Robert L. Brown, Justice.
The appellant, Brian M. Weidrick, failed to comply with the sixty-day statutory notice requirement prior to filing a medical malpractice complaint. See Ark. Code Ann. § 16-114-204(1987, Supp. 1991). Based on this non-compliance, the Washington County Circuit Court granted summary judgments in favor of the appellees, Dr. James A. Arnold and Springdale Memorial Hospital. The single point on appeal is whether Rule 3 of our Rules of Civil Procedure regarding commencement of actions superseded this statutory provision. We hold that it did, and we reverse the summary judgments and remand the case for a trial on the merits.
Dr. Arnold performed a bilateral meniscectomy and reconstructive surgery on the appellant at the appellee hospital on December 2, 1988. He was released on the following day, December 3, 1988. After a series of follow-up examinations, the appellant went to another physician on January 13, 1989, who discovered a deep-pocket open-wound infection that has resulted in physical limitations. On December 3, 1990, exactly two years after the appellant’s release from the appellee hospital, the appellant filed a medical malpractice lawsuit against the appellees. The commencement of the action was just within the two-year limitation period imposed on malpractice suits by Ark. Code Ann. § 16-114-203(a) (Supp. 1991). No sixty-day notice was given within the two years or prior to commencement of the action as required Code Ann. § 16-114-204.
On December 11, 1990, the appellant sent to both appellees, by regular mail, a notice of intent to sue. Service of summons was obtained on April 1, 1991. The appellee hospital moved for summary judgment on April 5, 1991, followed by the same motion from Dr. Arnold on April 16, 1991. Both appellees asserted that the appellant had failed to comply with Ark. Code Ann. § 16-114-204(a) which provides:
No action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed.
At the hearing on the motions on June 5,1991, the appellant argued that Ark. R. Civ. P. 3, which governs the commencement of civil actions, superseded the sixty-day notice requirements of Ark. Code Ann. § 16-114-204. Rule 3 states: “A civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing.” The circuit court relied on our previous holding in Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984) and found that Rule 3 did not supersede the sixty-day notice statute.
On appeal, the appellant urges this court to reexamine the supersession argument as we said we would do in Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986).
We begin by examining the history of the sixty-day notice statute, the subsequent cases interpreting it, and the Arkansas Rules of Civil Procedure. Act 709 of 1979, now codified as Ark. Code Ann. § 16-114-201, et seq. (1987 and Supp. 1991), was a comprehensive act enacted for the purpose of governing actions for medical injury. One facet of that enactment was section five, which provided the sixty-day notice to sue as a condition before commencing an action for medical injury. Act 709 contained an emergency clause which stated that the threat of legal action had caused increased rates for malpractice insurance and that the Act “should be given effect immediately to help control the spiralling cost of health care.” The Act was signed into law on April 2, 1979.
Before the enactment of Act 709, this court adopted the Arkansas Rules of Civil Procedure under the authority set forth in Act 38 of 1973 and this court’s own constitutional and inherent power to regulate procedure in the courts, but the civil rules did not become effective until July 1, 1979, which was after the enactment of Act 709. Re: Rules of Civil Procedure, 264 Ark. 964 (Per Curiam Dec. 18, 1978).
We adopted the Supersession Rule as part of the civil rules which provides that all laws in conflict with the civil rules and the Rules of Appellate Procedure, and the Rules for Inferior Courts are superseded.
Rule 3 of the Arkansas Rules of Civil Procedure provides for commencement of civil actions. As first adopted, it stated that an action was commenced by filing a complaint and obtaining service within sixty days of filing. Rule 3 was amended in 1983 to eliminate the service requirement for commencement and to provide, as quoted above, that filing a compliant with the clerk of the proper court is all that is required to commence a civil action. In Re: Amendments to the Rules of Civil Procedure, 279 Ark. 470, 651 S.W.2d 63 (Per Curiam 1983).
Also, in 1983, this court refused to hold that Act 709 was arbitrary or a violation of the Equal Protection Clause or constituted special legislation. See Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). In holding that the Act was constitutional, we observed that there was a rational basis for the notice requirement. We did not consider the supersession issue in that case because it was not raised before the trial court.
