*1 ARNOLD, M.D. and v. James A. Brian M. WEIDRICK Memorial Hospital Springdale 91-364 Court of Arkansas
Supreme delivered June Opinion *2 Smith, P.A., Smith, C. Raymond by: Raymond C. for appellant. Firm, Garrett, Law
Bassett Walker Dale by: for appellee Arnold.
Davis, Cox, Cox & Don A. Wright, by: Taylor and Walter B. for appellee Springdale Memorial Hospital.
Robert L. Brown, Justice. The Brian M. appellant, Weidrick, failed to with the comply notice sixty-day statutory requirement prior filing a medical See malpractice complaint. Ark. Code Ann. 16-114-204(1987, 1991). Based on Supp. this non-compliance, the Washington County granted Circuit Court summary judgments in favor of the appellees, Dr. James A. Arnold and Springdale Memorial on Hospital. single point appeal whether Rule 3 of our Rules of Civil Procedure regarding commencement of actions this superseded provision. did, We hold that it and we reverse the summary judgments and remand the case for a trial on the merits.
Dr. Arnold performed a bilateral meniscectomy and recon structive on the surgery at the appellant on appellee hospital December 1988. He was released on the following day, December 1988. examinations, After a series of follow-up went appellant to another on physician who January discovered a deep-pocket open-wound infection that has resulted in physical limitations. On 3, 1990, December two exactly years after the appellant’s release from the appellee hospital, appellant filed a medical malpractice against lawsuit the appel- two- within the just action was The commencement lees. Ark. Code suits by on malpractice imposed limitation period year was notice 1991). sixty-day No 16-114-203(a) (Supp. Ann. § action commencement of the two years prior within the given 16-114-204. Code Ann. as required to both 11, 1990, appellees, sent appellant On December was Service of summons mail, intent to sue. a notice of by regular moved hospital 1991. The appellee on April obtained 5, 1991, the same followed on judgment April summary Both appellees 1991. April Dr. Arnold on motion from Ark. Code with comply had failed the appellant asserted that 16-114-204(a) provides: Ann. § shall be commenced injury for medical No action *3 the upon person after service (60) days until at least sixty liable, or registered certified to be alleged or persons the person persons known address of mail to the last liable, alleged injuries of a written notice allegedly claimed. damages and the 5,1991, the appellant on June the on the motions hearing
At
3,
the commencement
governs
Civ. P. which
that Ark. R.
argued
of
actions,
the
notice
sixty-day
requirements
of civil
superseded
“A civil action is
Rule 3 states:
Ann.
16-114-204.
Code
clerk of the proper
with the
filing
commenced
a
complaint
filing.”
time of
date and precise
who shall note thereon the
court
holding in Jackson
court relied on our previous
The circuit
Ozment,
100,
and found that
We it, Arkansas statute, and the cases subsequent interpreting codified as Act 709 of now Rules of Civil Procedure. was a 16-114-201, 1991), (1987 Supp. et seq. Code Ann. § actions governing of act enacted for purpose comprehensive five, was section One facet of that enactment injury. for medical condition before notice to sue as a which the sixty-day provided Act 709 contained an for medical commencing injury. an action action had legal the threat of which stated that clause emergency and that the Act insurance rates for malpractice caused increased control the spiralling immediately help be effect given “should 2, 1979. into law on signed April The Act was of health care.” cost 709, this court adopted of Act Before the enactment forth set authority of Civil Procedure under Arkansas Rules own constitutional and inherent of 1973 and this court’s in Act 38 courts, the civil rules did in the but to regulate procedure power which was after the until July not become effective Procedure, 264 Ark. of 709. Re: Rules Civil enactment Act (Per 1978). Curiam Dec. Rule as of the civil rules part We adopted Supersession that all laws in conflict with the civil rules and provides Procedure, the Rules for Inferior Courts Rules of Appellate are superseded. for
