Haase v. Starnes
Annotate this Case
Roger HAASE v. C. Wayne STARNES, M.D.
95-892 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered February 5, 1996
1. Appeal & error -- summary judgment -- standard of review. --
On appellate review of a case in which the facts are not in
dispute and summary judgment is granted, the appellate court
simply determines whether appellee was entitled to judgment as
a matter of law.
2. Negligence -- medical malpractice -- when expert testimony is
required. -- The trial court erred in granting summary
judgment to appellee because, contrary to its ruling, expert
testimony is not necessary per se in every medical malpractice
case; it is well-settled that expert testimony is required
only when the asserted negligence does not lie within the
jury's comprehension as a matter of common knowledge, when the
applicable standard of care is not a matter of common
knowledge, and when the jury must have the assistance of
experts to decide the issue of negligence.
3. Statutes -- construction of -- Ark. Code Ann. 16-114-206
(1987) does not apply to actions for medical injury based on
breach of express warranty where issue is whether medical-care
provider guaranteed results. -- The trial court erred in
granting summary judgment to appellee because, contrary to its
ruling, Ark. Code Ann. 16-114-206 (1987) does not apply to
actions for medical injury based on breach of express warranty
where the issue is whether the medical-care provider
guaranteed the results; so to apply section 16-114-206 would
defy common sense and produce absurd results, and the supreme
court does not interpret statutes in that manner.
4. Statutes -- statutory burden-of-proof requirements in medical-
malpractice action have no relevance in contract-based action
arising out of guarantee of specific, favorable results. --
The supreme court held that the burden-of-proof requirements
of Ark. Code Ann. 16-114-206(a) typify three requirements of
a cause of action sounding in tort -- duty, breach, and cause
-- and have no relevance in a contract-based cause of action
arising out of a guarantee of specific, favorable results; the
standard of care used by medical-care providers in similar
communities and situations simply has no relevance in a case
where the sole issue is whether a medical-care provider
breached a particular express warranty.
5. Appeal & error -- part of order granting summary judgment to
appellee on breach-of-warranty claim reversed and remanded. --
Analyzing appellant's contract action under the principles of
contract rather than negligence law, the supreme court
reversed and remanded that part of the trial court's order
granting summary judgment to appellee on appellant's breach-
of-warranty claim due to appellant's failure to satisfy the
burden-of-proof requirements set forth in Ark. Code Ann. 16-
114-206 for an action for medical injury.
6. Physicians & surgeons -- physician may make express contract
with patient. -- A physician may make an express contract with
a patient whereby the physician makes a special agreement with
the patient or promises to cure the patient.
7. Appeal & error -- trial court erred in granting summary
judgment where appellant pleaded and offered proof of express
warranty made by appellee. -- Where appellant pleaded and
offered some proof of an express warranty made by appellee,
and appellant alleged by complaint that he relied on
appellee's advertisements in receiving treatment, the supreme
court could not affirm the trial court's granting of summary
judgment on the basis that appellant failed to plead or prove
that a contract or express warranty existed.
8. Appeal & error -- failure to obtain ruling -- issue waived on
appeal. -- Where appellant failed to obtain a ruling on his
contention that a medical-care provider waives the protection
afforded by the Arkansas Medical Malpractice Act when the
medical-care provider makes an express warranty with respect
to the success or results of a particular treatment, the issue
was waived on appeal, and the supreme court did not address
the merits of the point.
9. Constitutional law -- only necessary constitutional issues
decided. -- It is well-settled that no constitutional issues
are decided except those that are necessary to a decision in
the specific case at hand.
10. Constitutional law -- contract clause -- not to be construed
literally but to allow state to exercise police powers -- no
violation of contract clause. -- It is well-settled that the
"contract clause" of the United States Constitution, art. 1,
10, cl. 1, is not to be construed literally but is construed
to allow a state to exercise its police powers; however, the
contract clause imposes some limits upon the power of a state
to abridge existing contractual relationships, even in the
exercise of its otherwise legitimate police power; where the
operative facts of the present case occurred well after the
passage of the Arkansas Medical Malpractice Act in 1979, and
no contract between appellant and appellee then existed, the
supreme court could not say that Ark. Code Ann. 16-114-206
violated the contract clause in the case.
11. Appeal & error -- failure to present convincing argument --
issue not addressed. -- Where appellant argued that the
Arkansas Medical Malpractice Act violated the equal-protection
clauses of the United States and Arkansas Constitutions but
did not make any convincing argument for his contention, and
it was not apparent to the supreme court without further
research that the argument was well-founded, the issue was not
addressed.
12. Constitutional law -- constitutional preference for general
rather than special laws -- directory or cautionary as applied
to General Assembly. -- Under Ark. Const. art. 5, 25, the
General Assembly is prohibited from enacting a special law
where a general law can be made applicable; it is well-settled
that the clause in question is not mandatory but is directory
or merely cautionary as applied to the General Assembly;
compliance is left to the discretion of the General Assembly.
