court, in 4-3 decision where death ensued from February 2, 1992, medical injury, dismissed claim not filed until May 1994
How later courts described this case
- court, in 4-3 decision where death ensued from February 2, 1992, medical injury, dismissed claim not filed until May 1994
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice, dissenting. The majority opinion, in essence, does away with the cause of action for wrongful death in connection with medical injuries when the Medical Malpractice Act and the Wrongful Death Act conflict. In doing so, it construes a general repealer clause in the Medical Malpractice Act as repealing the Wrongful Death Act for such injuries. General repealer clauses are not favored unless there is plain conflict between the two statutes. See Winston v. Robinson, 270 Ark. 996 , 606 S.W.2d 757 (1980); 1A Norman J. Singer, Sutherland Statutory Construction § 23.08, p. 334-335 (5th ed. 1993). The majority decision errs in deviating from this principle and in construing a repeal of the wrongful death cause of action under these circumstances without more explicit direction from the General Assembly.
Contrary to the majority’s conclusion, the case of Ruffins v. ER Arkansas P.A., 313 Ark. 175 , 853 S.W.2d 877 (1993), did not hold that the Wrongful Death Act, codified at Ark. Code Ann. § 16-62-102 (Supp. 1995), had been superseded in cases dealing with medical injuries. In Ruffins, we held that the notice provision of the Medical Malpractice Act had to be followed even in wrongful death actions. We noted that because of Weidrich v. Arnold, 310 Ark. 138 , 835 S.W.2d 843 (1992), which eliminated the notice requirement as a condition for commencing medical malpractice actions, the Ruffins holding “has very little significance as a precedent.” Ruffins, 313 Ark. at 177 , 853 S.W.2d at 878 . We expressly did not decide which statute of limitations applied between the Medical Malpractice Act (two years) and wrongful death actions (three years). Indeed, we stated:
The issue here, regardless of which statute of limitations controls, is whether the then required notice provision of the Medical Malpractice Act ... is applicable. (Emphasis supplied.)
Ruffins, 313 Ark. at 178 , 853 S.W.2d at 879 . We clearly left the issue of limitations open. The Ruffins case simply cannot support the far-reaching holding of the instant case.
By striking down wrongful death actions for medical injuries on limitations grounds, the majority decision, without saying so, overrules two cases of this court — Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247 , 432 S.W.2d 485 (1968) and Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558 , 732 S.W.2d 130 (1987), overruled in part by Bailey v. Rose Care Ctr., 307 Ark. 14 , 817 S.W.2d 412 (1992) (injury was not a medical injury). The Matthews case was decided before the enactment of the Medical Malpractice Act in 1979, but a two-year limitations period for medical malpractice was on the books. The Brown case was decided after the enactment of the 1979 Medical Malpractice Act. Both cases held that the 3-year statute of limitations under the Wrongful Death Act applied to deaths caused by medical injury. In fact, in Matthews, this court espoused the principle that when two statutes of limitations applied, public policy supported the longer statute. Whereas, the Ruffin decision left the Matthews and Brown decisions intact, today’s opinion casts them into oblivion without so much as a word. There should at least be an explanation as to why these cases have been put to rest.
Because of today’s opinion, the survivor of a person who dies two years after suffering a medical injury has no cause of action for wrongful death. Wrongful death actions have existed in this state since 1883. Bell v. Estate of Bell, 318 Ark. 483 , 885 S.W.2d 877 (1994) (citing Act 53 of 1883). Had the General Assembly desired to repeal the wrongful death cause of action for medical injuries in any respect, it could easily have done so in 1979 by a specific repealer in the Medical Malpractice Act. It did not. Nor did it do so after our decision in Brown v. St. Paul Mercury Ins. Co., supra, where we expressly affirmed use of the statute of limitations under the Wrongful Death Act for a medical injury. Now, almost 20 years after the enactment of the Medical Malpractice Act, we hold that a repeal was contemplated. I cannot make that interpretative leap.
I respectfully dissent.
Glaze and Roaf, JJ., join.