Joshua Allen Dachs, Individually; and Joy Danielle Dachs, as Special Personal Representative of the Estate of Elizabeth Anne Dachs, Deceased v. Barry D. Hendrix, M.D., Individually; Family Practice Clinic, Individually; Rebecca Fisher, L.P.N.; Cynthia A. Bartholomew, R.N.; Arkansas Methodist Hospital Corporation d/b/a Arkansas Methodist Hospital, and d/b/a Arkansas Methodist Medical Center; and Continental Casualty Company
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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA08-106
JOSHUA ALLEN DACHS, INDIVIDUALLY;
AND JOY DANIELLE DACHS, AS SPECIAL
PERSONAL REPRESENTATIVE OF THE
ESTATE OF ELIZABETH ANNE DACHS,
DECEASED,
APPELLANTS
V.
BARRY D. HENDRIX, M.D., Individually;
FAMILY PRACTICE CLINIC, Individually;
REBECCA FISHER, L.P.N.; CYNTHIA A.
BARTHOLOMEW, R.N.; ARKANSAS
METHODIST HOSPITAL CORPORATION
D/B/A ARKANSAS METHODIST HOSPITAL,
and D/B/A ARKANSAS METHODIST
MEDICAL CENTER; AND CONTINENTAL
CASUALTY COMPANY,
APPELLEES
Opinion Delivered
S EPTEMBER 24, 2008
APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT,
[NO. CV2006-243(B)],
HONORABLE DAVID BURNETT,
JUDGE,
AFFIRMED
SAM BIRD, Judge
1.
LIMITATION OF ACTIONS – MEDICAL MALPRACTICE – AMENDED COMPLAINT BARRED
BY STATUTE OF LIMITATIONS.– The circuit court was correct to conclude that
appellants’ amended complaint, filed several months after their original complaint,
was barred by the statute of limitations because it was filed more than two years after
the death of their infant daughter; at the time appellants filed their original complaint,
one of the appellants had already been appointed personal representative of the estate;
therefore, neither appellant, individually, had standing to bring the wrongful-death
or survival claims; that one of the appellants was proceeding in her individual
capacity was shown by the fact that there were no allegations that she was the
appointed personal representative of the estate.
2.
LIMITATION OF ACTIONS – MEDICAL MALPRACTICE – WRONGFUL DEATH – INDIVIDUAL
CLAIMS COULD NOT BE ASSERTED – PERSONAL REPRESENTATIVE HAD BEEN
APPOINTED.– Pursuant to Ark. Code Ann. § 16-62-102(f)(2), mental anguish damages
in a wrongful-death case include grief normally associated with the loss of a loved
one; claims for mental anguish cannot be asserted by an individual in a wrongfuldeath case where a personal representative of the deceased’s estate has been
appointed; here, the appellant father failed to assert any individual claims for himself
outside of the wrongful-death statute that the amended complaint could relate back
to; therefore, the circuit court did not err in finding that the amended complaint did
not relate back to the original complaint.
3.
LIMITATION OF ACTIONS – MEDICAL MALPRACTICE – STATUTE OF LIMITATIONS WAS
NOT TOLLED .– Because the statute of limitations was not tolled in this case,
appellants’ claims were barred; more than two years had elapsed between the
appellants’ daughter being stillborn and the amended complaint filed by one of the
appellants as the personal representative of the deceased’s estate.
4.
LIMITATION OF ACTIONS – MEDICAL MALPRACTICE – RELIANCE ON LEGISLATIVE
HISTORY OF MEDICAL MALPRACTICE ACT WAS MISPLACED .– Appellants’ reliance on
the legislative history of the Medical Malpractice Act in support of the their argument
that the death of their infant daughter did not trigger the running of the statute of
limitations was misplaced; as originally enacted, there was a two-year statute of
limitations, but the limitations period for minors was extended until their nineteenth
birthday; subsequent amendments dramatically shortened the length of time a minor
was required to bring an action fro medical injury and broadened the savings
provision for minors to include all medical injuries, not just those arising from
obstetrical care.