13. Statutes -- no conflict between Ark. Code Ann. 16-114-206(a)
and Ark. R. Evid. 702. -- Where appellant maintained that Ark.
Code Ann. 16-114-206(a) was in direct conflict with Ark. R.
Evid. 702, the supreme court concluded that there was no
conflict and that the argument was based on a false premise
regarding mandatory or permissive presentation of expert
testimony.
14. Appeal & error -- summary judgment -- order modified to
reflect that summary judgment was granted with prejudice. --
The supreme court held that the questions whether a complaint
states a cause of action and whether a plaintiff has failed to
offer sufficient proof of a cause of action to survive a
defendant's motion for summary judgment are questions of law
with respect to which trial courts have no discretion; where
the trial court's order specifically stated that it granted
appellee's motion for summary judgment because appellant had
not proven his case, the summary judgment should have been
granted with prejudice, and the supreme court modified the
judgment so to reflect.
Appeal from Pulaski Circuit Court, Fifth Division; Morris W.
Thompson, Judge; affirmed in part and reversed and remanded in part
on direct appeal; affirmed as modified on cross-appeal.
Hartsfield, Almand & Grisham, by: Larry J. Hartsfield, for
appellant/cross-appellee.
The Trammell Law Firm, by: Thomas F. Meeks and Robert
Trammell, for appellee/cross-appellant.
Donald L. Corbin, Justice.
Associate Justice Donald L.
Corbin, 2-5-96 *ADVREP5*
ROGER HAASE,
APPELLANT/
CROSS-APPELLEE,
V.
C. WAYNE STARNES, M.D.,
APPELLEE/
CROSS-APPELLANT
95-892
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, FIFTH DIVISION,
NO. 94-4258,
HON. MORRIS W. THOMPSON, JUDGE,
AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART ON DIRECT
APPEAL; AFFIRMED AS MODIFIED ON
CROSS-APPEAL.
Appellant, Roger Haase, appeals an order of the Pulaski County
Circuit Court granting summary judgment to appellee, C. Wayne
Starnes, M.D., and dismissing without prejudice appellant's
complaint for negligence and breach of express warranty.
Thereafter, appellant filed a motion for reconsideration, which
included a request for rulings on the constitutional challenges he
made to the Arkansas Medical Malpractice Act, Ark. Code Ann. 16-
114-201 to -209 (1987 and Supp. 1995). Appellee filed a motion to
correct the judgment to reflect that the dismissal of the complaint
was with prejudice. The trial court entered an order denying both
motions. From that order, appellant also appeals and appellee
cross-appeals. This case was certified to this court as one
involving a question about the law of torts. Ark. Sup. Ct. R. 1-
2(a)(16). We find error in the part of the order granting summary
judgment of the claim for expressed warranty and therefore affirm
in part and reverse and remand in part. On cross-appeal, we modify
the judgment to reflect that the dismissal of the complaint as to
the claim for negligence was with prejudice.
Appellant filed a complaint against appellee alleging
negligence and breach of express warranty arising from appellee's
treatment of appellant for a series of hair transplants. Appellant
alleged that appellee placed advertisements stating "We guarantee
you a full, growing head of hair for the rest of your life," and
"Transplants guaranteed to grow for the rest of your life."
Appellant asserted that he relied on such advertisements when he
agreed to undergo a year-long series of hair transplants, grafts,
and scalp reductions performed by appellee. Appellant further
alleged that he suffered a severe infection during the course of
appellee's treatment that resulted in a scar which is incapable of
sustaining hair transplants.
Eventually, appellant stipulated that he would not offer
expert testimony to show appellee failed to maintain the applicable
standard of care. Thereafter, appellee moved for summary judgment,
arguing that he was entitled to judgment as a matter of law due to
the absence of expert testimony. Appellant responded to the
motion, arguing that expert testimony was not necessary on the
facts of this case and that proof of the applicable standard of
care and breach thereof is not necessary to a claim predicated on
breach of express warranty.
The trial court granted appellee's motion for summary
judgment, ruling that, regardless of whether the "medical injury"
resulted from negligence or breach of warranty, as long as it
resulted from professional services rendered by a medical-care
provider, the proof was governed by the Arkansas Medical
Malpractice Act, and specifically section 16-114-206. Appellant
asserts six arguments for reversal of that order.
I. BREACH OF EXPRESS WARRANTY -- BURDEN OF PROOF
The facts are not in dispute. As the trial court stated in
its order, the question before it was one of law. On appellate
review of such a case, we simply determine whether appellee was
entitled to judgment as a matter of law. National Park Medical
Center, Inc. v. Arkansas Dep't of Human Servs., 322 Ark. 595, ___
S.W.2d ___ (1995).
