Kimberly Branham v. Kerry Ozment, M.D.

Annotate this Case
ca03-925

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

KIMBERLY BRANHAM

APPELLANT

V.

KERRY OZMENT, M.D.

APPELLEE

CA03-925

April 7, 2004

APPEAL FROM THE PRAIRIE COUNTY CIRCUIT COURT

[NO. CV 02-43]

HON. WILLIAM PICKENS MILLS,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

In a complaint filed on November 18, 2002, appellant, Kimberly Branham, brought a medical-malpractice claim against appellee, Kerry Ozment, M.D. In support of her claim, appellant asserted that appellee failed to provide her with or advise her on post-operative care following her April 11, 1991, gastric-bypass surgery. After finding that the two-year statute of limitations on medical-malpractice claims had run, the circuit court granted summary judgment. See Ark. Code Ann. ยง 16-114-203(a) (Supp. 2003). Appellant contends that the court erred in granting summary judgment, arguing that the two-year period only began to run at the time of the development and manifestation of her injuries resulting from the alleged negligence. We affirm.

In her brief, appellant admits that if the time period began running at the time of appellee's last treatment of appellant, that is, the date of the surgery, then her claim is barred by the statute of limitations. She, however, contends that the period did not begin to run until she "developed damages." We note that this court recently decided this issue adversely to appellant in a case involving appellee as the defendant, with the plaintiff in that case being

represented by appellant's counsel. As we held in Harris v. Ozment, 83 Ark. App. ___, 117 S.W.3d 647 (2003), the two-year statute of limitations for medical malpractice claims begins to run from the date the alleged negligent act occurred. Here, as in Harris, the alleged negligent act of failing to advise appellant on post-operative care occurred on the date of the surgery. Also, her allegation that appellee was negligent in failing to provide adequate post-operative care began on that same date, as appellant was not later treated by appellee. Thus, as in Harris, summary judgment was proper, as the two-year period from the date of the surgery had elapsed well before she filed her claim.

Appellant further argues that "if individuals are barred from bringing actions of this sort, it must raise a serious constitutional question pursuant to Article 2, Section 13 of the Arkansas Constitution." This argument, however, was not raised before or addressed by the circuit court, and it is well settled that to preserve an argument for appeal, even a constitutional argument, the appellant must first obtain a ruling from the circuit court. See e.g., Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002). Thus, the argument was not preserved for appellate review.

Affirmed.

Bird and Griffen, JJ., agree.