Morrison v. Jennings

943 S.W.2d 559, 328 Ark. 278, 1997 Ark. LEXIS 243

• Court: Supreme Court of Arkansas
• Decided: April 28, 1997
• Docket: 96-1453
• Status: Published

Opinions

Donald L. Corbin, Justice.

Appellant Tammy Morrison, Administratrix of the Estate of Sandra Kay Finsel, appeals the order of the Sebastian County Circuit Court, Greenwood District, granting summary judgment to Appellees Dr. Charles A. Jennings and Dr. Munir Zufari and dismissing with prejudice her wrongful-death action against them. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l), (15), and (17) (as amended by per curiam July 15, 1996). Appellant raises five points for reversal. We find no error and affirm.

Facts and Procedural History

The following facts are provided in Appellant’s initial complaint filed on July 11, 1994. On April 15 and 18, 1992, Appellee Dr. Zufari saw the decedent in his clinic in Mansfield, Arkansas, for pain in her back, pain and discomfort in her chest which radiated to her back, shortness of breath, and numbness in her arms. The decedent was subsequently admitted to the Crawford Memorial Hospital in Van Burén, Arkansas, on April 27, 1992, where she underwent surgery on her gallbladder, a laparoscopic cholecystectomy, performed by Dr. Zufari the following day. On April 29, 1992, the decedent was discharged from the hospital, but, for unknown reasons, Dr. Zufari did not dictate his discharge summary of the patient until August 30, 1992. The decedent was admitted to St. Edward Mercy Medical Center in Fort Smith, Arkansas, by Dr. Zufari on May 2, 1992, and subsequently discharged on May 8, 1992. The decedent was later readmitted to St. Edward Mercy Medical Center on May 12, 1992, where she remained until her death on July 11, 1992.

Appellant alleged in her first complaint that during the decedent’s hospitalization at St. Edward Mercy Medical Center, it was discovered that she had suffered at least two heart attacks prior to and at the time of her gallbladder surgery by Dr. Zufari. Appellant alleged that Dr. Zufari was negligent in his care of the decedent, thus, causing her wrongful death. None of the above-referenced dates contained in Appellant’s complaints were disputed by Dr. Zufari.

An amended complaint was filed on August 26, 1994, naming Appellee Dr. Jennings as a defendant. Specifically, Appellant alleged that the decedent was seen by Dr. Jennings on April 27, 1992, for consultation, and that Dr. Jennings had cleared her for surgery. Appellant alleged that Dr. Jennings was negligent in his care of the decedent. In his answer, Dr. Jennings admitted that he did see the decedent on that date and that he issued a consultation report. None of the relevant dates in the amended complaint were disputed by Dr. Jennings.

On March 7, 1996, Appellees moved separately for summary judgment on the ground that Appellant’s claim was barred by the two-year statute of limitations applicable to medical malpractice actions as provided in Ark. Code Ann. § 16-114-203 (Supp. 1991).

In her response, Appellant argued that summary judgment was not appropriate for several reasons, including the following: (1) The claims of the decedent and Ashley Finsel, the decedent’s minor heir, were preserved by the general savings clause; (2) the Medical Malpractice Act is special legislation in violation of Amendment 14 of the Arkansas Constitution; (3) the statute of limitations for medical malpractice claims as applied in wrongful-death actions denies equal protection of the law in violation of both the Arkansas and United States Constitutions; (4) the statute of limitations did not begin to run against Dr. Zufari until he dictated his discharge summary on August 30, 1992; and (5) this court’s opinion in Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996), should not be followed or should, in the alternative, be overruled.

On March 28, 1996, after both motions for summary judgment, as well as Appellant’s response thereto, had been filed, Appellant filed a second amended complaint, this time alleging that Dr. Zufari had fraudulently concealed his negligence. The Appellant alleged that by not dictating his discharge summary until after the decedent’s death, and by including in that summary a statement referencing Dr. Jennings’s report, which Dr. Zufari allegedly knew to be false, Dr. Zufari had fraudulently concealed his negligence. Appellant alleged that because Dr. Zufari knew that the statement by Dr. Jennings was false, its inclusion in his report constituted fraudulent concealment of his own negligence in the care and treatment of the decedent.