Rule 3 of the Arkansas Rules of Civil Procedure provides civil it stated commencement of actions. As first that adopted, was commenced filing obtaining action service within Rule 3 was amended in filing. sixty days commencement eliminate the service requirement above, as with the clerk of provide, quoted filing compliant court is all that is to commence a civil proper action. required Procedure, In Re: Amendments to the Rules Civil (Per 1983). Curiam *4 Also, 1983, in this court refused to hold that Act was 709 or a violation of the Protection arbitrary Clause or Equal v. Rabon, 5, 652 constituted See 280 Ark. special legislation. Gay constitutional, (1983). S.W.2d 836 In that the was holding Act we observed that there was a rational basis the notice We did requirement. not consider the issue in that supersession case because it was not raised before trial court. Fuller,
In we considered two notice cases: v. Simpson Ozment, 281 Ark. 665 (1984) S.W.2d 269 and Jackson v. 100, 671 cases, 283 Ark. S.W.2d 736 In both we affirmed statute, notice but in constitutionality sixty-day Jackson we went further and held that Rule 3 did not supersede the notice adds additional requirements an to “simply step commencement of a medical case proper injury provided 142 Jackson, 101-103, Ark. at 671 S.W.2d 283 ARCP Rule
under 3." at 738. in 1988: Dawson v. decisions followed 1986 and
Two related I); Gerritsen, (1986) (Dawson Ark. Gerritsen, Dawson v. I, we observed that the issue II). supersession In Dawson
(Dawson case, and we announced our intention had been raised in that not our in Jackson v. Ozment at the next holding to reexamine II, was not an In Dawson supersession apparently opportunity. However, in the decision. in issue because it was not discussed whether to award fees attorney against losing deciding involved, and in favor of the doctor and the we hospital plaintiff notice was sixty-day “manifestly noted that the requirement “an obvious of which not equal may harsh” and hardship, II, in Ark. at exist elsewhere the law.” Dawson at S.W.2d 35. 1990, we confirmed the had point plaintiffs
In 1989 and
to
with the notice
in
literally
strictly
requirement
comply
Bard,
a civil action for medical
v.
injury.
order
commence
Cox
1, 786
Inc.,
S.W.2d 570
v. Osco
(1990);
Drug,
Ofili
431,
Now we are confronted with the directly supersession Ozment, issue for the time since In first Jackson supra. rules, reviewing the of the civil it is manifest and clear that history govern we intended for Rule 3 to commencement of all civil filing actions. These actions are commenced with the clerk of the court. The notice proper sixty-day requirement a civil commencing adds additional condition for action for medical and is at odds with Rule 3. Our holding injury directly Ozment, that this did not a conflict in Jackson supra, represent error, civil was and we overrule Jackson v. Ozment on procedure that point.
The Arkansas General to the Assembly granted from time Arkansas Court the Supreme power prescribe time rules of with to all respect pleading, practice, in civil of this Act 38 of cases all courts state. proceedings *5 now codified as Ark. Code Ann. 16-11-302 The this with “general Arkansas Constitution further endows court control over inferior courts of law equity.” superintending control includes Ark. Const. art. 4. General superintending in civil cases. There is no to rules power adopt procedure that the civil rules of is well- question power adopt procedure in constitutional and author grounded established as well as this court’s inherent ity authority.
Both contend that Ark. R. Civ. P. appellees carves out an this rulemaking court’s Rule exception authority. 81(a) reads:
These rules shall to all civil apply proceedings cogni- circuit, zable in the courts of this chancery probate state in those except instances where a statute which creates a or right, remedy proceeding specifically provides a different in which procedure, event the so shall specified apply. ours.) (Emphasis offer no appellees their interpretive authority support it is position. Accordingly, left to this court to determine what is meant aby right, created statutorily or remedy proceeding whether that exception to civil actions for applies medical malpractice.