In 1984, we considered two notice cases: Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984) and Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984). In both cases, we affirmed the constitutionality of the sixty-day notice statute, but in Jackson we went further and held that Rule 3 did not supersede the notice requirements which “simply adds an additional step to the proper commencement of a medical injury case provided under ARCP Rule 3." Jackson, 283 Ark. at 101-103, 671 S.W.2d at 738.
Two related decisions followed in 1986 and 1988: Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986) (Dawson I); Dawson v. Gerritsen, 295 Ark. 706, 748 S.W.2d 33 (1988) (Dawson II). In Dawson I, we observed that the supersession issue had not been raised in that case, and we announced our intention to reexamine our holding in Jackson v. Ozment at the next opportunity. In Dawson II, supersession was apparently not an issue because it was not discussed in the decision. However, in deciding whether to award attorney fees against the losing plaintiff and in favor of the doctor and the hospital involved, we noted that the sixty-day notice requirement was “manifestly harsh” and “an obvious hardship, the equal of which may not exist elsewhere in the law.” Dawson II, 295 Ark. at 211, 738 S.W.2d at 35.
In 1989 and 1990, we confirmed the point that plaintiffs had to comply literally and strictly with the notice requirement in order to commence a civil action for medical injury. Cox v. Bard, 302 Ark. 1, 786 S.W.2d 570 (1990); Ofili v. Osco Drug, Inc., 300 Ark. 431, 780 S.W.2d 11 (1989).In neither case was supersession discussed.
Free access — add to your briefcase to read the full text and ask questions with AI
Robert L. Brown, Justice.
The appellant, Brian M. Weidrick, failed to comply with the sixty-day statutory notice requirement prior to filing a medical malpractice complaint. See Ark. Code Ann. § 16-114-204(1987, Supp. 1991). Based on this non-compliance, the Washington County Circuit Court granted summary judgments in favor of the appellees, Dr. James A. Arnold and Springdale Memorial Hospital. The single point on appeal is whether Rule 3 of our Rules of Civil Procedure regarding commencement of actions superseded this statutory provision. We hold that it did, and we reverse the summary judgments and remand the case for a trial on the merits.
Dr. Arnold performed a bilateral meniscectomy and reconstructive surgery on the appellant at the appellee hospital on December 2, 1988. He was released on the following day, December 3, 1988. After a series of follow-up examinations, the appellant went to another physician on January 13, 1989, who discovered a deep-pocket open-wound infection that has resulted in physical limitations. On December 3, 1990, exactly two years after the appellant’s release from the appellee hospital, the appellant filed a medical malpractice lawsuit against the appellees. The commencement of the action was just within the two-year limitation period imposed on malpractice suits by Ark. Code Ann. § 16-114-203(a) (Supp. 1991). No sixty-day notice was given within the two years or prior to commencement of the action as required Code Ann. § 16-114-204.
On December 11, 1990, the appellant sent to both appellees, by regular mail, a notice of intent to sue. Service of summons was obtained on April 1, 1991. The appellee hospital moved for summary judgment on April 5, 1991, followed by the same motion from Dr. Arnold on April 16, 1991. Both appellees asserted that the appellant had failed to comply with Ark. Code Ann. § 16-114-204(a) which provides:
No action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed.
At the hearing on the motions on June 5,1991, the appellant argued that Ark. R. Civ. P. 3, which governs the commencement of civil actions, superseded the sixty-day notice requirements of Ark. Code Ann. § 16-114-204. Rule 3 states: “A civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing.” The circuit court relied on our previous holding in Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984) and found that Rule 3 did not supersede the sixty-day notice statute.
On appeal, the appellant urges this court to reexamine the supersession argument as we said we would do in Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986).
