affidavit shall be executed under oath and shall state with particularity:
(A) The expert‘s familiarity with the applicable standard of care in issue;
(B) The expert‘s qualifications;
(C) The expert‘s opinion as to how the applicable standard of care has been breached; and
(D) The expert‘s opinion as to how the breach of the applicable standard of care resulted in injury or death.
(3)(A) The plaintiff shall have thirty (30) days after the complaint is filed with the clerk to file the affidavit before the provisions of subsection (a) of this section apply.
(B) If the affidavit is not filed within thirty (30) days after the complaint is filed with the clerk, the complaint shall be dismissed by the court.
This court has often stated our standard for reviewing the constitutionality of a statute:
It is well settled that there is a presumption of validity attending every consideration of a statute‘s constitutionality; every act carries a strong presumption of constitutionality, and before an act will be held unconstitutional, the incompatibility between it and the constitution must be clear. Eady v. Lansford, [351 Ark. 249, 92 S.W.3d 57 (2002)]. Any doubt as to the constitutionality of a statute
must be resolved in favor of its constitutionality. Id. The heavy burden of demonstrating the unconstitutionality is upon the one attacking it. Id.
Whorton v. Dixon, 363 Ark. 330, 336, 214 S.W.3d 225, 230 (2005). If possible, this court will construe a statute so that it is constitutional. See McLane Southern, Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006). This court reviews the circuit court‘s interpretation of the constitution de novo, and though this court is not bound by the circuit court‘s decision, the circuit court‘s interpretation will be accepted as correct on appeal in the absence of a showing that the circuit court erred. See First Nat‘l Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005).
The Oklahoma Supreme Court recently considered an appeal from a dismissal of a medical-malpractice complaint due to failure to attach an affidavit from a qualified medical expert attesting to the merit of the cause of action. See Zeier v. Zimmer, Inc., 152 P.3d 861 (Okla. 2006). In that case, the Oklahoma General Assembly had enacted legislation requiring that an affidavit of merit from a qualified expert be attached to medical-malpractice complaints. For good cause, a plaintiff could obtain a ninety-day extension of time to file the affidavit. Otherwise, the plaintiff‘s complaint would be dismissed. The Oklahoma plaintiff filed a medical-malpractice complaint without the affidavit and did not request an extension. The trial court dismissed the complaint without prejudice, and the plaintiff appealed.
The Oklahoma Supreme Court held that the act requiring an affidavit of merit was unconstitutional under Oklahoma‘s state constitution as special legislation and as constructing a monetary barrier to access to the courts. In so holding, the court said:
The Oklahoma Legislature implemented the Affordable Access to Health Care Act (Health Care Act),
63 O.S. Supp. 2003 § 1-1708.1A et seq. for the purpose of implementing reasonable, comprehensive reforms designed to improve the availability of health care services while lowering the cost of medical liability insurance and ensuring that persons with meritorious injury claims receive fair and adequate compensation. Although statutory schemes similar to Oklahoma‘s Health Care Act do help screen out meritless suits, the additional certification costs have produced a substantial and disproportionate reduction in the number of claims filed by low-income plaintiffs. The affidavit of merit provisions front-loadlitigation costs and result in the creation of cottage industries of firms offering affidavits from physicians for a price. They also prevent meritorious medical malpractice actions from being filed. The affidavits of merit requirement obligates plaintiffs to engage in extensive pre-trial discovery to obtain the facts necessary for an expert to render an opinion resulting in most medical malpractice causes being settled out of court during discovery. Rather than reducing the problems associated with malpractice litigation, these provisions have resulted in the dismissal of legitimately injured plaintiffs’ claims based solely on procedural, rather than substantive, grounds.
For Summerville‘s point that
The appellees respond that Weidrick, supra, is distinguishable from this case because, first, the affidavit requirement under
At the outset, it is important to highlight the fact that the Medical Malpractice Act currently contemplates two averments by experts: (1) the affidavit of reasonable cause, which is the subject of this appeal; and (2) expert testimony of the community‘s standard of care, the absence of which may lead to summary judgment in favor of the defendant. See
Act 649 of 2003, now codified at
Because we conclude that
We can think of few rules more basic to the civil process than a rule defining the means by which complaints are filed and actions commenced for a common law tort such as medical malpractice. The express intent of the Arkansas Constitution and Act 38 of 1973 is for the governance of the procedure of the courts of this state to fall within the power and authority of the Arkansas Supreme Court. How civil actions are commenced is [a] fundamental cog in that procedural wheel.
Weidrick, 310 Ark. at 146, 835 S.W.2d at 847. There is little, if any, practical difference in this court‘s mind between a mandatory legislative requirement before commencing a cause of action like we had in Weidrick and a mandatory requirement within thirty days immediately after filing a complaint such as we have here. Both procedures add a legislative encumbrance to commencing a cause of action that is not found in Rule 3 of our civil rules. Appellees Thrower and Healthcare appear to acknowledge this when they write in their brief in support of motion to dismiss and for costs: “Alternatively, the pleading mistake [failure to include the reasonable-cause affidavit] means that this action was not properly commenced . . . .”
The constitutional infirmity in
We reverse the order of dismissal of the circuit court with respect to the thirty-day dismissal set out in
GLAZE and IMBER, JJ., concur.
ANNABELLE CLINTON IMBER, Justice, concurring. I concur with the result reached by the majority because Arkansas Code Annotated § 16-114-209(b)(3)(B) (Repl. 2006) conflicts with Rule 11 of the Arkansas Rules of Civil Procedure.
Section 16-114-209(a) authorizes the imposition of appropriate sanctions if a party or attorney files a medical malpractice action without “reasonable cause.” In effect, the statutory authorization in § 16-114-209(a) mirrors Ark. R. Civ. P. 11, which empowers the circuit court to impose “appropriate sanctions” on any party or attorney who files a pleading without forming a belief based on reasonable inquiry that the pleading is “well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass[,] cause unnecessary delay or needless increase in the cost of litigation.” Both Rule 11 and § 16-114-209(a) allow the circuit court to use its discretion when determining the appropriate sanction. Thus, it is clear that § 16-114-209(a) does not conflict with Rule 11.
The same cannot be said for section 16-114-209(b)(3)(B), in that it completely strips the circuit court of its discretion in the imposition of sanctions. This statutory provision mandates a particular sanction — the dismissal of a medical malpractice action — that conflicts with Rule 11 in two respects. First, the statute requires a particular sanction, whereas Rule 11 affords the circuit court broad discretion to decide an “appropriate sanction.” Second, it provides no opportunity for the plaintiff to withdraw or correct the alleged deficiency after notice of the challenge. Rule 11 specifically bars the filing of a motion for sanctions unless “the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected,” within 21 days after service of the motion, or such other period as the court may prescribe. Ark. R. Civ. P. 11(b). Thus, our rule allows for a “safe harbor” during which a party may, without penalty, correct an alleged deficiency.
As the majority noted, the Arkansas Constitution expressly grants this court the authority to develop rules of pleading, practice, and procedure.
GLAZE, J., joins this concurrence.