We first observe action for medical did malpractice not as originate a right, created remedy, proceeding legisla it had tively; its at origins common law. Prosser in his distin guished treatise on torts refers to an article that traces the history Prosser, Torts, medical malpractice. Law §32, p.161, fn.32 (4th 1971). Ed. That article traces the first recorded case back to the fourteenth century:
The professional of the medical liability practitioner is almost as old as personal actions. This injury first recorded in case Anglo-American goes law back to the year Mort, 1374 when one J. surgeon, undertook to treat a wounded hand and acted in such a allegedly negligent manner as to maim the hand. While the action against surgeon was dismissed because it was brought “trespas armis, sur son case” rather than in vi et the court trespass indicated that if the surgeon had done as well as he was able and had all his employed diligence administering to “it is not patient, right that he should be held culpable,” *6 144 suggested of care Hippo- the standard
reflecting Oath. cratic Practitioners,
McCoid, Medical 12 Vand. The Care Required Rev., 549, (1959). 550 L. vein, the common recognized
In this same Arkansas has long and did so before the law action for medical malpractice See, Trammel, 207 709 in 1979. Farrier v. e.g., enactment of Act McDermott, 372, 18 Ark. (1944); S.W.2d 818 v. 188 Gray Ark. 505, 180 21 (1933); Hays, S.W.2d Plunkett v. Ark. 64 94 Dorr, Fike, 177 & Johnston v. Ark. (1929); Gray S.W.2d McKinnon, & v. (1928); Purifoy Spears 357, 270 Thus, (1925). S.W.2 524 we can conclude without Ark. are not creatures of that medical actions hesitancy malpractice common law. Anglo-American statute but are rooted the civil cause of action for medical Though malprac law, grounded tice was in the common the Arkansas General 709 of Assembly provides procedural enacted Act actions, including scheme for medical malpractice sixty-day notice, a civil commencing as a action. prerequisite whether, for our consideration is so question posed doing, or right, created a as remedy, proceeding We the Rule hold that it did contemplated by exception. not. rules, court intended the civil
What this when it adopted Rule 82 in was to from the rules particular, except special created statute which established different proceedings proce- from dures those to civil actions. We said as much applicable recent local election case where the statutes option providing for local elections were in conflict with seeming option rule, Ark. P. our default R. Civ. 55: The Arkansas Rules of Civil Procedure to civil apply actions. 2. A ordinary ARCP Rule civil action one another for the enforce- proceeding by party against ment or redress or right of a protection private preven- tion of a Ark. Stat. Ann. 27-106 private wrong. (Repl. 1979). other is a Every remedy proceeding. special Ann.,§ 1979). Stat. 27-107 Therefore a local (Repl. option election contest is a and it is not special proceeding, be applied. rules of civil procedure all of the necessary 631, 495 S.W.2d 849 Baker, 254 Ark. See Reed v. Andrews, Garrett Adams, 487 U.S. Andrews sub nom. cert. denied
(1987), . (1988) to multiple special referred this court has the years,
Over
*7
civil
do not constitute
statute which
created by
proceedings
68,
75
See,
Davis,
805 S.W.2d
305 Ark.
Brantley v.
e.g.,
actions.
will is a special proceeding
to
a
(1991) (a proceeding
probate
International,
Inc. v.
Code); Travelodge
the Probate
under
368,
Co.,
(Juvenile Court Act a provides special proceeding followed). child reform school and must be a (a) A Note to Rule 81 this commen Reporter’s provides 81(a) on the Rule “The would be those tary exception: exception established statute and the proceedings statute a prescribes different That is correct. The Rule procedure.” precisely is limited to created exception special proceedings exclusively by statue where a special procedure warranted. It appropriate was never the intention of this court to accede to the General on matters of civil for Assembly procedure civil actions. This is evidence a case where we refused to principle apply statutory procedure regulating content collection of a debt when the statue ran counter to Ark. R. Civ. P. Kesterson, 8. See Borg-Warner Acceptance Corp.
611, 708 so, doing S.W.2d 606 In we held the statute was Rule 8: superseded by
ARCP Rule 8 sets out the required content of a
complaint and of an answer. It is a rule of
not a matter of substantive
law.
