Hertlein v. St. Paul Fire & Marine Ins. Co.
Annotate this Case
Brenda HERTLEIN, Administratrix of the Estate
of Edward Hertlein v. ST. PAUL FIRE AND
MARINE INSURANCE COMPANY and Philip Tippin,
M.D.
95-407 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered February 5, 1996
1. Appeal & error -- summary judgment -- standard of review. --
Where the operative facts of a case are undisputed, the
supreme court simply determines on appeal whether the appellee
was entitled to summary judgment as a matter of law.
2. Physicians & surgeons -- Medical Malpractice Act -- applicable
to case of wrongful death resulting from medical malpractice.
-- Where the present case was undisputedly one for wrongful
death resulting from medical malpractice, the Medical
Malpractice Act applied; under Ark. Code Ann. 16-114-202
(1987), the Medical Malpractice Act expressly "applies to all
causes of action for medical injury accruing after April 2,
1979, and, as to such causes of action, shall supersede any
inconsistent provision of law."
3. Limitation of actions -- Medical Malpractice Act's statute of
limitations superseded Wrongful Death Act's statute of
limitations -- trial court did not err in granting summary
judgment. -- Where the limitations period provided under the
Medical Malpractice Act conflicted with the limitations period
provided under the Wrongful Death Act, the Wrongful Death
Act's statute of limitations, as an inconsistent provision of
law, was superseded by the Medical Malpractice Act's statute
of limitations under Ark. Code Ann. 16-114-202; thus, the
trial court did not err, as a matter of law, in granting
appellees' motion for summary judgment where it was undisputed
that appellant's action was commenced after the expiration of
the medical-malpractice two-year statute of limitations.
Appeal from Logan Circuit Court, Northern District; Charles H.
Eddy, Judge; affirmed.
Dunham & Ramey, P.A., by: James Dunham, for appellant.
Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: J. Michael
Cogbill, for appellees.
Donald L. Corbin, Justice. Associate Justice Donald L.
Corbin, 2-5-96 *ADVREP6*
BRENDA HERTLEIN, Administratrix
of the Estate of EDWARD
HERTLEIN,
APPELLANT,
V.
ST. PAUL FIRE AND MARINE
INSURANCE COMPANY and PHILIP
TIPPIN, M.D.,
APPELLEES,
95-407
APPEAL FROM THE LOGAN COUNTY
CIRCUIT COURT, NORTHERN
DISTRICT,
NO. CIV 94-15 (I),
HON. CHARLES H. EDDY, JUDGE,
AFFIRMED.
Appellant, Brenda Hertlein, as administratrix of the estate of
Edward Hertlein, deceased, appeals the order of the Logan County
Circuit Court granting summary judgment for appellee, Philip
Tippin, M.D., on the ground that the statute of limitations expired
prior to the commencement of this action for damages caused by
medical injury to appellant's decedent. In its order, the circuit
court also granted summary judgment for St. Paul Fire and Marine
Insurance Company, however, appellant raises no argument as to that
part of the circuit court's order. Jurisdiction is properly in
this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3) and (16).
Appellant's sole point for reversal is that the trial court applied
the wrong statute of limitations. We affirm the trial court's
judgment.
Where the operative facts of the case are undisputed, as here,
we simply determine on appeal whether the appellee was entitled to
summary judgment as a matter of law. National Park Medical Center,
Inc. v. Arkansas Dep't Human Servs., 322 Ark. 595, ___ S.W.2d ___
(1995).
This action was commenced by complaint filed in May 1994. The
gravamen of the complaint against appellee is that he acted
negligently in his medical treatment of the decedent, which was
rendered on February 2, 1992, and that his negligence resulted in
the decedent's death on February 3, 1992. Appellant and her child
are alleged to be the decedent's surviving spouse and child. The
complaint prayed for damages for the pecuniary injury and extreme
mental anguish of appellant and her child, for appellant's loss of
consortium, for the decedent's medical bills as a result of the
alleged negligence, and for the decedent's funeral expenses.
The issue, as framed by appellant, is whether the limitations
period for a cause of action for wrongful death caused by a medical
injury is three years from the decedent's date of death, as
provided by the Wrongful Death Act, Ark. Code Ann. 16-62-102(c)
(1987), or two years from the date of the wrongful act complained
of, as provided by the Medical Malpractice Act, Ark. Code Ann.
16-114-203(a) and (b) (Supp. 1995). It is undisputed that this
action was commenced after the medical-malpractice two-year statute
of limitations expired on February 2, 1994, but prior to the
expiration of the wrongful-death three-year statute of limitations
on February 3, 1995. Relying upon Ruffins v. ER Arkansas, P.A.,
313 Ark. 175, 853 S.W.2d 877 (1993), the trial court ruled that the
Medical Malpractice Act controlled and the action was not timely
filed. The trial court's order was entered on December 27, 1994,
and this appeal arises therefrom.
Appellant relies in error upon Matthews v. Travelers Indem.
Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), and its progeny, for
the proposition that the Wrongful Death Act governs the statute-of-
limitations issue. In Ruffins, we affirmed the trial court's
dismissal of that wrongful-death case due to Ruffins's failure to
give the "notice of intent to sue" that was then required by the
Medical Malpractice Act, and we held:
In sum, we have expressly reserved ruling on whether
wrongful death resulting from medical malpractice is
governed by the Medical Malpractice Act, and this is the
first time we are squarely faced with the issue. The
Medical Malpractice Act provides that it applies to "all
causes of action for medical injury." (Emphasis added.)