In an order filed August 19, 1996, the trial court granted summary judgment to both Appellees on the bases that there were no genuine issues of material fact left to be resolved and that Appellant’s cause of action was barred by the statute of limitations. The trial court’s order reflected that the cause of action was dismissed with prejudice. This appeal followed.

Standard of Review

Summary judgment is to be rendered only in those instances where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ARCP Rule 56(c); Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pastchol, 326 Ark. 140, 929 S.W.2d 713. On appeal, we view all proof submitted in a light most favorable to the non-moving party, with any doubts or inferences resolved against the moving party. Id.

Ashley Finsel’s Claim

Appellant contends that her claim was not barred by the statute of limitations because Ashley Finsel’s claim could not be barred until she reached the age of twenty-four years as provided in Ark. Code Ann. § 16-56-116(a) (1987). Ashley, who was eight years old at the time of the decedent’s death, is the decedent’s minor granddaughter of whom the decedent was legal guardian up to the time of her death, when Appellant was appointed as Ashley’s guardian. Appellant does not contend that the suit instituted below was filed by her in her capacity as legal guardian of Ashley. Rather, it is evident from the pleadings that Appellant brought this suit in her capacity as administratrix of the decedent’s estate. Thus, because Ashley is not a party to the suit, we do not reach the merits of this argument. See ARCP Rule 17(b); Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).

Special Legislation

Appellant argues that the Medical Malpractice Act is special legislation in violation of Amendment 14 to the Arkansas Constitution. Appellant raised this argument below in her response to Appellees’ motions for summary judgment. We do not reach the merits of this claim, as it is evident from the abstract that Appellant did not obtain a ruling from the trial court on this issue. In its order, the trial court merely stated that there was no genuine issue of material fact and that the claim was barred by the statute of limitations. Such a ruling does not sufficiently address Appellant’s constitutional claim. This court has repeatedly stated that the failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes a review of the issue on appeal. See, e.g., Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996); Technical Servs. of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995); Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994).

Equal Protection

Appellant argues that our application of the two-year medical malpractice statute of limitations to wrongful-death actions violates notions of due process and equal protection under the federal and state constitutions. Appellant additionally argues that such application also violates the “open court” provision contained in Article 2, Section 13, of the Arkansas Constitution, which provides that all persons are entitled to a certain remedy in the law and ought to be able to obtain justice freely.

Appellant raises her argument concerning this state’s “open court” policy for the first time on appeal and, as such, we do not address it. Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). We also decline to address the merits of Appellant’s equal protection and due process argument for two reasons. The first reason is that the abstract does not reflect that Appellant ever obtained a ruling on her constitutional argument from the trial court. As previously stated, we do not reach issues not ruled upon below, even constitutional issues.

The second reason we do not address this argument is that Appellant lacks standing to raise this issue because she is not a member of the class of persons she claims will be deprived of due process and equal protection of the law, namely those persons with claims on behalf of persons who died as the result of a medical injury more than two years from the date of the injury. In order for a litigant to have standing to challenge the constitutionality of a law, it must be unconstitutional as applied to him. Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991). The general rule is that one must have suffered injury or belong to a class which is prejudiced in order to have standing to challenge the validity of a law. Id. Constitutional rights are personal rights and may not be raised by a third party, although there is a narrow exception for cases in which the issue would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the interest of the party whose constitutional rights were allegedly deprived would be adequately represented. Id. That exception does not apply here. Appellant thus lacks standing to raise this equal protection argument.

Fraudulent Concealment

Appellant argues that the statute of limitations did not begin to run on her claim against Appellee Dr. Zufari until he had dictated his discharge summary on August 30, 1992, approximately one and one-half months after the decedent’s death. Appellant makes two separate, unrelated arguments in support of this point.

In the first instance, Appellant argues that the statute of limitations should have been tolled until the doctor completed his discharge summary because it would be unfair and inequitable otherwise. Appellant then proceeds to analyze her assertion under the continuous-treatment doctrine. We find no similarity between a doctor’s failure to dictate an immediate written report and a doctor’s continuous treatment of a patient, especially in this case, as the decedent died prior to the time Dr. Zufari completed his report. Appellant’s argument that the decedent was under Dr. Zufari’s continual treatment even after she had died is clearly not well grounded in law and no authority is offered to support this contention. Assignments of error that are unsupported by convincing argument or authority, will not be considered on appeal where it is not apparent without further research that they are well taken. Moorman v. Priest, 310 Ark. 525, 837 S.W.2d 886 (1992).

