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The Law of Medical Malpractice in Arkansas:

A Survey of Basic Considerations

This article provides an overview of Arkansas medical malpractice law. In Arkansas, the Legislature has sought to impose more stringent rules for medical malpractice claims, such as requiring pre-suit notice to defendants and limiting damages. But the Arkansas Supreme Court has struck down a number of these legislative efforts, holding that the judiciary, not the legislature, has the constitutional authority to adopt procedural court rules. Because of the state high court’s insistence on protecting its turf, the Arkansas Legislature has been partially stymied in its efforts to enact tort reform legislation designed to make it more difficult to bring malpractice suits.

Because it is useful for laypersons who have been injured by healthcare treatment to have some understanding of the law, the article will describe Arkansas law in plain language with minimal use of legal jargon, so that the material is accessible to non-lawyers as well as legal practitioners.

Section I below summarizes broad principles and concepts. Sections II through XI examine some of the mechanics of filing and litigating a medical malpractice action in Arkansas.

To jump directly to any topic in the Table of Contents, simply click on it.

I. Overview of Basic Principles and Concepts
II. Filing Deadlines for Medical Malpractice Claims
III. Other Requirements
IV. Immunities and Limitations on Liability
V. Medical Expert Witnesses
VI. Comparative Negligence/ Allocation of Damages
VII. Limitations on Damages
VIII. Limitations on Attorneys Fees
IX. Patient Compensation Funds
X. Apologies and Sympathetic Gestures
XI. Communications with Treating Physicians
XII. Disclaimer

I. Overview of Basic Principles and Concepts

Under Arkansas law, a plaintiff suing for medical malpractice has the burden of proving: (1)the applicable standard of health care practice; (2) that the medical provider failed to act in accordance with that standard; and (3) that such failure caused the plaintiff harm. In most but not all cases, expert testimony is necessary to make these showings. Dodd v. Sparks Regional Medical Center, 90 Ark. App. 191, 204 S.W.3d 579 (2005).

Generally speaking, healthcare providers in Arkansas are expected to exercise the degree of skill and learning ordinarily demonstrated by healthcare providers “engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality.”Ark. Code Ann. § 16-114-206(a)(1).

Arkansas’ main law addressing medical negligence is the Arkansas Medical Malpractice Act. This statute is the sole remedy formedical injury against a medical care provider.Ark. Code Ann. § 16-114-213.

II. Filing Deadlines for Medical Malpractice Claims

Basic Time Limit

In Arkansas, the basic time limit for filing a claim alleging medical malpractice is two years. Ark. Code Ann. § 16-114-203(a). The two-year time limit, referred to as a “statute of limitations,” begins running at the date of the alleged wrongful act. Thus, ordinarily, a plaintiff’s lawsuit will be tossed out of court as untimely if the plaintiff does not file suit within two years after the alleged negligence occurred.

Unlike some states, Arkansas does not generally pause the statute of limitations until the injury reasonably could have been discovered (i.e., a “discovery rule”).See Harris v. Ozment, 83 Ark. App. 94, 117 S.W.3d 647 (2003). But as discussed below, Arkansas does recognize certain limited situations in which the two-year time limit can be extended.

Foreign Objects

First, if the suit is based upon the discovery of a foreign object in a patient’s body (e.g., a sponge left during an operation), the two-year time limit can be extended. The clock for filing a malpractice lawsuit starts ticking on the date the foreign object is or reasonably should have been discovered. Ark. Code Ann. § 16-114-203(b);Reed v. Guard, 374 Ark. 1, 285 S.W.3d 662 (2008); Sargent v. Springer, 2010 Ark. App. 844, 378 S.W.3d 790.

Fraudulent Concealment

If a healthcare provider fraudulently covers up his or her negligence, the concealment can serve as grounds for extending the statute of limitations. For instance, in Howard v. Northwest Arkansas Surgical Clinic, P.A., a physician allegedly knew but failed to inform a patient that a portion of a needle had been left in the patient’s body after an excisional biopsy.“Until the concealment ends, the wrongful act continues,” the Arkansas Supreme Court explained, in holding that the statute of limitations could be extended. “We cannot imagine that the General Assembly intended to allow physicians to evade responsibility for negligent acts by knowingly concealing them from their patients until after the statute of limitations had run.”324 Ark. 375, 921 S.W.2d 596 (1996); see alsoDavis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).

Continuous Course of Treatment

The statute of limitations also can be extended if the patient received continuous treatment from the healthcare provider. The general concept is that if a patient continues to be treated by a physician, the patient should not be required to interrupt the treatment to bring suit simply because a statute of limitations is about to run. Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993); Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988).