As his first point for reversal, appellant argues that expert
testimony is not necessary to establish a cause of action based on
breach of express warranty where the breach can be proven from
evidence that is within a jury's common knowledge. Appellant
acknowledges that he seeks recovery for a "medical injury" as
defined by section 16-114-201(3), and that his burden of proof is
therefore governed by section 16-114-206. He argues, however, that
when section 16-114-206 is applied to his breach-of-warranty claim,
he is placed in the ridiculous posture of being required to offer
proof that appellee was negligent in order to prove that appellee
breached an express warranty. In summary, appellant's first point
has two components: one, he should not be required to prove
negligence in this case in order to sustain a cause of action for
breach of express warranty; two, expert testimony is not required
in his case for breach of express warranty because the contract
issue is within the common knowledge of lay persons.
Appellee responds that expert testimony is required regardless
of whether a medical-malpractice plaintiff's claim is for
negligence or breach of warranty, essentially because the general
public is not knowledgeable regarding techniques and procedures for
hair-transplant surgery. Appellee responds further that regardless
of appellant's argument on this point, he is entitled to summary
judgment because appellant did not plead nor offer proof of an
express warranty made by him to appellant.
The trial court ruled that, if the injury complained of is a
"medical injury," expert testimony is necessary to establish the
standard of care and breach thereof and that proof is governed by
section 16-114-206 regardless of whether the claim is for
negligence or breach of warranty. Because appellant stipulated he
would not offer expert testimony on the standard of care and breach
thereof, the trial court ruled appellee was entitled to judgment as
a matter of law.
The trial court's ruling was in error for two reasons. First,
expert testimony is not necessary per se in every medical
malpractice case. Our law is well-settled that expert testimony is
required only when the asserted negligence does not lie within the
jury's comprehension as a matter of common knowledge, when the
applicable standard of care is not a matter of common knowledge,
and when the jury must have the assistance of experts to decide the
issue of negligence. Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995) (citing Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987)). To emphasize that expert testimony is not
required in every medical-malpractice case per se, we repeat a
statement from Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970),
that was quoted in Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712
(1972):
The necessity for the introduction of expert
medical testimony in malpractice cases was
exhaustively considered in Lanier v. Trammell,
207 Ark. 372, 180 S.W.2d 818 (1944). There we
held that expert testimony is not required
when the asserted negligence lies within the
comprehension of a jury of laymen, such as a
surgeon's failure to sterilize his instruments
or to remove a sponge from the incision before
closing it. On the other hand, when the
applicable standard of care is not a matter of
common knowledge the jury must have the
assistance of expert witnesses in coming to a
conclusion upon the issue of negligence.
Id. at 926, 481 S.W.2d 712-13. This court has consistently applied
this rule of law from the landmark case of Lanier to cases arising
under the Arkansas Medical Malpractice Act. See, e.g., Robson, 322
Ark. 605, 911 S.W.2d 246.
The second reason the trial court's order was erroneous is
because section 16-114-206 does not apply to actions for medical
injury based on breach of express warranty when the issue is
whether the medical-care provider guaranteed the results. To so
apply section 16-114-206 would defy common sense and produce absurd
results, and this court does not interpret statutes in that manner.
Rosario v. State, 319 Ark. 764, 894 S.W.2d 888 (1995). There is no
doubt that, as appellant concedes, his claim for breach of warranty
is included in section 16-114-201's definitions of "action for
medical injury" and "medical injury":
(1) "Action for medical injury" means any action
against a medical care provider, whether based in tort,
contract, or otherwise, to recover damages on account of
medical injury;
. . . .
(3) "Medical injury" or "injury" means any adverse
consequences arising out of or sustained in the course of
the professional services being rendered by a medical
care provider, whether resulting from negligence, error,
or omission in the performance of such services; or from
rendition of such services without informed consent or in
breach of warranty or in violation of contract; or from
failure to diagnose; or from premature abandonment of a
patient or of a course of treatment; or from failure to
properly maintain equipment or appliances necessary to
the rendition of such services; or otherwise arising out
of or sustained in the course of such services.
[Emphasis added.]
And it is true that section 16-114-206(a) purports to establish the
burden of proof in any action for medical injury:
(a) In any action for medical injury, the plaintiff
shall have the burden of proving:
(1) The degree of skill and learning ordinarily
possessed and used by members of the profession of the
medical care provider in good standing, engaged in the
same type of practice or specialty in the locality in
which he practices or in a similar locality;
(2) That the medical care provider failed to act in
accordance with that standard; and
(3) That as a proximate result thereof, the injured
person suffered injuries which would not otherwise have
occurred.
