stating that medical malpractice “lay at the very heart” of the plaintiff’s claim when decedent was killed by a suicidal driver which went undiagnosed at the moment because of a breakdown in communication between the defendant hospital and patient
How later courts described this case
- stating that medical malpractice “lay at the very heart” of the plaintiff’s claim when decedent was killed by a suicidal driver which went undiagnosed at the moment because of a breakdown in communication between the defendant hospital and patient
Written by the judges who cited it.
The opinion
Tom Glaze, Justice, dissenting in part. On November 8, 1994, the Estate of Tammy Harrison gave its first publication of notice of appointment of personal representative. Under Ark. Code Ann. § 28-40-111 (a)(4) (Supp. 1997), a copy of the notice must also be served upon all unpaid creditors whose names, status as creditors, and addresses are known to or reasonably ascertainable by the personal representative. The burden of proof of any issue as to whether a creditor was known to or reasonably ascertainable by the personal representative shall be upon the creditor claiming entitlement to such actual notice. Id. Moreover, § 28-40-111 (a)(1) provides that any claim for injury or death caused by the negligence of the decedent shall be filed within six months from the first publication date. See also Ark. Code Arm. § 28-50-101 (Supp. 1997). Here, that would be six months from November 8, 1994.
Diann Dodson filed her negligence suit against the Harrison Estate on December 14, 1994, or well within the six-month period. On March 9, 1995, the Drain Estate sent its complaint and motion to intervene to the Harrison Estate’s counsel, which was in compliance with the Harrison Estate’s published notice. The Harrison Estate offered no objection to the Drain Estate’s intervention. Apparently, the majority court holds that Dodson and Drain were not entitled to actual notice because they were not ascertainable as unpaid creditors, and that Dodson’s and Drain’s negligence claims were untimely because they were not filed in probate court. I disagree with both holdings.
Ark. Code Ann. §§ 28-40-114 and 28-50-101 (1987 and Supp. 1997, respectively) provide that persons with negligence claims must file them within six months from the first publication-of-notice date, and like the trial court, I believe Dodson and Drain complied with those provisions. In other words, the Harrison Estate was fully apprised of Dodson’s and Drain’s claims. The fact that the two claims were not filed in probate court, as such, is of no consequence, especially since those pertinent statutes fail to require those negligence claims to be filed in probate court. After all, probate courts act with limited authority, and in this situation, the statutes only provide that injured persons file their negligence claims within six months from the date of first publication, which Dodson and Drain did. See Estate of Wood v. Arkansas Dep’t of Hmn. Serv., 319 Ark. 697 , 894 S.W.2d 573 (1995); In Re: Estate of Jones, 317 Ark. 606 , 879 S.W.2d 433 (1994).
In addition, I note that, from the time the Harrison Estate was opened, the Estate was fully aware of Harrison’s alleged negligence that caused Dodson’s injury and Drain’s death. In my view, Dodson and Drain’s Estate should have been served with actual notice that the Harrison Estate had been opened. See Ark. Code Ann. § 28-40-111 (a) (4). In any event, all three of these parties had notice and information regarding their respective claims and defenses well within the six-month period provided for under §§ 28-40-111 and 28-50-101. As a consequence, the purpose of Arkansas’s probate-notice provisions were met, and I believe it is unfair to cut short Dodson’s and Drain’s negligence claims by adding the words “probate court” into the statutory provisions that only read to say such claims “shall be filed” within the required six-month period.