Looney v. Bolt

Tom Glaze, Justice. This case represents another of a series of cases involving a medical injury which resulted in death and and the question as to whether the wrongful-death cause of action is controlled by the Medical Malpractice Act. Carol Chamberlain underwent surgery at the Crawford Memorial Hospital on September 25, 1991, which was allegedly undertaken by Dr. Michael Bolt and Dr. Munir Zufari without her informed consent and without her knowledge of alternatives available for her condition other than surgery. Chamberlain died on November 16, 1991, but Sybil Looney, executrix of Chamberlain’s estate, did not file suit against Dr. Zufari, Dr. Bolt, and the hospital until December 2, 1993 — more than two years after Chamberlain’s surgery and the alleged malpractice. The trial court dismissed all of the estate’s claims based on summary-judgment motions. However, the Chamberlain estate brings this appeal from the lower court’s dismissal with prejudice against Zufari. The trial court’s reason for dismissing the estate’s suit against Zufari was that the estate’s cause of action is for wrongful death caused by medical injury and that Ark. Code Ann. § 16-114-203 (Supp. 1995) of the Medical Malpractice Act requires all acts for medical injury to be commenced within two years after the action accrues. Because the estate’s suit was filed after two years had expired, the trial court ruled the estate’s claim was procedurally barred. In its argument for reversal, the Chamberlain estate concedes this court, albeit in split decisions, has held that the Medical Malpractice Act applies to all causes of action for medical injuries accruing after April 2, 1979, and, as to such causes of action, the Act shall supersede any inconsistent provision of law. The estate further acknowledges that this court has specifically held that the Medical Malpractice Act’s two-year limitations period conflicts with the three-year limitations period provided under the Wrongful Death Act and is therefore controlling where death ensues from medical injuries. See Hertlein v. St. Paul Fire Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996) (court in 4-3 decision where death ensued from February 2, 1992 medical injury, dismissed claim not filed until May 1994); Pastchol v. St. Paul Fire & Marine Co., 326 Ark. 140, 929 S.W.2d 713 (1996) (court, in a 5-2 decision where plaintiff filed wrongful-death action alleged from a medical injury on August 26, 1991, dismissed because belated complaint filed on September 7, 1993); Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997) (court, in a 4-3 decision where alleged malpractice injury occurred on April 28, 1992, dismissed suit because complaint filed on July 11, 1994); Scarlett v. Rose Care, Inc., 328 Ark. 672, 944 S.W.2d 545 (1997) (court, in a 5-2 decision where medical injury alleged on May 10, 1993, was dismissed as barred because complaint filed on June 11, 1996); see also Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993). While the estate voices passing disagreement with this court’s foregoing holdings, it states that it does not ask us to overrule those decisions. Instead, the estate contends that, because Ms. Chamberlain’s medical injury occurred on September 25, 1991, and before any of the foregoing decisions, those holdings should not be retroactively applied to bar her claim. The estate submits that, at the time her claim accrued, reasonable doubt existed concerning whether the three-year wrongful-death statute or the two-year medical malpractice statute of limitations applied. Because Arkansas law generally favors applying the longer statutory period in these circumstances, the estate argues its entitlement to the three-year limitations period. See Dunlap v. McCarthy, 284 Ark. 5, 678 S.W.2d 361 (1984). To support the estate’s argument that this court’s foregoing decisions should not apply to her injury, the estate cites Chevron Oil Company v. Huson, 404 U.S. 97 (1971), where the Supreme Court considered three factors when deciding whether a decision should be applied prospectively or retroactively. However, Arkansas has its own settled law on this subject, and this court considered that law in Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). See also Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996); Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986); Taliaferro v. Barnett, 47 Ark. 359 (1886). In Baker, the court discussed its June 9, 1992 decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), where the court overruled Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984), holding the sixty-day notice provision (and ninety-day extension of limitations provision) of the Medical Malpractice Act were invalid because the sixty-day provision conflicted with Ark. R. Civ. P. 3. Baker argued her injury accrued before the Weidrick decision, and she was entitled to rely on the sixty-day notice provision and correlating ninety-day extension period because prior decisions had validated that law. The court rejected Baker’s argument because Weidrick had been decided when Baker filed her medical-injury action. The Baker court, citing Wiles, further relied on the principle that this court has long held that a decision of this court, when overruled, stands as though it had never been. See Wiles, 289 at 342. The estate attempts to distinguish its situation from Baker and points out that the three-year wrongful-death limitations statute was not ruled in conflict with the two-year malpractice limitations period until Hertlein was decided on February 5, 1996, or after the estate filed its claim in decedent-Chamberlain’s behalf. The estate further argues it justifiably relied on this court’s earlier decision in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987) (Brown I), where the court indicated Brown’s death was due to a medical injury, and as a consequence, the wrongful-death three-year statute of limitations applied. We reject the estate’s argument for two reasons. First, we point out that the Brown I case was overruled in 1991 by Bailey v. Rose Care Ctr., 307 Ark. 14, 817 S.W.2d 412 (1991). Moreover, when Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992) (Brown III), was decided on February 8, 1992, a caveat was issued by concurring opinion to the bench and bar underscoring that this court had not, as yet, decided whether the Medical Malpractice Act provisions