However, the three requirements of section 16-114-206(a),
namely the "degree of skill and learning ordinarily possessed and
used by members of the profession," failure to "act in accordance
with that standard," and "proximate result," typify three
requirements of a cause of action sounding in tort: duty, breach,
and cause. These three requirements have no relevance in a
contract-based cause of action arising out of a guarantee of
specific, favorable results. The standard of care used by medical-
care providers in similar communities and situations simply has no
relevance in a case where the sole issue is whether a medical-care
provider breached this particular express warranty. Plainly, the
trial court's construction of sections 16-114-201 and -206 achieves
an absurd result that was not intended by the General Assembly. It
would defy common sense to conclude that the General Assembly, by
recognizing claims for breach of warranty and contract in its
definition of "medical injury," intended to establish a burden of
proof consisting solely of tort-based elements in a warranty case
based on a guarantee.
When stating the rule of law as to a physician's duty to his
patient, courts have said that in the absence of a special contract
or express warranty, the physician does not warrant the success of
his treatment but only that he or she will follow the applicable
standard of care. See generally Jack W. Shaw, Jr., Annotation,
Recovery Against Physicians on Basis of Breach of Contract to
Achieve Particular Result or Cure, 43 A.L.R.3d 1221, 5 (1972 &
Supp. 1994). However, when courts have been presented with an
allegation that a special agreement or express warranty was made
and breached, such as we have here, the contract actions were
allowed and analyzed on contract law rather than negligence law.
See, id. (citing Compasano v. Claiborn, 2 Conn. Cir. 135, 196 A.2d 129 (1963)).
We therefore conclude there is merit in appellant's argument
that the trial court's application of section 16-114-206 to his
claim for breach of express warranty put him in the ridiculous
posture of having to prove negligence in order to sustain his
contract claim for breach of express warranty regarding the results
and therefore was error. Accordingly, we reverse and remand that
part of the trial court's order granting summary judgment to
appellee on the breach-of-warranty claim due to appellant's failure
to satisfy section 16-114-206.
We noted earlier that, as an alternative means of affirming
the summary judgment in his favor, appellee contends that appellant
failed to allege or prove appellee made an express warranty. In
support of this contention, appellee cites Brumley v. Naples, 320
Ark. 310, 896 S.W.2d 860 (1995), a case in which we recently
affirmed a summary judgment in favor of a physician who was sued
for breach of contract. Brumley is distinguished from the present
case on two bases: one, Brumley involved a breach-of-contract claim
rather than a breach-of-express-warranty claim; and two, Brumley
did not involve advertisements espousing guarantees as does the
present case. While it is true that appellant stated in his
deposition that appellee made no other representations to him than
those in the advertisements that appellant observed in a men's
restroom and in the telephone directory's yellow pages, appellee
nevertheless made the representations in the advertisements and
appellee does not dispute this. Attached to appellant's response
to the motion for summary judgment was appellee's deposition
wherein he stated he placed the alleged advertisements in the
yellow pages and in men's rooms and ladies' rooms in restaurants in
Little Rock, Conway, Hot Springs, Jacksonville, and Shreveport.
Copies of the alleged advertisements were also attached to the
response. Appellant stated in his deposition, which was also
attached to his response, that he discussed the advertisements with
appellee and that they discussed the particular procedures appellee
performed on the man depicted in the advertisements as similar to
the procedures appellee would perform on appellant. Moreover,
appellant alleged in his complaint that he relied on the
advertisements.
Due to the erroneous ruling on the application of section 16-
114-206 to appellant's breach-of-warranty claim, the trial court
did not rule on the issue of whether the advertisements were
express warranties made by appellee. While we are not aware of any
Arkansas law directly on point, we are well aware that it has long
been the law in this state that physicians may make an express
contract with a patient whereby the physician makes a special
agreement with the patient or promises to cure the patient. Guild
v. Whitlow, 162 Ark. 108, 257 S.W. 383 (1924). The General
Assembly was no doubt aware of this rule of law when it included
breach of warranty and contract in the definitions of actions for
medical injury. Likewise, we are aware that under the Uniform
Commercial Code, which we acknowledge is not applicable to a
contract for services by a physician but nevertheless provides
guidance on contract principles by analogy, this court could not
say as a matter of law that no express warranty had been made when
a seller of goods placed advertisements of his goods relating to
their quality. Little Rock School Dist. v. Celotex Corp., 264 Ark.
757, 574 S.W.2d 669 (1978). Consequently, because appellant did
indeed plead and offer some proof of an express warranty made by
appellee, and because appellant alleged by complaint that he relied
on the advertisements in receiving treatment, we cannot affirm the
summary judgment on the basis that appellant failed to plead or
prove that a contract or express warranty existed.
In summary, the trial court erred in concluding as a matter of
law that expert testimony is required per se in every action for
medical injury. It erred further by applying section 16-114-206 to
the claim for breach of express warranty and thereby terminating
the breach-of-warrranty claim without considering and applying
principles of contract and warranty law.