5.
LIMITATION OF ACTIONS – MEDICAL MALPRACTICE – MINORITY TOLLING PROVISIONS
DID NOT APPLY – ONLY A PERSONAL REPRESENTATIVE COULD BRING THE WRONGFULDEATH OR SURVIVAL ACTION .– The appellate court was persuaded by cases from other
jurisdictions that the minority tolling provisions of Ark. Code Ann. § 16-114-203 do
not apply where only a personal representative can bring a wrongful-death or survival
medical malpractice case; the circuit court did not err in finding that the tolling
provisions of Ark. Code Ann. § 16-114-203(c) did not apply.
Appeal from Greene Circuit Court; David Burnett, Judge; affirmed.
Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellants.
Friday, Eldredge & Clark, LLP, by: Laura Hensley Smith, for appellees Barry D.
Hendrix, M.D.; Family Practice Clinic; Hendrix Medical Services, PLLC; and Paragould
Physicians Management, LLC.
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Womack, Landis, Phelps & McNeill, by: Paul McNeill and Jeff Scriber, for appellees
Rebecca Fisher, L.P.N.; Cynthia A. Bartholomew, R.N.; Arkansas Methodist Hospital
Corporation; and Continental Casualty Company.
Appellants Joshua Dachs, individually, and Joy Dachs, as special personal representative
of the estate of Elizabeth Dachs, deceased, appeal the Greene County Circuit Court’s order
granting summary judgment in favor of appellees Dr. Barry Hendrix; Family Practice Clinic;
Hendrix Medical Services, PLLC; and Paragould Physicians Management, LLC (collectively,
the physician defendants); Rebecca Fisher, L.P.N.; Cynthia Bartholomew, R.N.; Arkansas
Methodist Hospital Corporation; and Continental Casualty Company (collectively, the
hospital defendants). The Dachses assert that the circuit court erred in finding that the
complaint was barred by limitations and that the complaint was a nullity. We affirm.
According to the complaint as amended, Joy Dachs presented at Arkansas Methodist
Hospital in Paragould, where, after an emergency C-section, the deceased was stillborn on
September 1, 2004. On November 3, 2004, an estate was opened for the deceased, and Joy
Dachs was appointed special personal representative. Letters of administration were issued
that same day.
The original complaint in this case was filed on August 25, 2006, by “Joy Danielle
Dachs and Joshua Allen Dachs.” The complaint was a wrongful-death and survival action
alleging medical negligence on the part of both the physician defendants and the hospital
defendants relating to care provided to Joy Dachs, which proximately caused the death of the
deceased. The complaint did not mention that Joy Dachs had been appointed special personal
representative of the deceased’s estate or that she was acting as such in bringing the action.
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On March 16, 2007, an amended complaint was filed by “Joy Danielle Dachs and
Joshua Allen Dachs, Individually, and by Joy Danielle Dachs as Special Personal
Representative of the Estate of Elizabeth Anne Dachs, Deceased.” The amended complaint
contained an allegation that Joy Dachs had been appointed as special personal representative
of the deceased’s estate.
On March 20, 2007, the hospital defendants filed a motion for summary judgment
alleging that the Dachses lacked standing to bring the claims alleged in the original complaint.
Therefore, the motion continued, the Dachses never properly commenced an action, and
their claims were now time barred by the applicable two-year statute of limitations. The
hospital defendants filed a second motion for summary judgment incorporating their previous
motion to address the Dachses’ amended complaint. The physician defendants filed a motion
for summary judgment which incorporated by reference the motion of the hospital
defendants.