Stat. Ann. 27-1142
does
therefore,
not conform with ARCP Rule
it is
*8
deemed to be
even
it
superseded
though
is not so listed in
18, 1978.
our
curiam
See Venable per
order of December
Becker,
287 Ark.
We can think of few rules more basic to the civil than process a rule defining means complaints are filed and commenced for a common law tort such actions as medical malpractice. intent of the express Arkansas Constitution and Act 3 8 of 1973 is for the governance of the of the courts of this state to fall within the of the power authority Arkansas Court. Supreme How civil actions are commenced is fundamen tal cog that wheel. procedural hold, therefore,
We that Rule 3 conflicts with directly Ark. supersedes 16-114-204 (1987, 1991) Supp. Code Ann.§ with to the commencement of civil respect actions. We reverse the this matter and send in favor of the appellees summary judgments merits. trial on the court for a back to circuit remanded. Reversed and
Hays, J., dissents. from I dissent dissenting. respectfully Hays, Judge,
Steele (1) this issue was for three reasons: holding Court’s today of Jackson v. overruling ago today’s decided eight years Ozment, (1984) significantly Ark. 671 S.W.2d decisis; (2) today the Court from the doctrine of stare detracts Constitution of the Arkansas powers violates the separation Rule of Civil Procedure when it holds that a court-imposed the court enacted after a statute preempts Rules; the Court misconstrues the promulgated of Ark. R. Civ. P. to Ark. Code Ann. 16-114- application § statute, Code I write not because the individual Ark. 16-114-204, but because I believe Ann. warrants the attention itself the arrogates the Court today prerogatives legislature.
I. DECISIS STARE notes, (“Rule As the we held that Ark. R. Civ. P. 3 majority 3”) did not Code Ann. 16-114-204 supersede preeempt Ozment, (“§ 16-114-204”). Jackson v. The issue in this supra. case was in Jackson: whether Rule as squarely presented amended in the statute enacted in We superseded 1979. held it did not. Gerritson,
In Dawson v.
(1986) (“Dawson I”), we indicated a
to reexamine
willingness
case,
our
in Jackson. Jackson and a related
holding
Simpson
Fuller,
(1984),
were
products
*9
court,
of a
divided
that the
sharply
perhaps leaving
impression
of those cases were infirm. But
underpinnings
a disposition
reverse,
reexamine is not a
commitment to
merely proposal
Bard,
during
revisit. Six
have
which Cox v.
302
years
elapsed,
1, 786
Inc.,
Ark.
S.W.2d 570
v. Osco
(1990) and
Drug,
Ofili
Gerritson,
Ark.
Stare decisis is the
reason for
principal
upholding
16-114-204
validity
Stare decisis is a
today.
policy §
adhering to
precedent
gives
the law. To
predictability
avoid unsettling
it is fundamental
to the
things,
common law.
Precedent governs
gives
until it
a result so
wrong, so
patently
unjust, that a breakdown becomes
manifestly
unavoidable. See
v. Pitts, et al.,2551239, 1252,
In more than a decade since 16-114-204 was as Act passed act, numerous challenges to the including constitutional arguments of due process have been equal protection re Rabon, pelled: Gay See v. 280 Ark. 652 S.W.2d (1983); Gerritson, Dawson v. 290 Ark. (1986), S.W.2d 714 (“Dawson I”); Gerritson, Dawson v.
33 (1988) (“Dawson II”); Inc., Lambert v. Beverly Enterprises, Bard, 753 F. Supp. (W.D. 1990); Cox v. supra; Ofili Inc., Ozment, Osco Drug, Jackson v. supra; supra; Simpson Fuller, supra. There is no injustice manifest here. The facts show that the was filed before notice was served. Upon receiving notice, “Motion to Dismiss” for failure to serve plaintiff had a clear alternative to defending motion and could have avoided the problem Plaintiff entirely. could have taken a voluntary nonsuit. Ark. R. 41(a). Civ. P. Plaintiff subsequently could have met the notice requirement, waited sixty days, refiled suit within the one-year extension of the statute of limitations. See Ark. Code Ann. 16-56-126 (1987). This is precisely we outlined in Dawson I.