applied in a case where a death results from a medical injury; it cautioned that it would be prudent to assume those provisions did apply. In sum, the earlier Brown I and Brown III cases offered the Chamberlain estate no precedent or comfort that the three-year wrongful-death limitations period applied to the estate’s case when it filed its action on December 2, 1993. Second, we underscore that this court’s decision in Ruffins v. ER Arkansas, P.A., supra, was decided on May 17, 1993, and that holding, and the language contained therein, offered sufficient reasons for the Chamberlain estate to believe the two-year limitations statute would govern Ms. Chamberlain’s wrongful-death case. We acknowledge the estate’s contention that the language in Ruffins is overbroad and is not controlling of the estate’s case. In this respect, the estate submits that, while the Ruffins decision held the sixty-day notice provision of the Medical Malpractice Act governed all causes of action for medical injuries, it argues the holding in Ruffins did not actually specify that two-year limitations provision of the Act would control medical injuries where a death ensued. The estate also mentions that Ruffins was a 4-3 decision which, in itself, was reason for the estate to believe some doubt remained, concerning whether the two-year limitations period might apply to the estate’s wrongful-death action. We see no merit in the estate’s contentions. The Ruffins court framed the issue covered there very broadly, saying, “Our case law has reserved ruling on the issue of whether actions for wrongful death resulting from medical malpractice cases are subject to the Medical Malpractice Act.” Ruffins, 313 Ark. at 180. Clearly this language undercuts any notion the Chamberlain estate may have had that Brown I was any precedent for the proposition that the three-year wrongful-death limitation applied when medical injuries were involved. The court then held as follows: The Medical Malpractice Act provides that it applies to “all causes of action for medical injury.” The language is clear, and we are constrained to follow it. Accordingly, we hold that, under the then existing law, notice had to be given in compliance with the Medical Malpractice Act. While only the notice provision was specifically brought into issue in Ruffins, the court, as a prerequisite, was compelled to decide the threshold issue that the Medical Malpractice Act governs all causes of action involving medical injuries, including those resulting in wrongful death. In sum, we fail to see any justifiable reliance on the estate’s part for it to assume the three-year limitations of the Wrongful Death Act would apply to its case. Nor are we aware of any reason to divert from our recent decisions that have consistently applied the Medical Malpractice Act retroactively to all causes of actions for medical injuries arising after April 2, 1979 •— the date of the Act’s passage.1 The Chamberlain estate lastly argues that the Medical Malpractice Act, particularly the two-year limitations provision, is unconstitutional because it denies a person’s right to equal protection, due process, redress for wrongdoing, privileges and immunities, and violates Arkansas’s constitutional prohibition against special legislation. These same constitutional challenges were raised in Morrison v. Jennings, supra, and like the plaintiff in Morrison, the estate here did not obtain a clear ruling from the trial court concerning those constitutional claims. See Morrison, 328 Ark. at 283-284. Instead, the trial court merely stated in its order granting Dr. Zufari’s summary judgment motion “that the Medical Malpractice Act is constitutional.” Because the trial court’s ruling does not sufficiently address the estate’s constitutional claims, a review of those issues is precluded. Id. In addition, the estate offers almost no legal citation of authority to support its arguments except to reference the constitutional provisions themselves.2 In other words, the estate offers no sound legal authority or convincing argument to support its multi-faceted constitutional claims. The estate does cite Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983), but that decision seems contrary to its constitutional arguments. There, this court considered the sixty-day notice provision against equal protection, due process, and special legislation claims. The Gay court concluded the vital question was one of reasonableness, and found no infringement upon the various constitutional provisions. The court held the legislature was not in error in determining that medical malpractice insurance rates were increasing and placing a heavy burden of medical expense on those who could least afford it. The court further stated the sixty-day notice requirement made it possible for the insurance carrier and the potential defendant to attempt to arrive at a settlement with the aggrieved person without the necessity of the parties incurring the expense of litigation. Id. at 8-9. In other words, the Gay court held that the Medical Malpractice Act was not arbitrary and capricious, but instead, the Act’s provisions were reasonably related to the legislative goal of reducing medical malpractice insurance costs.3 Because no clear ruling was obtained on the estate’s constitutional arguments or sound legal authority and convincing argument presented, we affirm on these constitutional points. Affirmed. Newbern, Brown, and Thornton, JJ., dissent. Footnotes [1] This court has consistently applied the Ruffins decision retroactively to prior alleged medical injuries in the Hertlein, Pastchol, and Morrison cases. [2] Regarding its special legislation argument, the estate does refer to Knoop v. The City of Little Rock, 277 Ark. 13, 638 S.W.2d 670 (1982), but mentions only generally the definitional statement, “a law is special in a constitutional sense when by force of an inherent limitation it arbitrarily separates some person, place, or thing from those upon which, but for such separation it would operate . . . .” [3] We note that the estate offers argument to distinguish Gay by stating the entire Medical Malpractice Act is unconstitutional because its goal can no longer be met since the sixty-day notice provision of the Act was invalidated in Weidrick. Again, the estate, except to reference a dissenting opinion, offers no legal authority to support its argument, challenging the Act.