Ruffins v. ER ARKANSAS, PA

Donald L. Corbin, Justice, dissenting. For some time, this court has recognized that medical malpractice and wrongful death are separate causes of action even though they may arise from the same negligent acts. Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247 , 432 S.W.2d 485 (1968). In Simmons First Nat’l Bank v. Abbot, 288 Ark. 304 , 705 S.W.2d 3 (1986), we affirmed the holding of Matthews that so long as the medical malpractice two-year statute of limitations has not run before a death caused by a medical injury, a wrongful death suit may be filed within the three-year statute of limitations for wrongful death even though the death was caused by a medical injury. However, we held that reduction to final judgment of the injured person’s claim for bodily injury “extinguishes any wrongful death claim by her next of kin that her bodily injuries subsequently cause her death.” Simmons, 288 Ark. 304, 309 , 705 S.W.2d 3, 6 . In Dawson v. Gerritsen, 295 Ark. 206 , 748 S.W.2d 33 (1988), appellees argued Matthews was no longer good law since it was decided before the legislature enacted Section 5 of Act 709 of 1979, codified as Ark. Code Ann. § 16-114-204 (1987). However, we declined to address “whether the legislature intended that actions for wrongful death resulting from medical malpractice be subject to Act 709.” Dawson, 295 Ark. 206, 209 , 748 S.W.2d 33, 34 .

Without overruling Matthews or any of our subsequent cases, the majority attempts to distinguish our subsequent cases to reach the holding that an action for wrongful death resulting from medical injury is subject to the provisions of the Medical Malpractice Act enacted by Act 709 of 1979. This is the crux of my dissent. One only has to read Matthews, Simmons First Nat’l Bank, Dawson, Brown I, Bailey, and Brown III to reach the inescapable conclusion that this court has recognized unwaveringly for a quarter of a century that an action for medical malpractice and an action for wrongful death are separate causes of action even though they may arise from the same negligent acts. For this court to '‘‘'distinguish'’'’ these cases so as to reach an opposite conclusion is an intellectual feat that I suspect exceeds our profession’s ingenuity. While this issue will be moot in the future by virtue of our decision in Weidrick v. Arnold, 310 Ark. 138 , 835 S.W.2d 843 (1992) we should follow the precedent which applies to this case.

In Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 562 , 732 S.W.2d 130, 132 (1987) (Brown I), while we found that Brown’s death was properly characterized as a medical injury, we found that the claim was founded on the wrongful death statute and, therefore, the three-year statute of limitation contained in the wrongful death statute applied. In explaining our decision we stated that

[o]ur wrongful death statute [creates] a new and separate cause of action which [arises] if death [is] caused by any wrongful act and which carries its own statute of limitations as part of that right. For this reason, the medical malpractice statute of limitations is irrelevant when a patient dies from his injuries before the two-year period has run.

We later determined that the injury in Brown I was not a medical injury (decedent in Brown was a patient at an alcoholism treatment center when he walked out of an unlocked door onto the roof of the building and either fell or jumped to his death). Bailey v. Rose Care Center, 307 Ark. 14 , 817 S.W.2d 412 (1991). In Bailey, we overruled Brown I to the extent that holding was in conflict with the holding in Bailey that the patient’s death was not caused by a medical injury (decedent in Bailey was a patient in a nursing home and left the nursing home unnoticed in his wheelchair and was subsequently struck by a pickup truck and killed instantly). The majority views our decision in Bailey as also overruling the decision in Brown I that the statute of limitations applicable to a wrongful death action where the cause of death was a medical injury was the statute of limitation for wrongful death and not the statute of limitation for medical malpractice. The majority extends our holding in Bailey too far. The only conflict between Brown I and Bailey was our determination that the injury in Brown I was a medical injury. Thus, Bailey only overrules Brown I to the extent our determination that the injury in Brown I was a medical injury is in conflict with the determination in Bailey that a similar injury was not a medical injury. Bailey does not affect the holding in Brown I that wrongful death and medical malpractice are separate actions and the medical malpractice statute of limitations does not apply to a wrongful death claim even if the cause of death is a medical injury.

After our decision in Bailey, the Brown case was appealed to us yet again. In Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361 , 823 S.W.2d 908 (1992) (Brown III), the trial court had dismissed appellant’s claim for failure to comply with the notice requirements of section 16-114-204. We reversed the trial court and said

[t]he issue of whether this is a medical malpractice action to be governed by the notice requirements and the two-year statute of limitations of the medical malpractice statutes or a wrongful death action was decided in Brown I. We held that this is a wrongful death action. Because this is a wrongful death action, compliance with the medical malpractice statutes, including § 16-114-204, is irrelevant.

Brown III, 308 Ark. 361, 363 , 823 S.W.2d 908, 909 . The majority attempts to ignore our clear statement in Brown III by saying it was decided on law of the case principles and contained no holding on the notice issue. The only issue in Brown III was whether the notice provisions of section 16-114-204 applied in a wrongful death action. The law of the case which Brown III relied upon was the holding in Brown I that the case was a wrongful death case in which the cause of death was a medical injury. The holding of Brown III was that the notice provisions of section 16-114-204 do not apply in a wrongful death case even though the cause of death was medical injury. This was not dictum as the majority contends. Under our previous case law, since the case before us is a wrongful death case, even though the cause of death was a medical injury, compliance with section 16-114-204 is not required. 1

I would reverse and remand for further proceedings consistent with this opinion.

Glaze and Brown, JJ., join in this dissent. We recently held that the notice provision of section 16-114-204 was superseded by Ark. R. Civ. P. 3. Weidrick v. Arnold, 310 Ark. 138 , 835 S.W.2d 843 (1992). However, appellant cannot rely on Weidrick since appellant did not raise the supersession argument below. Seyller v. Pierce & Co., 306 Ark. 474 , 816 S.W.2d 474 (1991).