II. WAIVER OF DEFENSES
Appellant's second point on appeal is his contention that a
medical-care provider waives the protection afforded by the
Arkansas Medical Malpractice Act when the medical-care provider
makes an express warranty with respect to the success or results of
a particular treatment. We do not address the merits of this point
due to appellant's failure to obtain a ruling on this issue from
the trial court thereby waiving the issue on appeal. Brumley, 320
Ark. 310, 896 S.W.2d 860.
Appellant's remaining arguments for reversal raise
constitutional challenges to the Arkansas Medical Malpractice Act.
It is well-settled that no constitutional issues are decided except
those that are necessary to a decision in the specific case at
hand. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). The
burden-of-proof provision, section 16-114-206, is the only
provision of the Act that the trial court applied to appellant's
detriment in this case. Therefore, section 16-114-206 is the only
part of the Act that appellant has standing to challenge.
Furthermore, our decision that the trial court erred in applying
section 16-114-206 to appellant's breach-of-warranty claim,
however, limits our review of appellant's remaining arguments to
the negligence claim.
III. FEDERAL CONTRACT CLAUSE
Appellant's third argument for reversal is that the Arkansas
Medical Malpractice Act impairs his right to contract and therefore
violates the United States Constitution, art. 1, 10, cl. 1, the
so-called "contract clause." It is well-settled that the contract
clause is not to be construed literally, rather it is construed to
allow a state to exercise its police powers. See, e.g., Allied
Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978). However,
the contract clause does "impose some limits upon the power of a
State to abridge existing contractual relationships, even in the
exercise of its otherwise legitimate police power." Id. at 242
(emphasis added). The operative facts of this case occurred well
after the passage of the Arkansas Medical Malpractice Act in 1979.
Thus, even assuming arguendo, that appellant and appellee had a
contract, it was not an existing contract when the General Assembly
enacted the Arkansas Medical Malpractice Act and section 16-114-
206. Accordingly, we cannot say section 16-114-206 violated the
contract clause in this case.
IV. EQUAL PROTECTION
Appellant's fourth argument for reversal is that the Arkansas
Medical Malpractice Act violates the equal-protection clauses of
the United States and Arkansas Constitutions. U.S. Const. amend.
14; Ark. Const. art. II, 18. Appellant contends the Act, in its
entirety, denies equal protection of the laws to medical-
malpractice plaintiffs because it, among many other things, grants
medical-care providers immunity from civil "self-incrimination,"
imposes a standard of proof far above that required for other
professionals, adopts the shortest statute of limitations for
medical-care providers than for any other professional malpractice
claims, and establishes a scheme for the payment of damages that is
not available to other professionals.
The only argument appellant articulates under this point that
could relate to section 16-114-206 is that the Act adopts "a
standard of proof well far and above that required of other
professionals in our society[.]" Appellant does not make any
convincing argument for such a contention, and because section 16-
114-206 does no more than state the common-law elements of a claim
for negligence in the medical-malpractice context, it is not
apparent to us without further research that the argument is well-
founded. We do not address such arguments. Equity Fire and Cas.
Co. v. Needham, 323 Ark. 22, ___ S.W.2d ___ (1996).
V. SPECIAL LEGISLATION
Appellant's fifth argument for reversal is that the Arkansas
Medical Malpractice Act violates the prohibition against special
legislation as stated in the Arkansas Constitution, art. 5, 25.
Appellant does not rely on Amendment 14 to the Arkansas
Constitution. The clause at issue here prohibits the General
Assembly from enacting a special law where a general law can be
made applicable. It is well-settled that the clause at issue here
is not mandatory, rather it is directory or merely cautionary as
applied to the General Assembly. See, e.g., Greer v. Merchants &
Mechanics Bank, 114 Ark. 212, 169 S.W. 802 (1914). In other words,
this clause is classified as one that leaves compliance to the
discretion of the General Assembly. Id. Therefore, appellant's
fifth point is entirely without merit.
VI. SEPARATION OF POWERS
Appellant maintains that section 16-114-206(a) is in direct
conflict with Ark. R. Evid. 702. He phrases the issue as one of
the rule's permissible expert testimony versus the state's
mandatory expert testimony and contends that the rule must be held
to have superseded the statute.
Appellant's argument is based on a false premise. There is no
provision of section 16-114-206(a) that mandates the presentation
of expert testimony. Rather, it is the facts of any given case
that determine whether expert testimony is required in a medical-
malpractice claim for negligence. Accordingly, appellant's sixth
point for reversal is without merit.
CROSS-APPEAL
As cross-appellant, appellee argues the trial court erred in
denying his motion to correct the judgment so that appellant's
complaint would be dismissed with prejudice. The trial court's
order denying appellee's motion specifically states that the
complaint does indeed state a cause of action, but must fail
because of a failure of proof. The order also states that it is
within the trial court's discretion to enter summary judgment
either with or without prejudice. In that respect, the order is
erroneous.