For example, in Lane, the plaintiff contended that the treatment she received from her doctor for migraine headaches over the course of 18 years caused scarring and drug addiction. The Arkansas Supreme Court held that the facts fit squarely within the continuous-treatment doctrine and found her lawsuit to be timely, since it was filed within two years after the nearly two decades of medical treatment ended.

But the Arkansas courts will not pause the clock merely because the physician-patient relationship has continued in some form. Rather, the patient must receive continuing“active, ongoing medical care and attention.”Only then will the time limit for filing a malpractice suit be paused (or in legal terminology “tolled”) until the treatment ends.Baker v. Radiology Associates, 35 S.W.3d 354, 72 Ark. App. 193 (2000); see also Pledger v. Carrick, 362 Ark. 182, 208 S.W.3d 100 (2005); Fleming v. Vest, 2015 Ark. App. 636, 475 S.W.3d 576; Mendez v. Glover, 2010 Ark. App. 807, 379 S.W.3d 92.

Other Provisions

Under Ark. Code Ann. § 16-114-212, the statute of limitations can be extended for 90 days in certain circumstances if a plaintiff gives a healthcare provider advance notice before filing a malpractice lawsuit. But the constitutionality of this statute is in doubt. See Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994).

Wrongful Death

Although Arkansas has a separate statute of limitations for wrongful death claims (three years instead of two), the Arkansas Supreme Court has ruled that this provision is inapplicable to medical malpractice cases. Thus, even in situations in which a loved one dies as a result of a medical injury, the time limit for filing suit is generally two years from the healthcare provider’s alleged wrongful act. SeeDavis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005); Ark. Code Ann. § 16-62-102(c).

Injured Patients Who Are Minors

If the injured patient was a minor, different time limits apply. If an individual is nine years old or younger at the time of the allegedly negligent medical treatment, the minor(or his or her representative)has at least until the minor’s 11th birthday to commence a malpractice lawsuit.Ark. Code Ann. § 16-114-203(c).

And if the medical injury could not reasonably have been discovered before the minor’s 11th birthday, the time limit can be extended further.Id.

However, there are some restrictions. In Dachs v. Hendrix, parents of a stillborn baby asserted that they had until their child would have reached her 11th birthday to bring a malpractice suit. The Arkansas Supreme Court disagreed, explaining that if the Legislature’s intent was to give minors “who are stillborn until eleven years after their birth to commence suit for medical malpractice, that is not what the plain language”of the statute says. Instead, because the child tragically would not have an 11th birthday, the suit had to be brought within two years from the alleged malpractice.2009 Ark. 542, 354 S.W.3d 95; see also Shelton v. Fiser,340 Ark. 89, 8 S.W.3d 557 (2000).

III. Other Requirements

Presuit Notice

At one time, an Arkansas statute required a plaintiff to provide 60 days’ advance notice to a healthcare provider before filing a medical malpractice suit. However, the Arkansas Supreme Court struck down this requirement on constitutional grounds, concluding that the notice requirement added an extra procedural hurdle to the commencement of a lawsuit and thus infringed on the judiciary’s constitutional authority to prescribe procedural court rules. Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992).Consequently, malpractice plaintiffs in Arkansas no longer need to provide advance notice before filing their lawsuits.

Medical Expert Reports

The Arkansas high court also invalidated a statute that said plaintiffs must submit an affidavit from a medical expert within 30 days of filing their malpractice suit. Once again, the court ruled that the legislation interfered with the judiciary’s constitutional authority to prescribe procedural court rules. Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007). Consequently, malpractice plaintiffs in Arkansas no longer need to submit a medical expert affidavit within 30 days of filing their lawsuit.

Arbitration

Arbitration is a method of resolving disputes outside of court by agreeing to have the case heard by a professional arbitrator rather than a judge and jury. Unlike some states, Arkansas does not have a statute that imposes specific rules and procedures for medical malpractice arbitrations.

IV. Immunities and Limitations on Liability

Emergency Medical Care

In some states, plaintiffs who sue emergency room personnel for malpractice must prove their case by “clear and convincing” evidence. However, Arkansas does not have a statute that imposes a heightened standard of proof in this context.

Charitable Immunity

In Arkansas, the “charitable-immunity doctrine” protects some not-for-profit hospitals and medical facilities from malpractice claims.This doctrine is designed to protect charities’assets from being diminished to pay lawsuit damages. But even if a charitable hospital has immunity, that does not mean its insurance carrier does.