In response, the Dachses made two arguments. They first argued that the deceased’s
estate and Joy Dachs’ capacity as its personal representative were not mentioned in the
original complaint due to a “scrivener’s error.” They also argued that the original complaint
was not a nullity because it included claims for injuries and harm to Joy Dachs and Joshua
Dachs, as individuals, beyond the wrongful death claim. The Dachses argued that, because
their individual claims were timely filed, Arkansas Rules of Civil Procedure 15 and 17
allowed the amended complaint to relate back to the filing of the original complaint. For
their second argument, the Dachses asserted that the tolling provision found in Ark. Code
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Ann. § 16-114-203(c) (Repl. 2006) was amended to remove the death of a minor child as
an event which would remove the disability of minority.
After a hearing, the circuit court ruled from the bench and granted the motions for
summary judgment. However, the court ruled that any claims for injuries suffered by Joy
Dachs individually would remain viable. The court also agreed to certify, pursuant to
Arkansas Rule of Civil Procedure 54(b), the order as final for purposes of appeal. In its
written order, the court found that the Dachses did not have standing to bring the wrongfuldeath claims in the original complaint because, when it was filed, Joy Dachs had already been
appointed personal representative, that the wrongful-death and survival claims of the
amended complaint could not relate back to the original complaint and were barred by the
statute of limitations, and that the section 16-114-203(c) tolling provision did not apply.
This appeal followed.
In this summary-judgment matter, there is no dispute as to any material fact. In cases
where the parties agree on the facts, appellate courts simply determine whether the appellee
was entitled to judgment as a matter of law. Swaim v. Stephens Prod. Co., 359 Ark. 190, 196
S.W.3d 5 (2004); Delt v. Bowers, 97 Ark. App. 323, 249 S.W.3d 162 (2007).
The Dachses first argue that the original complaint filed August 25, 2006, was not a
nullity and that the amended complaint filed March 22, 2007, properly related back to the
filing of the original complaint. We disagree. There are two causes of action that arise when
a person’s death is caused by the negligence of another: (1) a cause of action for the estate
under the survival statute, Ark. Code Ann. § 16-62-101, and (2) a cause of action for the
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statutory beneficiaries under the wrongful-death statute, Ark. Code Ann. § 16-62-102. Miller
v. Centerpoint Energy Res. Corp., 98 Ark. App. 102, 250 S.W.3d 574 (2007). Under Arkansas
Code Annotated section 16-62-101 (Repl. 2005), only the personal representative can file
a survival action. Furthermore, pursuant to Arkansas Code Annotated section 16-62-102(b)
(Repl. 2005), every wrongful-death action “shall be brought by and in the name of the
personal representative of the deceased person. If there is no personal representative, then the
action shall be brought by the heirs at law of the deceased person.” Ark. Code Ann. § 16-62102(b). “An action for wrongful death brought by a plaintiff in his capacity as an
administrator pursuant to Ark. Code Ann. § 16-62-102 involves neither the same action, nor
the same plaintiff as in a survival action brought by the same person in his individual capacity
pursuant to Ark. Code Ann. § 16-62-101.” St. Paul Mercury Ins. Co. v. Circuit Court of
Craighead County, 348 Ark. 197, 205, 73 S.W.3d 584, 589 (2002). A survival claim is simply
a claim by the injured party that would have ended upon his death at common law. The
legislature enacted a survival statute allowing those claims to survive the injured party’s death.
See Myers v. McAdams, 366 Ark. 435, 236 S.W.3d 504 (2006).
[1] The question becomes whether the Dachses filed a proper complaint within the
two-year limitations period. The Dachses filed their original complaint on August 25, 2006.
At that time, Joy had already been appointed personal representative of the estate. Therefore,
neither Joshua nor Joy Dachs, individually, had standing to bring the wrongful-death or
survival claims. That Joy Dachs was proceeding in her individual capacity is shown by the
fact that there are no allegations that she was the appointed personal representative of the
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estate. See Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004). Therefore, the circuit court
was correct to conclude that the amended complaint, filed March 22, 2007, was barred by
the statute of limitations because it was filed more than two years after the death of Elizabeth
Dachs.