The questions of whether a complaint states a cause of action
and whether a plaintiff has failed to offer sufficient proof of a
cause of action to survive a defendant's motion for summary
judgment are questions of law with respect to which trial courts
have no discretion. This court has discussed the effect of a
summary-judgment dismissal on a plaintiff's ability to re-file a
complaint:
[S]ummary judgment based upon a failure to state a claim
upon which relief can be granted is different from a
summary judgment based upon a lack of disputed material
facts, which results in a party's entitlement to the
judgment as a matter of law. The first is the failure to
state a claim, the second is the failure to have a claim.
When summary judgment is granted upon failure to have a
claim, and the ruling is affirmed on that basis, the
matter is ended with prejudice. However, when summary
judgment is granted in the trial court because of failure
to have a claim, but is affirmed on the basis of failure
to state a claim, we modify to make the dismissal without
prejudice in order to afford the plaintiff-appellant a
chance to plead further. Ratliff v. Moss, 284 Ark. 16,
678 S.W.2d 369 (1984); ARCP Rule 12(j).
West v. Searle & Co., 305 Ark. 33, 36, 806 S.W.2d 608, 610 (1991)
(citations omitted). The trial court's order specifically states
that it granted appellee's motion for summary judgment because
appellant had not proven his case. In other words, appellant did
not have a case. Consistent with West, the summary judgment should
have been granted with prejudice, and we modify the judgment to so
reflect.
On direct appeal, the part of the order granting summary
judgment as to the claim for negligence is affirmed; the part of
the order granting summary judgment as to the claim for breach of
warranty is reversed and remanded. On cross-appeal, the order is
affirmed as modified to reflect that the complaint be dismissed
with prejudice as to the negligence claim.
DUDLEY and GLAZE, JJ., dissent. 2/5/96 *ADVREP5-A*
ROGER HAASE,
APPELLANT,
V.
C. WAYNE STARNES, M.D.,
APPELLEE.
95-892
DISSENTING OPINION.
Robert H. Dudley, Justice.
Roger Haase filed a medical malpractice action, which sounds
in both tort and contract, against Dr. C. Wayne Starnes. Starnes
holds himself out to be a specialist in hair transplant and scalp
reduction surgery. In his complaint, Haase alleged that Starnes
advertised, "We guarantee you a full, growing head of hair for the
rest of your life" and "Transplants guaranteed to grow for the rest
of your life." Haase alleged that, as a result of his reliance on
the advertisements, he contracted with Starnes to perform a series
of hair transplants, grafts, and scalp reductions, and that during
the course of the treatments, his scalp became infected, which
caused a "permanent scar on his head which is incapable of
sustaining hair transplants." He concluded by alleging that
Starnes breached the "representations and warranties" contained in
his advertisements.
The complaint sounds in both tort and contract. Both the tort
and the contract allegations are for a "medical injury." "Action
for medical injury" means any action against a medical care
provider, whether based in tort, contract, or otherwise, to recover
damages on account of medical injury. Ark. Code Ann. 16-114-
201(1) (1987). "Medical injury" means any adverse consequence
sustained in the course of professional services being rendered by
a medical doctor, "whether resulting from negligence, error, or
omission in the performance of such services; ... or in breach of
warranty or in violation of contract." Id. 16-114-201(3).
The medical malpractice act provides that it "applies to all
causes of action for medical injury accruing after April 2, 1979,
and as to such causes of action, it shall supersede any
inconsistent provision of law." Id. 16-114-202. Section 16-114-
206(a) of the Arkansas Code Annotated provides the party having the
burden of proof in "any" action for medical injury "shall" prove
that the doctor failed to act in accordance with the degree of
skill and learning used by other doctors in the same type of
practice in the same or similar locality. Id. 16-114-
206(a)(1).
The trial court ruled that this was a suit for a medical
injury and that it would be necessary for Haase to comply with the
Medical Malpractice Act. Ark. Code Ann. 16-114-201 to -209.
Haase stipulated that at trial he would not offer expert testimony
to prove that Starnes failed to maintain the proper standard of
care of a doctor in the same or similar community. The trial court
dismissed Haase's complaint without prejudice. The majority
opinion then holds that the trial court erred in dismissing the
contract claim. I dissent from that part of the holding.
1.
We have often said that when the language of an act is clear
and contains no ambiguity, we will interpret it to mean only what
it provides. E.g., Arkansas Bank & Trust Co. v. Douglas, 318 Ark.
457, 885 S.W.2d 863 (1994). We have often written that the
cardinal rule of statutory construction to which all other
interpretive guides must yield is to give effect to the legislative
intent. Graham v. Forrest City Hous. Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). In determining legislative intent, we have said
that we look to the language of the act, the subject matter, the
object to be accomplished, the purpose to be served, the remedy
provided, the legislative history, and other appropriate matters.
McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).