Now the overrides the majority Arkansas on Legislature, perhaps available, the weakest ground and holds that the sixty- notice is day nothing more “a cog than in the wheel of civil and, hence, procedure” of this prerogative court under Rule 3. Today’s decision overrules a 1984 decision directly without giving sufficient to the weight need for certainty, uniformity, finality of result. *10 OF POWERS SEPARATION
II. the direction with disagreement my noted I have previously these concerning analysis of powers Separation Court’s of the State, in Ricarte opinion without dissented I issues. dissenting opinion in the joined (1986); 100, 718 S.W.2d I write to 5, 800 S.W.2d v. Sypult, in State has the Court direction with the disagreement my further express matters. in such taken cog.” a mere “procedural more than issue is at
The statute rule single as a procedural be read cannot 16-114-204 Section of a series Rather, parcel it is part legislature. the by enacted the common-law completely supplant laws that of substantive must be 16-114-204 action. In particular, malpractice medical § 16-114-203, of limitations statute with conjunction read § 16-114-205, case, providing injury medical statutory in a § in the damages complaint. of allegation of any for the elimination because clarity, for the current provisions I set out the law merely not provisions, invalidates those the Court today The amended decided this case. when the lower court as it stood text is underlined: Notice of intent to sue. 16-114-204. com- medical shall be injury No action for
(a) after service (60) days upon menced until at least sixty liable, certified or to be alleged or persons person of the or person last known address mail to the registered liable, alleged of the of a written notice persons allegedly Provided, service claimed. damages and the injuries of claimed damages alleged injuries written notice of delivery. hand also be made may of (60) sixty days notice is served within (b) If the suit described bringing of expiration period 16-14-203, of the action time for commencement from the service ninety days shall be extended mail, the registered notice. When service is certified be the date mailing the notice shall date service of the written notice. aside, with First, disagreed the legislature and albeit as an *11 some of of the statute. In order to ameliorate interpretations our decisions, of the effects those the legislature permitted delivery of Cox, the written notice hand to The (responding supra). also that the date of service the notice was the provided mailing date of the certified or letter. registered Finally, the legislature amended the extension of the statute of limitations from to seventy days. ninety statute, then, things:
The does several When in conjunc read tion with it basis §16-114-205, provides the the changing form damages of the complaint: specified cannot be in the publicly- filed but be must the complaint specified privately-mailed notice and special The subsequent interrogatory. Court Hook, considered this this provision term. See Travis v. (1991) (reversing circuit court’s dismissal holding
without that prejudice amended pleading striking sufficient, the amount dollar was under Ark. R. P. 15(a) Civ. fulfill the statutory requirement.1
The statutory scheme also of provides service the notice to sue will extend the automatically statutory limitations period. So, for example, reading one of the statute a permits person to i.e., mail a notice of sue intent to on the possible last on day, the 730th or two day full after date years of the tortious act. Service is on complete mailing and suit may be filed subsequently not less than sixty later not more than days ninety days later. Another reading of the statute be that the might limitations period actually expired; plaintiff mails certified letter on the 59th after the of day expiration statutory limitations period; not less sixty later, than later and days ninety not more than days plaintiff files suit. Thus the 16-114-204(b) (notice language “served within of the sixty days expiration” limitations period) arguably filing of a permits valid some five complaint months after the expiration statutory limitations period. While no one has these attempted argue to the interpretations Court, argument such would certainly ameliorate the harsh Procedure. Section 16-114-205 were matter. wrong numerous Compared reason “forms of was to§ enough 16-114-204,§ complaint” to have the represents 16-114-205 is far more intrusive on the Rules of filing partial wrong dismissed. This is a return to form pre-reform days with the purely wrong when there court or for procedural Civil These are not implausi- requirements. the notice consequences of the statute. language given interpretations ble the notice requirement exercise is that of this The point so restrictively. not be read alone and should cannot be read more than a mere clearly proce- requirement notice sixty-day bring at law so as to of an action in the commencement dural step that, of course. But as noted it is Mechanically, it under Rule 3. is an above, that. The notice requirement more than it is patently intended to alleviate what the of a scheme integral part saw as a matter of critical concern of Arkansas Assembly General That concern is forcefully expressed of this state. people *12 clause: emergency found, determined and declared It is hereby that the threat of actions for Assembly legal General in medical insurance which turn causes and malpractice an increase in health care costs a placing contributes to burden on those who can least afford such increases heavy the threat of such action contributes to and that expensive medical to be performed by physicians procedures others which otherwise would not be considered necessary Act should given and that this be effect immediately control the cost of health care. help spiraling The effect of unraveling decision the first in today’s step entire scheme. 