In the second instance, Appellant contends that Dr. Zufari fraudulently concealed his alleged negligence when he referred to the findings made by Dr. Jennings concerning the decedent’s suitability for surgery. The offending statement in Dr. Zufari’s discharge summary reads:

His impression was cholelithiasis, abnormal EKG without documented evidence of coronary artery disease, and suspect her EKG may well be abnormal variant.

Appellant asserts that this statement concerning Dr. Jennings’s finding of an abnormal EKG without documented evidence of coronary artery disease constituted fraudulent concealment because Dr. Zufari was allegedly aware of such documented evidence from a previous testing of the decedent in July 1990. Appellant does not, however, explain how Dr. Zufari’s reference to what another doctor concluded rises to the level of an attempt by Dr. Zufari to fraudulently conceal his own alleged negligence. Again, as above, we decline to address this argument because Appellant has cited no convincing authority or argument in support of her allegation.

Stare Decisis

Lastly, Appellant argues that we should not apply our holding in Hertlein, 323 Ark. 283, 914 S.W.2d 303, or, in the alternative, that we should overrule that decision completely. Appellant offers several reasons for overruling that decision, none of which are persuasive. Since our decision in Hertlein, this court has had the opportunity to revisit the issue of whether the two-year statute of limitations found in the Medical Malpractice Act applies to claims involving the death of a person as a result of medical injury in Pastchol, 326 Ark. 140, 929 S.W.2d 713.

The facts presented in Pastchol are similar to those presented here. In Pastchol, the appellant argued that the action was one of wrongful death, not medical malpractice, and that, as such, the trial court should have applied the three-year statute of limitations for wrongful-death actions as provided in Ark. Code Ann. § 16-62-102 (1987), instead of the two-year period for medical malpractice actions found in section 16-114-203. The appellant further asserted that the two causes of action were separate and distinct even though the cause of death in that case was alleged to have resulted from a medical injury. This court upheld its previous rulings in Hertlein, 323 Ark. 283, 914 S.W.2d 303, and Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), concluding that because the language of the Medical Malpractice Act provides that the act supersedes any inconsistent provision of law, the two-year statute of limitations provided in the act applies to any claim of medical injury, regardless of whether the injured person ultimately died as a result. In the present case the alleged cause of the decedent’s death is a medical injury; thus, the two-year statute of limitations provided in section 16-114-203 is applicable.

Section 16-114-203 provides in pertinent part:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.

(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.

Appellant has not pleaded a specific date when the alleged negligent injury occurred with regard to Dr. Zufari. Instead, the complaints allege that, “[d]uring her hospitalization at St. Edward, it was discovered that the Decedent had suffered at least two heart attacks prior to and at the time of her gallbladder surgery by [Dr. Zufari]. ” It thus appears that the alleged negligence of Dr. Zufari occurred prior to the time the decedent was admitted to St. Edward Mercy Medical Center. In any event, according to the complaints filed by Appellant, the latest possible date upon which Dr. Zufari could have committed a negligent act while treating the decedent would have been May 2, 1992, the date on which he admitted the decedent to St. Edward Mercy Medical Center following her gallbladder surgery. None of the abstracted complaints states affirmatively that Dr. Zufari had any further contact with the decedent after that date.

As for the claim against Dr. Jennings, the complaints reflect that the only contact he had with the decedent occurred on April 27, 1992. Thus, that appears to be the only possible date on which Dr. Jennings could have committed a negligent act upon the decedent.

Applying the two-year statute of limitations found in section 16-114-203, Appellant’s claim against both Dr. Zufari and Dr. Jennings is barred because it was not filed until July 11, 1994. For this reason, as well as the reasons stated above, we affirm the trial court’s judgment dismissing Appellant’s cause of action with prejudice as to both Appellees.

Arnold, C.J., Glaze, and Brown, JJ., dissent.