The language contained in the act at issue is clear and
certain. It provides that the Medical Malpractice Act "shall"
apply to "any" and "all" actions for medical injury "whether based
in tort, contract, or otherwise" and it shall apply to actions for
"breach of warranty or ... violation of contract." The majority
opinion construes the act to mean that a contract action is not
subject to the burden-of-proof provision.
The purpose of the act and the object to be accomplished by
the Medical Malpractice Act and the legislative history are set out
in the act's emergency clause, as follows:
It is hereby found, determined and declared by the
General Assembly that the threats of legal actions for
medical injury have resulted in increased rates for
malpractice insurance which in turn causes and
contributes to an increase in health care costs placing
a heavy burden on those who can least afford such
increases and that the threat of such actions contributes
to expensive medical procedures to be performed by
physicians and others which otherwise would not be
considered necessary and that this Act should be given
effect immediately to help control the spiraling cost of
health care.
Act 709 of 1979, 11 (emergency clause). We have said the statute
serves a valid purpose because it was enacted to prevent doctors
from practicing "defensive medicine" and to help control the
spiraling cost of medical care. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).
Statutes treating medical malpractice actions in both tort and
contract together are not new. Earlier medical malpractice
limitations acts discussed contract actions and tort actions in the
same statute. Section 37-205 of the Arkansas Statutes Annotated
provided that "all actions of contract or tort for malpractice ...
against physicians [and] surgeons ... shall be commenced within two
years."
We have often written that, in enacting statutes, the General
Assembly is presumed to have known of court decisions on the same
subject and is presumed to have acted with reference to those
decisions. J. L. McEntire & Sons, Inc. v. Hart Cotton Co., Inc.,
256 Ark. 937, 511 S.W.2d 179 (1974). In enacting the Medical
Malpractice Act and making it applicable to actions in both tort
and contract, the General Assembly and the drafters of the act are
presumed to have acted in reliance on our case of Helton v. Sisters
of Mercy of St. Joseph's Hospital, 234 Ark. 76, 351 S.W.2d 129
(1961). There, the plaintiff filed a tort malpractice action
against a hospital and then separately filed a breach of contract
malpractice action against the same hospital. The tort and
contract actions were consolidated. In the tort action, we held
that the hospital was a public charity and therefore not liable.
In the contract action, we wrote:
We next come to the proposition of whether the
hospital can be liable for the injuries sustained by the
little girl on the theory that there was a breach of
contract. There was no express contract setting out the
duties and the obligations of the parties. Mr. Helton
delivered his little girl to the hospital for the
examination. At that time he signed an authorization for
an examination to be made. In this written document
neither party agrees to do anything, and it cannot be
called a contract in any sense of the word. In order to
invoke the doctrine that it was the duty of the hospital
to use due care, and liability on its part for the
failure to use such care, resort must be had to operation
of law. In ordinary circumstances, no charitable
institution being involved, the law would imply that it
was the duty of the hospital to use due care, and there
could be liability for the failure to use such care. But
the law does not imply something that is against public
policy. How can it be said that the law implies an
obligation to use due care, and liability for the failure
to use such care, where the public policy of the state
imposes no duty and liability in that respect? The
Cabbiness case clearly points out that immunity of a
charitable corporation for liability for negligence is so
thoroughly established in this State that the doctrine
has become a rule of property. In these circumstances we
cannot say that the law implies that it is the duty of
the hospital to use due care, and liability for not doing
so. If would appear that if there is any implication
supplied by law it would be that there is no liability
for the failure to use due care. "The law never implies
an agreement against its own restrictions and
prohibitions." Los Angeles Warehouse Co. v. Los Angeles
County, 139 Cal. App. 368, 33 P.2d 1058.
Helton v. Sisters of Mercy of St. Joseph's Hosp., 234 Ark. at 81-
82, 351 S.W.2d at 131-32 (emphasis added).
The General Assembly presumably read the foregoing to mean
that a malpractice action is subject to the public policy of this
state regardless of whether it is labeled an action in tort or a
contract. The members of the General Assembly likely understood
that a Medical Malpractice Act that was designed to limit the
increase in medical care costs could, as a matter of public policy,
be applied to both tort and contract causes of action. The General
Assembly has the authority to limit malpractice actions for a
legitimate state purpose. Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984). As an additional factor, the General Assembly
presumably considered all of the issues involved, and in addition
to limiting costs of medical care, sought to avert personal
financial disaster for physicians since a suit for breach of
contract is usually not covered by malpractice insurance. Jack W.
Shaw, Jr., Annotation, Recovery Against Physician On Basis of
Breach of Contract To Achieve Particular Result or Cure, 43
A.L.R.3d 1221, 1227 (1972 & Supp. 1994).