16-114-205 for a statutory Assuming (providing § damages) without for a amount of prayer specific remains unchallenged, defendants now have one means of only ascertaining the amount of the in the monetary prayer complaint; that is are by filing special interrogatories. arguably Plaintiffs worse off than were the effect of decision they today’s before: from, reduces the limitations back to two period years as much as two months. arguably, and five years the Court’s of the statue Finally, interpretation today conflicts with the of the statute the federal interpretation given by court, courts in this state. In federal rules are purely procedural law, governed federal not In Beverly state law. Lambert Inc., 753 F. Enterprises, federal district court Supp. 16-114-204 because the court it as state applied interpreted § substantive law that had to be in a case. Were applied diversity the notice a “mere it would not requirement procedural cog,” federal court at all. in
apply Justice Darrell Hickman said: As
I this case contains opinion question dictum that could lead to an extension of this court’s rule We do not need to extend that we making power: power. to limit it and use it with careful restraint. That we need have not done. State, 208, 216,
Curtis
III. The Court too construes the today narrowly application above, Ark. R. Civ. P. et As 16-114-201 discussed seq. this is a scheme that comprehensive statutory completely replaces regulates the common-law action for medical It malpractice. *13 limitations, statute of the content the concerning of trial, allegations damages, of the allocation of burdens of at proof witnesses, limitations on of expert timing payments future and the of damages, consequences false as deliberately pleadings well of as the notice intent to sue. Either this entire section must together stand or it must fall. until Certainly, though, today’s decision, it was generally legislature understood that abol- ished common law actions for medical malpractice.
The concludes that the General cannot majority Assembly enough. do what it to do here it did not far attempted go because The Court leaves to the General the possibility open Assembly might that it arbitration as other adopt mandatory procedures, done, or, states have as the securities has done. The court industry Gay v. Rabon: noted as much in previously We note that recent statutes providing special pretrial actions, such as the malpractice in medical procedures medical malprac- claim for that a mandatory requirement action, filing board before to a review tice be submitted that of states and it appears in a number been enacted have Green, 428 Lacey them. upheld courts have majority cited therein. 1981) and cases (Del. Super. A.2d 1171 burdensome and is more this Obviously, precondition in issue here. the 60 notice day than delaying not read today’s 838. I do Gay, differently. any opinion circum- Ark. R. Civ. P. can be agree
I cannot that created proceedings vented by limiting exception “special where a appropriate statute exclusively by special law The has redefined Arkansas majority and warranted.” medical is still an action at common- declaring that malpractice — The moots the entire scheme holding statutory law. implicitly not the notice simply requirement —enacted limit common-law in medical actions. liability malpractice case, the issue in this opinion goes beyond majority certainly it that none of the modifications to opens possibility statutory law are valid. professional liability
Moreover, the from the language majority opinion quoted above that this Court does not consider a implies “special either or “warranted” in medical proceeding” “approprite” I its agree actions. cannot that this Court malpractice may impose own views as to the legislation. of substantive “appropriateness” Whether or not the scheme is warranted is not a Court; for this it is for the General question solely question Assembly.
It is will a safe decision at once prediction today’s increase and the confusion with Ricarte and compound begun perfected Sypult government as to branch has final word in the enactment of rules of evidence and procedure. dissent, For further this discussion and for the source of much of Watkins, see M. Gitelman & J. No Ricarte: Requiem for *14 Powers, Evidence, the Rules and the Rules Separation of Procedure, Notes, Civil 1991 Ark. L. at 27. reasons, For the I dissent. foregoing respectfully