To determine whether an organization is entitled to charitable immunity, courts consider factors such as:whether the organization earned a profit; whether the organization depends on contributions and donations for its existence; whether the organization provides its services free of charge to those unable to pay; and whether the directors and officers receive compensation.No single factor is dispositive. See Downing v. Lawrence Hall Nursing Center, 2010 Ark. 175, 369 S.W.3d 8; Jackson v. Sparks Regional Medical Center, 375 Ark. 533, 294 S.W.3d 1 (2009); George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999).

Vicarious Liability

Arkansas protects medical care facilities from being held vicariously liable for the conduct of non-employees. If the only reason for naming the facility as a defendant is that a certain individual practices in the facility, the plaintiff must prove that the individual “is the employee of the facility” before the facility may be held liable for his or her negligence. Ark. Code Ann. § 16-114-210.

V. Medical Expert Witnesses

Basic Rule

Most medical malpractice cases depend heavily on medical expert witnesses. In Arkansas, if the alleged medical negligence “does not lie within the jury’s comprehension as a matter of common knowledge,” the plaintiff must present testimony from a medical expert witness. The expert witness must offer an opinion about the standard of health care expected for the same type of practice in the same or a similar locality, that the standard was breached, and that the breach caused the plaintiff’s injury.Ark. Code Ann. § 16–114–206.

Who Qualifies as Expert?

Although the Arkansas Legislature has enacted legislation requiring medical expert witnesses to be “of the same specialty” as the defendant,this statutory requirement is no longer in effect. The Arkansas Supreme Court struck it down on the ground that the legislation trod on the judiciary’s constitutional authority to establish procedural court rules. Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 14, 386 S.W.3d 385. “The authority to decide who may testify and under what conditions is a procedural matter solely within the province of the courts,” the high court declared. Thus the “same-specialty” requirement of Ark. Code Ann. § 16–114–206 is no longer in force.Id.; see also Heritage Physician Group, P.A. v. Minton, 2014 Ark. App. 155, 432 S.W.3d 682.

Same or Similar Locality

But one requirement that remains in effect is that a malpractice plaintiff must show the standard of acceptable health care in the same or a similar locality.Ark. Code Ann. § 16–114–206(a)(1).In other words, the plaintiff has the burden of proving the local standard of health care practice.

Arkansas courts are strict in enforcing this locality rule. In Mitchell v. Lincoln, the expert testimony was of no value because the expert’s affidavit failed to mention the standard of care in Baxter County, the locality in question. 366 Ark. 592, 237 S.W.3d 455 (2006). In another case, Plymate v. Martinelli, the court found it insufficient for a medical expert to address only state or national standards of healthcare practice among obstetrician/gynecologists, because the expert witness needed to offer testimony about local standards. 2013 Ark. 194 (not published in S.W.3d).

However, an expert witness can render an expert opinion about local standards without actually having practiced in the particular locality, as long as“the witness is familiar with the standard of practice in a similar locality.”Brazeal v. Cooper, 2016 Ark. App. 442, 503 S.W.3d 829. That is, the evidence must show that the expert is knowledgeable about healthcare standards in a particular practice area in a similar locality.

Similarity of localities “is based not on population or area, but on the similarity of the local medical facilities, practices, and advantages.”Heritage Physician Group, supra.

Defendant’s Own Opinion Testimony

No medical care provider in Arkansas is required to give expert opinion testimony “against himself or herself” regarding matters such as the relevant standard of care. Ark. Code Ann. § 16-114-207(3). This Arkansas privilege against testifying applies to trial, not to the discover phase of the lawsuit.

In Bedell v. Williams, a nursing home facility relied on this privilege to prevent its nurse employees from being compelled to offer medical expert opinions at trial.For an entity such as a nursing home or hospital, the state supreme court reasoned, the right to withhold against-interest testimony meant being entitled to stop its employees from testifying against it. 2012 Ark. 75, 386 S.W.3d 493. It is important to note that the statute applies only to expert opinion testimony, so it would not shield employees of a hospital or nursing home from having to testify about factual issues.

Under the statute, the right to decline to offer expert opinion testimony against oneself“shall not apply to discovery,” and “[d]iscovery information can be used at a trial as in other lawsuits.” Ark. Code Ann. § 16-114-207(3).See generally Whorton v. Dixon, 363 Ark. 330, 214 S.W.3d 225 (2005).