In summary, the words "any action against a medical provider,
whether based in tort, contract or otherwise," have a clear
meaning. The legislative intent was for compliance with the act
whether the malpractice action was filed in contract or tort. It
should be presumed that in drafting the act, the General Assembly
was aware that our prior case law treats medical malpractice
actions with a single public policy, regardless of whether the
action is labeled tort or contract. Our case law provides that,
while contract warranties may be implied by law, they should never
be implied when it is against public policy to do so.
2.
From the foregoing, it seems undisputed that the burden-of-
proof section of the Medical Malpractice Act, section 16-114-206,
must be complied with in malpractice actions sounding in tort. In
addition, when a person goes to a physician for medical services
and the physician accepts that person as a patient, a contract is
implied in law. This implied contract is governed by the Medical
Malpractice Act. It would seem to be beyond any real dispute that,
to apply the public policy and standard of care expressed in the
Medical Malpractice Act, the same burden-of-proof section, 16-114-
206, must be complied with in a malpractice action grounded on an
a breach of a warranty implied by law. This is because the law
should never imply a warranty that is contrary to public policy.
The issue in this case, however, is whether the burden-of-proof
section must be complied with in malpractice actions based on an
express contact.
The majority opinion holds that a physician may bind himself
to a specific result by express contract and when the physician
breaches that contract, it is not necessary for the injured party
to comply with the burden-of-proof section of the Medical
Malpractice Act. There is no real dispute that ordinarily a
physician may by express contract bind himself to perform a
specific result with an operation. See Annotation, Physician's or
Surgeon's Warranty of Success of Treatment or Operation, 27 A.L.R.
1250, 1255 (1923).
The first question is whether such a contract is contrary to
the public policy expressed in the Medical Malpractice Act.
Without discussing the matter in any of the myriad of possible
details, it seems that the better policy is to hold that a
physician should be able to enter into an express contract for
specified results. It appears that all jurisdictions hold that,
without an express contract, a physician does not contract to
achieve a particular result. See Annotation, 43 A.L.R.3d at 1230.
In addition, a number of jurisdictions have held that such an
express contract will not be supported by the consideration paid
for the physician's normal undertaking to use ordinary skill, but
must be supported by a separate consideration. 43 A.L.R.3d at
1233. Haase did not plead any special consideration in this case,
and the majority opinion tacitly rejects special consideration as
an element of a contract for specified results.
The majority opinion holds, without meaningful discussion,
that Haase's reliance on an advertisement constitutes an express
contract for a particular result. As authority, it cites a
warranty-of-goods case that involved the Uniform Commercial Code,
Little Rock School District v. Celotex Corp. 264 Ark. 757, 574 S.W.2d 669 (1978). However, other jurisdictions treat contracts
for personal services of a physician as being different from
ordinary goods. In light of the Medical Malpractice Act, it would
seem reasonable to hold, as many other jurisdictions have done,
that in order for there to be a valid express contract it must be
supported by a separate consideration. See, e.g., Sard v. Hardy,
367 A.2d 525 (Md. App. 1976). Some jurisdictions require such a
contract to be in writing. See, e.g., Zapata v. Rosenfeld, 811 S.W.2d 182 (Tex. App. 1991). The underlying reason for a written
contract is obvious. A physician should, as a part of the
treatment, reassure the patient that he or she will be all right
and will get well, and because such statements are therapeutic
they should not be discouraged by law. If such statements might
form the basis of an express contract, they will not be made and
their value will be lost.
Even when one accepts the majority opinion's holding that the
reliance on an advertisement, without more, can constitute an
express contract, the trial court was correct in dismissing this
case. The express contract, as upheld in the majority opinion, was
for a "full, growing head of hair for the rest of your life" and
for transplants "to grow for the rest of your life." Starnes did
not advertise, and therefore did not expressly contract, that the
patient would not become infected. The alleged warranty did not
mention infection. The allegation sounds in tort and comes within
the purview of the Medical Malpractice Act. Haase next alleged
that, as a result of the infection, he had a scar and that the scar
is incapable of sustaining hair transplants. The advertisement
assured that transplants would grow a full and growing head of hair
for the rest of the patient's life. Haase does not allege that the
transplants have not grown, nor does he allege that he does not
have a full head of hair. He alleges that he has a scar and that
the scar will not sustain transplants. Thus, the trial court
correctly dismissed the cause of action without prejudice, and left
Haase free to plead further if, in fact, he has a valid cause of
action based upon an express contract.
As an alternate ground for reversal, the majority opinion
holds that, even if the burden-of-proof section of the Medical
Malpractice Act should be applicable to this case, the trial court
erred in ruling that expert testimony is necessary to prove Haase's
case. The holding is simply incorrect. Surgical scalp reduction,
hair transplantation, and infections as a result of such
procedures, are not matters that lie within the common knowledge of
jurors. Thus, expert testimony is necessary. Robson v. Tinnin,
322 Ark. 605, 911 S.W.2d 246 (1995).
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