The Dachses argue that because they asserted individual claims outside the scope of
the wrongful-death claim, the amended complaint could relate back to the filing of the
original complaint. Joy Dachs’ individual claims were not resolved by the summary judgment
and are not before this court. However, Joshua Dachs’ individual claims are before us. Joshua
Dachs asserts that “[b]oth parents suffered the horror of a still-born birth and the resultant
emotional trauma. These damages are outside of the wrongful-death act and sustainable by
the parents in their own right.” We do not agree that the damages alleged by Joshua Dachs
are outside of the wrongful-death act and, therefore, sustainable by him individually.
[2] Pursuant to Arkansas Code Annotated section 16-62-102(f)(2) (Repl. 2005),
mental anguish damages in a wrongful-death case include grief normally associated with the
loss of a loved one. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).
Claims for mental anguish cannot be asserted by an individual in a wrongful-death case
where a personal representative of the deceased’s estate has been appointed. See Dawson v.
Gerritsen, 295 Ark. 206, 748 S.W.2d 33 (1988). Joshua Dachs has thus failed to assert any
individual claims for himself outside of the wrongful-death statute that the amended
complaint could relate back to. Therefore, the circuit court did not err in finding that the
amended complaint did not relate back to the original complaint.
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[3] For their second argument, the Dachses contend that the statute of limitations on
the wrongful-death and survival claims has not run. It is undisputed that more than two years
elapsed between Elizabeth Dachs’ being stillborn on September 1, 2004, and the amended
complaint being filed by Joy Dachs as the personal representative of the deceased’s estate on
March 22, 2007. Therefore, unless the running of the statute was somehow tolled, it is clear
from the above discussion that the claims are barred.
The Dachses rely on the legislative history of the Medical Malpractice Act, codified
at Ark. Code Ann. §§ 16-114-201 to 16-114-209 (Repl. 2006), to argue that the death of
their infant daughter did not trigger the running of the statute of limitations. The statute of
limitations provision is now codified at Ark. Code Ann. § 16-114-203. As originally enacted,
there was a two-year statute of limitations, but the limitations period for minors was
extended until their nineteenth birthday.
In 1991, section 16-114-203 was completely rewritten by Act 997. That act continued
the two-year limitations period and addressed injuries to minors in the following subsections
of section 16-114-203:
(c) Except as otherwise provided in the subsection (d) of this section, if at the
time at which the cause of action for medical injuries occurring from obstetrical care shall
or with reasonable diligence might have first been known or discovered, the person
to whom such claim has accrued shall be nine (9) years of age or younger, then such
minor or the person claiming through such minor may notwithstanding that the
period of time limited pursuant to subsection (a) of this section shall have expired,
commence action on such claim at any time within two (2) years next after the time
at which the minor shall have reached his ninth birthday, or shall have died, whichever
shall have first occurred.
(d) If, at the time at which the cause of action for medical injuries occurring
from obstetrical care shall or with reasonable diligence might have been first known or
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discovered, the person to whom such claim has accrued shall be a minor without a
parent or legal guardian, then such minor or the person claiming through such minor
may, notwithstanding that the period of time limited pursuant to subsection (a) of this
section shall have expired, commence action on such claim at any time within two
(2) years next after the time at which the minor shall have a parent or legal guardian
or shall have died, whichever shall have first occurred; provided, however, that in no
event shall the period of limitations begin to run prior to such minor’s ninth birthday
unless such minor shall have died.
1991 Ark. Acts 997, § 1 (emphasis added).
In 1995, section 16-114-203 was again rewritten by Act 735. The act addressed claims
by minors as follows:
(c) If an individual is nine (9) years of age or younger at the time of the act,
omission, or failure complained of, the minor or person claiming on behalf of the
minor shall have until the later of the minor’s eleventh birthday or two (2) years from
the act, omission, or failure in which to commence an action. However, if no medical
injury is known and could not reasonably have been discovered prior to the minor’s
eleventh birthday, then the minor or his representative shall have until two (2) years
after the medical injury is known or reasonably could have been discovered, or until
the minor’s nineteenth birthday, whichever is earlier, in which to commence an
action.
