Ruffins v. ER ARKANSAS, PA

Robert L. Brown, Justice, dissenting. I join Justice Corbin’s dissent and further observe that the majority this date applies a patchwork quilt approach to this cause of action. We have held that a claim amy be brought for injuries like we have in this case either as a wrongful death action or medical malpractice. Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558 , 732 S.W.2d 130 (1987), (Brown I); see also Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247 , 432 S.W.2d 485 (1968). We have held that the two are alternative causes of action with different statutes of limitation. Id. The option is available even when a medical injury is involved such as we have in the present case. Id.

Today, we are saying, “Not so.” The majority holds that the 60-day notice provision in the Medical Malpractice Act may be plucked from that act and applied to a wrongful death action to foreclose further litigation under that statute.

There are several things wrong with this approach. First, the majority has endorsed a hybrid cause of action. Secondly, we decided this issue in Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361 , 823 S.W.2d 908 (1992) (Brown III), when we said:

Because this is a wrongful death action, compliance with the medical malpractice statutes, including § 16-114-204 [the 60-day notice statute], is irrelevant.

308 Ark. at 363 , 823 S.W.2d at 909 .

Finally, the fact that we subsequently decided that the injury in Brown I was not a medical injury does not negate the holding in Brown I that a medical injury claim could be brought either under the Medical Malpractice Act or as a wrongful death action.

I would reverse the trial court’s orders of dismissal and remand for trial.

Glaze and Corbin, JJ., join.