We begin by examining the history of the sixty-day notice statute, the subsequent cases interpreting it, and the Arkansas Rules of Civil Procedure. Act 709 of 1979, now codified as Ark. Code Ann. § 16-114-201, et seq. (1987 and Supp. 1991), was a comprehensive act enacted for the purpose of governing actions for medical injury. One facet of that enactment was section five, which provided the sixty-day notice to sue as a condition before commencing an action for medical injury. Act 709 contained an emergency clause which stated that the threat of legal action had caused increased rates for malpractice insurance and that the Act “should be given effect immediately to help control the spiralling cost of health care.” The Act was signed into law on April 2, 1979.
Before the enactment of Act 709, this court adopted the Arkansas Rules of Civil Procedure under the authority set forth in Act 38 of 1973 and this court’s own constitutional and inherent power to regulate procedure in the courts, but the civil rules did not become effective until July 1, 1979, which was after the enactment of Act 709. Re: Rules of Civil Procedure, 264 Ark. 964 (Per Curiam Dec. 18, 1978).
We adopted the Supersession Rule as part of the civil rules which provides that all laws in conflict with the civil rules and the Rules of Appellate Procedure, and the Rules for Inferior Courts are superseded.
Rule 3 of the Arkansas Rules of Civil Procedure provides for commencement of civil actions. As first adopted, it stated that an action was commenced by filing a complaint and obtaining service within sixty days of filing. Rule 3 was amended in 1983 to eliminate the service requirement for commencement and to provide, as quoted above, that filing a compliant with the clerk of the proper court is all that is required to commence a civil action. In Re: Amendments to the Rules of Civil Procedure, 279 Ark. 470, 651 S.W.2d 63 (Per Curiam 1983).
Also, in 1983, this court refused to hold that Act 709 was arbitrary or a violation of the Equal Protection Clause or constituted special legislation. See Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). In holding that the Act was constitutional, we observed that there was a rational basis for the notice requirement. We did not consider the supersession issue in that case because it was not raised before the trial court.
In 1984, we considered two notice cases: Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984) and Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984). In both cases, we affirmed the constitutionality of the sixty-day notice statute, but in Jackson we went further and held that Rule 3 did not supersede the notice requirements which “simply adds an additional step to the proper commencement of a medical injury case provided under ARCP Rule 3." Jackson, 283 Ark. at 101-103, 671 S.W.2d at 738.
Two related decisions followed in 1986 and 1988: Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986) (Dawson I); Dawson v. Gerritsen, 295 Ark. 706, 748 S.W.2d 33 (1988) (Dawson II). In Dawson I, we observed that the supersession issue had not been raised in that case, and we announced our intention to reexamine our holding in Jackson v. Ozment at the next opportunity. In Dawson II, supersession was apparently not an issue because it was not discussed in the decision. However, in deciding whether to award attorney fees against the losing plaintiff and in favor of the doctor and the hospital involved, we noted that the sixty-day notice requirement was “manifestly harsh” and “an obvious hardship, the equal of which may not exist elsewhere in the law.” Dawson II, 295 Ark. at 211, 738 S.W.2d at 35.
In 1989 and 1990, we confirmed the point that plaintiffs had to comply literally and strictly with the notice requirement in order to commence a civil action for medical injury. Cox v. Bard, 302 Ark. 1, 786 S.W.2d 570 (1990); Ofili v. Osco Drug, Inc., 300 Ark. 431, 780 S.W.2d 11 (1989).In neither case was supersession discussed.
Now we are directly confronted with the supersession issue for the first time since Jackson v. Ozment, supra. In reviewing the history of the civil rules, it is manifest and clear that we intended for Rule 3 to govern commencement of all civil actions. These actions are commenced by filing a complaint with the clerk of the proper court. The sixty-day notice requirement adds an additional condition for commencing a civil action for medical injury and is directly at odds with Rule 3. Our holding in Jackson v. Ozment, supra, that this did not represent a conflict in civil procedure was error, and we overrule Jackson v. Ozment on that point.
The Arkansas General Assembly granted to the Arkansas Supreme Court the power to prescribe from time to time rules of pleading, practice, and procedure with respect to all proceedings in civil cases in all courts of this state. Act 38 of 1973, now codified as Ark. Code Ann. § 16-11-302 (1987). The Arkansas Constitution further endows this court with “general superintending control over inferior courts of law and equity.” Ark. Const. art. 7, § 4. General superintending control includes the power to adopt rules of procedure in civil cases. There is no question that the power to adopt civil rules of procedure is well-established and grounded in constitutional and statutory authority as well as this court’s inherent authority.