Arkansas Rules of Evidence

In deciding whether to permit expert witnesses to testify, Arkansas courts are guided by Arkansas Rule of Evidence 702, which states as follows:“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”This evidentiary rule (or a version of it) is expressly incorporated into the Arkansas Medical Malpractice Act. Ark. Code Ann. § 16-114-207(1)(“Rule 702 of the Uniform Rules of Evidence shall govern the qualifications of expert witnesses” in any action for medical injury).

VI. Comparative Negligence / Allocation of Damages

Sometimes a healthcare provider will attempt to cast blame for a poor treatment outcome on the patient, insisting that the patient caused his or her own injury by, for instance, neglecting to follow post-surgery instructions or supplying inaccurate health history information. To address situations in which a plaintiff bears some degree at fault, Arkansas applies the doctrine of “comparative negligence.” Under this doctrine, a patient’s own negligence does not necessarily preclude a malpractice lawsuit, but the damages are diminished in proportion to the degree of the patient’s own fault.For example, if the patient is 25 percent at fault for causing the medical injury (e.g., by being inattentive in following a doctor’s instructions), the patient’s monetary award will be reduced by 25 percent. But if the plaintiff is 50 percent or more at fault, the plaintiff is completely barred from receiving any amount of damages. Ark. Code Ann. §§ 16-64-122,16-55-216;see also Hagar v. Shull, 2017 Ark. App. 185, — S.W.3d —-.

On a separate issue, if there is more than one negligent healthcare provider, a court must decide which defendant pays what share of the total damages. Under Arkansas law, each defendant is liable for only so much of the plaintiff’s damages as are allocated to that defendant in proportion to that defendant’s percentage of fault. For instance, if a defendant bears 30 percent of the fault, that defendant pays 30 percent of the monetary damages.Ark. Code Ann. § 16–55–201; see also ProAssurance Indem. Co., Inc. v. Metheny, 2012 Ark. 461, 425 S.W.3d 689. And see Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (striking down a statutory requirement that courts must also consider the fault of non-parties).

VII. Limitations on Damages

Money that a plaintiff claims as compensation for a loss is known as “damages.”In a medical malpractice lawsuit, a plaintiff may recover damages including the cost of reasonable and necessary medical services, rehabilitation services, custodial care, and loss of earnings or earning capacity.In addition, a plaintiff may receive damages for pain and suffering and other “non-economic” loss.Ark. Code Ann. § 16-114-208(a).

No Upper Limit on Damages

Unlike some states, Arkansas does not have any ceiling, or upper limit, on the amount of medical malpractice damages. In fact, the Arkansas Constitution expressly states that“no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property.”Ark. Const. art. 5, § 32.Accordingly, the Legislature is constitutionally precluded from capping personal injury damages,with certain exceptions not relevant here.

Notwithstanding this constitutional provision,the Legislature decided in 2003 to cap punitive damages in most cases at $250,000. But the Arkansas Supreme Court stepped in and invalidated the punitive damage cap, pointing to the Arkansas Constitution’s provision outlawing caps on personal injury damages and rejecting the idea that this constitutional provision should be interpreted narrowly. Bayer Crop Science LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822.

Evidence of Damages

The Arkansas Supreme Court has also blocked the Arkansas Legislature from defining the types of evidence a personal injury plaintiff may use to prove damages,explaining that “rules regarding the admissibility of evidence are within our province.”In other words, the high court once again struck down a piece of tort reform legislation on the ground that the legislature had exceeded its constitutional authority and infringed on the constitutional role of the judiciary. Johnson v. Rockwell Automation, Inc.,supra;see also Ark. Code Ann. § 16-55-212(b); 16-114-208(a)(1)(B).

VIII. Limitations on Attorney Fees

Unlike some states, Arkansas does not have a medical malpractice statute that specifically limits attorney fees.

IX. Patient Compensation Funds

While some states have created compensation funds to reimburse particular categories of patients injured by healthcare treatment, Arkansas has not done so.

X. Apologies and Sympathetic Gestures

Unlike some states, Arkansas has not enacted a statute addressing whether a healthcare provider’s apology or expression of sympathy can be used as evidence of the healthcare provider’s liability in a malpractice case.

XI. Communications with Treating Physicians

In Arkansas, defense counsel in a medical malpractice lawsuit generally may not communicate directly with a plaintiff’s treating physicians without the plaintiff’s consent.This means defense counsel may not pose questions to the plaintiff’s treating physicians prior to trial except through the formal methods of discovery available to litigants in a civil action. See Ark. R. Civ. Pro. 35(c)(2); Ark. R. Evid. 503(d)(3)(B); Bulsara v. Watkins, 2012 Ark. 108, 387 S.W.3d 165.

XII. Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

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