Crossett Health Center v. Croswell

George Bose Smith, J., dissenting. I think the appellant’s request for a directed verdict should have been granted, for the suit is barred by the statute of limitations. This is not a case in which the wrong to the plaintiff was fraudulently concealed, as there is no evidence that Dr. Cothern or any other agent of the hospital knew that a piece of wire had been left in the plaintiff’s body. There could be no conscious concealment of a fact which was unknown to the defendants.

The court relies on Burton v. Tribble, where we held that, regardless of the physician’s actual knowledge, he is under a duty to know whether a foreign object has been left in the wound, and on the basis of this imputed knowledge he is under a continuing duty to inform the patient of his carelessness. We distinguished a number of contrary holdings in other jurisdictions by pointing out that they were based on specific statutes requiring an action for malpractice to be brought within a certain period of time after the infliction of the injury. “But,” we said, (in 189 Ark. 58 , 70 S. W. 2d 505 ) “we have no such statute in this State.”

That case was decided in 1934. At the next session of the legislature Act 135 of 1935 was adopted. Both that Act and the present law provide: ‘ ‘ The time of the accrual of the cause of action shall be date of the wrongful act complained of and no other time. ’ ’ In view of the specific language in the Burton case, which was. undoubtedly known to the General Assembly, it is perfectly plain that the legislative intent was to change the rule of that case by supplying the omission that we had mentioned. There being no fraudulent concealment on the part of the appellant, it is our duty to give effect to the plain terms of the statute, however much we may doubt its wisdom. Holding this view, I express no opinion on the second point covered by the majority.

Holt, J., joins in this dissent.