*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, 464 S.W.2d 573 Ark. ab Hallimanv. 250 void initio. from of a Farris, Ark. Actual knowledge at 508. Edmonsonv. (1971); Tuckerv. Johnson, not validate defective process. does proceeding to these (1982). According principles, S.W.2d 281 were to serve the Carruths improper. both attempts and dismissed. Reversed

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 921 S.W.2d 596 95-900 Arkansas Court of Supreme 13, 1996 delivered May Opinion *3 Firm, Smith, , Smith Law H. M. for Truman Donna Hayden by: appellants. Clark, & and ToniaP. Calvin Hall Friday, Eldredge by: Jones, J. Petrino, M.D., A. Arkansas

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. 59 S.W.2d 19 The Publishing Burton case was decided before there was a years separate limitations for After the negligence. applicable three-year run, tort statute of limitations had Ms. Burton that Dr. Tribble had allowed a roll of to remain her negligently gauze abdomen after There was no direct performing surgery. allegation her, that the knew the remained but the com physician gauze did he had plaint withheld” allege “carelessly negligently from Ms. Burton “information or of the situation. We knowledge” held the Trial erred in Court Dr. Tribble’s demurrer. overruling Our stated: opinion acts of the ball of

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, 168 S.W.2d 839 Huie, v. Ark.

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 707 S.W.2d 773 (1986), was beaten severely defendant. Silicone plaintiff by implants burst, her breasts and after the limitation had run statutory period she an action for for from that brought battery injuries resulting situation. decision to the effect statute Our was that the of limita- tions to run when the occurred rather than later began battery when the extent of was learned. cited the case We Faulkner injury and wrote: the medical case distinguished

[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, 256 S.W.2d 548 Ark. limitations medical current malpractice

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, 841 S.W.2d 619 (1992): of his

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., 824 S.W.2d 387 Pruitt v. (1992); Cargill, 683 S.W.2d 906 in favor of Dr. Sandefur is affirmed. The judgment judg- of Dr. Petrino and the is reversed and

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- 889 S.W.2d 31 (1994), supports interpretation appellees’ decision is but with all due that (b), clearly wrong, 114-203 respect, on now. It is no answer to the burden and we should so place say correct this court’s mistake statutory General Assembly — sum, this is this court’s to do In it so. interpretation responsibility a medi- and result reached in court’s Thompsonencourages opinion and conceal medical cal withhold provider’stendency that act. Provision until the limitation bars strict two-year an is in nature should be remedial (b) given interpretation time to file suit allow a reasonable would medically injured patients *11 left in them. Any negligently discover after they law licenses merely protects construction statutory other medical malpractice. INSURANCE COMPANY BUREAU MUTUAL

FARM Arkansas, Inc. v. K. DAVID Romeal 921 S.W.2d 95-838 of Arkansas Court Supreme delivered May Opinion