The language is clear, and we are constrained to follow
it. Accordingly, we hold that, under the then existing
law, notice had to be given in compliance with the
Medical Malpractice Act.
Id. at 180, 853 S.W.2d at 880.
The present case is undisputedly one for wrongful death
resulting from medical malpractice. Consequently, the Medical
Malpractice Act applies. Id. The Medical Malpractice Act
expressly "applies to all causes of action for medical injury
accruing after April 2, 1979, and, as to such causes of action,
shall supersede any inconsistent provision of law." Ark. Code Ann.
16-114-202 (1987) (emphasis added). In the present case, the
limitations period provided under the Medical Malpractice Act
conflicts with the limitations period provided under the Wrongful
Death Act. Pursuant to the Medical Malpractice Act, the Wrongful
Death Act's statute of limitations, as an inconsistent provision of
law, is superseded by the Medical Malpractice Act's statute of
limitations. Section 16-114-202. Thus, the trial court did not
err, as a matter of law, in granting the motion for summary
judgment.
Affirmed.
GLAZE, BROWN, and ROAF, JJ., dissent. Associate Justice Robert L. Brown
February 5, 1996 *ADVREP6-A*
BRENDA HERTLEIN, ADMINISTRATRIX
OF THE ESTATE OF EDWARD
HERTLEIN,
APPELLANT,
V.
ST. PAUL FIRE AND MARINE
INSURANCE COMPANY AND PHILLIP
TIPPIN, M.D.,
APPELLEES,
95-407
APPEAL FROM THE LOGAN COUNTY
CIRCUIT COURT,
NO. CIV 94-15 (I),
HON. CHARLES H. EDDY, JUDGE,
DISSENTING OPINION.
The majority opinion, in essence, does away with the cause of
action for wrongful death in connection with medical injuries when
the Medical Malpractice Act and the Wrongful Death Act conflict.
In doing so, it construes a general repealer clause in the Medical
Malpractice Act as repealing the Wrongful Death Act for such
injuries. General repealer clauses are not favored unless there is
plain conflict between the two statutes. See Winston v. Robinson,
270 Ark. 996, 606 S.W.2d 757 (1980); 1A Norman J. Singer,
Sutherland Statutory Construction 23.08, p. 334-335 (5th ed.
1993). The majority decision errs in deviating from this principle
and in construing a repeal of the wrongful death cause of action
under these circumstances without more explicit direction from the
General Assembly.
Contrary to the majority's conclusion, the case of Ruffins v.
ER Arkansas P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), did not hold
that the Wrongful Death Act, codified at Ark. Code Ann. 16-62-102
(Supp. 1995), had been superseded in cases dealing with medical
injuries. In Ruffins, we held that the notice provision of the
Medical Malpractice Act had to be followed even in wrongful death
actions. We noted that because of Weidrich v. Arnold, 310 Ark.
138, 835 S.W.2d 843 (1992), which eliminated the notice requirement
as a condition for commencing medical malpractice actions, the
Ruffins holding "has very little significance as a precedent."
Ruffins, 313 Ark. at 177, 853 S.W.2d at 878. We expressly did not
decide which statute of limitations applied between the Medical
Malpractice Act (two years) and wrongful death actions (three
years). Indeed, we stated:
The issue here, regardless of which statute of
limitations controls, is whether the then required notice
provision of the Medical Malpractice Act ... is
applicable. (Emphasis supplied.)
Ruffins, 313 Ark. at 178, 853 S.W.2d at 879. We clearly left the
issue of limitations open. The Ruffins case simply cannot support
the far-reaching holding of the instant case.
By striking down wrongful death actions for medical injuries
on limitations grounds, the majority decision, without saying so,
overrules two cases of this court -- Matthews v. Travelers
Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968) and Brown
v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987),
overruled in part by Bailey v. Rose Care Ctr., 307 Ark. 14, 817 S.W.2d 412 (1992) (injury was not a medical injury). The Matthews
case was decided before the enactment of the Medical Malpractice
Act in 1979, but a two-year limitations period for medical
malpractice was on the books. The Brown case was decided after the
enactment of the 1979 Medical Malpractice Act. Both cases held
that the 3-year statute of limitations under the Wrongful Death Act
applied to deaths caused by medical injury. In fact, in Matthews,
this court espoused the principle that when two statutes of
limitations applied, public policy supported the longer statute.
Whereas, the Ruffin decision left the Matthews and Brown decisions
intact, today's opinion casts them into oblivion without so much as
a word. There should at least be an explanation as to why these
cases have been put to rest.
Because of today's opinion, the survivor of a person who dies
two years after suffering a medical injury has no cause of action
for wrongful death. Wrongful death actions have existed in this
state since 1883. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994) (citing Act 53 of 1883). Had the General Assembly
desired to repeal the wrongful death cause of action for medical
injuries in any respect, it could easily have done so in 1979 by a
specific repealer in the Medical Malpractice Act. It did not. Nor
did it do so after our decision in Brown v. St. Paul Mercury Ins.
Co., supra, where we expressly affirmed use of the statute of
limitations under the Wrongful Death Act for a medical injury.
Now, almost 20 years after the enactment of the Medical Malpractice
Act, we hold that a repeal was contemplated. I cannot make that
interpretative leap.
I respectfully dissent.
Glaze and Roaf, JJ., join.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