Both appellees contend that Ark. R. Civ. P. 81(a) carves out an exception to this court’s rulemaking authority. Rule 81(a) reads:
These rules shall apply to all civil proceedings cognizable in the circuit, chancery and probate courts of this state except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure, in which event the procedure so specified shall apply. (Emphasis ours.)
The appellees offer no interpretive authority to support their position. Accordingly, it is left to this court to determine what is meant by a statutorily created right, remedy or proceeding and whether that exception applies to civil actions for medical malpractice.
We first observe that an action for medical malpractice did not originate as a right, remedy, or proceeding created legislatively; it had its origins at common law. Prosser in his distinguished treatise on torts refers to an article that traces the history of medical malpractice. Prosser, Law of Torts, §32, p.161, fn.32 (4th Ed. 1971). That article traces the first recorded case back to the fourteenth century:
The professional liability of the medical practitioner is almost as old as personal injury actions. This first recorded case in Anglo-American law goes back to the year 1374 when one J. Mort, surgeon, undertook to treat a wounded hand and allegedly acted in such a negligent manner as to maim the hand. While the action against the surgeon was dismissed because it was brought in “trespas sur son case” rather than in trespass vi et armis, the court indicated that if the surgeon had done as well as he was able and had employed all his diligence in administering to the patient, “it is not right that he should be held culpable,” reflecting the standard of care suggested by the Hippocratic Oath.
McCoid, The Care Required of Medical Practitioners, 12 Vand. L. Rev., 549, 550 (1959).
In this same vein, Arkansas has recognized the common law action for medical malpractice and did so long before the enactment of Act 709 in 1979. See, e.g., Farrier v. Trammel, 207 Ark. 372, 18 S.W.2d 818 (1944); Gray v. McDermott, 188 Ark. 1, 64 S.W.2d 94 (1933); Plunkett v. Hays, 180 Ark. 505, 21 S.W.2d 851 (1929); Dorr, Gray & Johnston v. Fike, 177 Ark. 907, 9 S.W.2d 318 (1928); Spears & Purifoy v. McKinnon, 168 Ark. 357, 270 S.W.2 524 (1925). Thus, we can conclude without hesitancy that medical malpractice actions are not creatures of statute but are rooted in the Anglo-American common law.
Though the civil cause of action for medical malpractice was grounded in the common law, the Arkansas General Assembly enacted Act 709 of 1979, which provides a procedural scheme for medical malpractice actions, including the sixty-day notice, as a prerequisite to commencing a civil action. The question posed for our consideration is whether, by so doing, the legislature created a statutory right, remedy, or proceeding as contemplated by the Rule 81(a) exception. We hold that it did not.
What this court intended when it adopted the civil rules, and Rule 82 in particular, was to except from the rules special proceedings created by statute which established different procedures from those applicable to civil actions. We said as much in a recent local option election case where the statutes providing the procedure for local option elections were in seeming conflict with our default rule, Ark. R. Civ. P. 55:
The Arkansas Rules of Civil Procedure apply to civil actions. ARCP Rule 2. A civil action is an ordinary proceeding by one party against another for the enforcement or protection of a private right or redress or prevention of a private wrong. Ark. Stat. Ann. § 27-106 (Repl. 1979). Every other remedy is a special proceeding. Ark. Stat. Ann.,§ 27-107 (Repl. 1979). Therefore a local option election contest is a special proceeding, and it is not necessary that all of the rules of civil procedure be applied. See Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973).
Garrett v. Andrews, 294 Ark. 160, 167, 741 S.W.2d 257, 260 (1987), cert. denied sub nom. Andrews v. Adams, 487 U.S. 1219 (1988).
