“Our wrongful death statute created a new and separate cause of action which could arise if death was caused by any wrongful act and which carries its own statute of limitations as part of that right.”
How later courts described this case
- “Our wrongful death statute created a new and separate cause of action which could arise if death was caused by any wrongful act and which carries its own statute of limitations as part of that right.”
Written by the judges who cited it.
The opinion
Tom Glaze, Justice, concurring. Because I have always adhered to the belief that Brown’s death was not a medical injury, I have been of the view that the medical malpractice action statutes are not applicable to this case. For that reason, I join the majority opinion. See Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 563 , 732 S.W.2d 130, 133 (1987) (Glaze, J., concurring) (Brown I); see also Bailey v. Rose Care Center, 307 Ark. 14 , 817 S.W.2d 412 (1991).
There may be some who read the majority decision to hold the medical malpractice action statutes, particularly the statutory notice provision [ Ark. Code Ann. § 16-114-204 (1987)], do not apply in a case where a death results from a medical injury. 1 That issue, however, was not fully developed and argued in this appeal.
This present appeal is the third one in this case, and the result reached here is based largely on the law of the case doctrine. As a caveat to those attorneys who might find themselves, one day, involved in a medical malpractice lawsuit where a death ensued from a medical injury, they would be prudent to assume the medical malpractice action statutes still apply. In particular, I suggest following the directives of the notice provisions in § 16-114-204 (1987 and Supp. 1991), at least, until this court or the General Assembly has made it clear those requirements do not apply.
In Brown I, the majority court found Brown’s death was a medical injury but applied the three-year wrongful death action statute of limitations rather than the two-year limitations set out in the medical malpractice statute, Ark. Code Ann. § 16-114-203 (1987). In a later decision, this court decided Brown’s injury did not fall within the definition of a medical injury. Bailey, 307 Ark. 14, 19 , 817 S.W.2d 412, 414 .