1995 Ark. Acts 735, § 1.
The Dachses highlight the “shall have died” language in the 1991 amendment and the
omission of such language in the current version of the statute. The Dachses assert that,
because of that change in the language, the general assembly intended to eliminate the death
of a child under nine as ending the tolling of the statute of limitations. In other words, they
contend that the limitations period does not expire until the date on which Elizabeth Dachs
would have turned eleven years of age.
[4] The Dachses misinterpret the legislative history of these acts. As can be seen, both
the 1991 and 1995 amendments dramatically shortened the length of time a minor has to
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bring an action for medical injury from the length of time allowed by the 1979 Act. Those
amendments also provide that minors over the age of nine are to be treated as adults in terms
of only having two years in which to bring their claim for medical injuries, while minors
under the age of nine years shall have until the later of their eleventh birthday or two years
from the event giving rise to the cause of action to bring suit. The 1991 amendment created
a narrow, specific exception for minors with claims for medical injuries occurring from
obstetrical care. The 1995 amendment broadened the savings provision for minors to include
all medical injuries, not just those arising from obstetrical care. See Raley v. Wagner, 346 Ark.
234, 57 S.W.3d 683 (2001); Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000). In other
words, instead of removing the death of the minor as an event triggering the statute of
limitations, the 1995 amendment indicates a legislative intent to allow all minors under the
age of nine years to have until their eleventh birthday to file suit for medical injuries, not just
those who suffered injuries from obstetrical care.
Furthermore, we are persuaded by cases from other jurisdictions that the minority
tolling provisions of Ark. Code Ann. § 16-114-203 do not apply where only a personal
representative can bring a wrongful-death or survival medical malpractice case. Runstrom v.
Allen, 345 Mont. 314, ___ P.3d ___ (2008); see also Anderson v. R & D Foods, Inc., 913 So.
2d 394 (Miss. Ct. App. 2005); Walberg v. St. Francis Home, Inc., 697 N.W.2d 36 (Wis. 2005).
[5] Runstrom is particularly instructive. Montana has a general, three-year statute of
limitations for tort actions, as well as a three-year statute of limitations for medical
malpractice actions. Mont. Code Ann. §§ 27-2-204, 27-2-205 (2007). Montana’s statute of
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limitations for medical malpractice actions has a tolling provision for injuries to minors:
[N]otwithstanding the provisions of [the general tolling statute], in an action for death
or injury of a minor who was under the age of 4 on the date of the minor’s injury, the
period of limitations [for medical- malpractice actions] begins to run when the minor
reaches the minor’s eighth birthday or dies, whichever occurs first, and the time for
commencement of the action is tolled during any period during which the minor
does not reside with a parent or guardian.
Mont. Code Ann. § 27-2-205(2). The appellant in Runstrom argued that the “or dies”
language in section 27-2-205(2) and the omission of such language in the general tolling
statute demonstrated a legislative intent for the death of the minor patient to end “eighth
birthday” tolling in survival medical malpractice actions involving children injured before age
four, but not to end minority tolling before a child’s eighteenth birthday in survival medical
malpractice cases involving minors injured at age four or older. This was important because
the child in that case was sixteen years of age. The Montana court rejected the argument,
holding that the tolling provisions do not apply where only a personal representative can
bring the action. We find this reasoning sound because, like Montana, Arkansas law requires
the appointed personal representative to bring the wrongful-death or survival actions.
For the reasons set forth above, we hold that the circuit court did not err in finding
that the tolling provisions of section 16-114-203(c) did not apply.
Affirmed.
GLADWIN and ROBBINS, JJ., agree.
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