Over the years, this court has referred to multiple special proceedings created by statute which do not constitute civil actions. See, e.g., Brantley v. Davis, 305 Ark. 68, 805 S.W.2d 75 (1991) (a proceeding to probate a will is a special proceeding under the Probate Code); Travelodge International, Inc. v. Handleman National Book. Co., 288 Ark. 368, 705 S.W.2d 440 (1986), cited with approval, May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990) (garnishment is a special statutory procedure); Liles v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980) (election contests are special proceedings authorized only in accordance with constitutional or statutory provisions); Coleman v. Coleman, 257 Ark. 404, 520 S.W.2d 239 (1974) (a will contest is not a civil action where the civil code applies but instead a special proceeding where the right to contest is governed by the Probate Code); Mack Trucks of Arkansas, Inc. v. Yarbrough, 251 Ark. 618, 473 S.W.2d 889 (1971) (action in replevin is a special proceeding fixed by statute for possession of property); State v. Snow, 230 Ark. 746, 324 S.W.2d 532 (1959) (commitment of a tubercular person under the Act is neither a civil nor criminal proceeding but a special proceeding); Beaver Bayou Drainage Dist. v. Lee-Phillips Drainage Dist., 221 Ark. 550, 254 S.W.2d 465 (1953) (petition to levy tax to improve ditches is a special proceeding within the jurisdiction of the county court); Burton v. Ward, 218 Ark. 253, 236 S.W.2d 65 (1951) (statutory proceeding to condemn land is a special proceeding for the purpose of determining compensation to the owner). Velvin v. Kent, 198 Ark. 267, 128 S.W.2d 686 (1939) (the changing of a county seat is a special proceeding and regarded as such by the legislature and judiciary); Bullion v. Pope, 192 Ark. 959, 96 S.W.2d 465 (1936) (statute provides a special proceeding for protection of the assets of an insolvent insurance organization and is the exclusive method for determining solvency of such companies); Ex parte Kelley, 191 Ark. 848, 88 S.W.2d 65 (1935) (Juvenile Court Act provides a special proceeding for committing a child to reform school and must be followed).
A Reporter’s Note to Rule 81 (a) provides this commentary on the Rule 81(a) exception: “The exception would be those proceedings established by statute and the statute prescribes a different procedure.” That is precisely correct. The Rule 81(a) exception is limited to special proceedings created exclusively by statue where a special procedure is appropriate and warranted. It was never the intention of this court to accede to the General Assembly on matters of civil procedure for civil actions.
This principle is evidence by a case where we refused to apply a statutory procedure regulating the content of a complaint for collection of a debt when the statue ran counter to Ark. R. Civ. P. 8. See Borg-Warner Acceptance Corp. v. Kesterson, 288 Ark. 611, 708 S.W.2d 606 (1986). In doing so, we held the statute was superseded by Rule 8:
ARCP Rule 8 sets out the required content of a complaint and of an answer. It is a rule of procedure and not a matter of substantive law. Ark. Stat. Ann. § 27-1142 does not conform with ARCP Rule 8, and therefore, it is deemed to be superseded even though it is not so listed in our per curiam order of December 18, 1978. See Venable v. Becker, 287 Ark. 236, 697 S.W.2d 903 (1985). A suit to collect a debt is not a special proceeding as contemplated by ARCP Rule 81(a), and therefore, it is not subject to a different statute.
288 Ark. at 614; 708 S.W.2d at 607. There is no discernable difference between our holding in Borg-Warner and our holding in this case.
We can think of few rules more basic to the civil process than a rule defining the means by which complaints are filed and actions commenced for a common law tort such as medical malpractice. The express intent of the Arkansas Constitution and Act 38 of 197 3 is for the governance of the procedure of the courts of this state to fall within the power and authority of the Arkansas Supreme Court. How civil actions are commenced is fundamental cog in that procedural wheel.
We hold, therefore, that Rule 3 directly conflicts with and supersedes Ark. Code Ann.§ 16-114-204 (1987, Supp. 1991) with respect to the commencement of civil actions. We reverse the summary judgments in favor of the appellees and send this matter back to circuit court for a trial on the merits.
Reversed and remanded.
Hays, J., dissents.