Jerry Adams; Orville Beavers and Mary Beavers; Phyllis Dexter, Patricia Foshee and Carl Foshee; Deborah Ann Johnson and John Johnson; Darlene and Eddie Kinder; Ludivinia Gallegos Miller; Kenneth Mitchell and Jan Mitchell; Shelia Orrell and Tommy Orrell; Carl Rae and Priscilla Rae; Randy Stewart and Deondra Stewart, David Trusty and Pam Trusty v. James Arthur, M.D.; Allan Gocio, M.D.; Hot Springs Neurosurgery Clinic, P. A.; American Medical International, Inc. d/b/a National Park Medical Center; St. Joseph's Regional Health Center, P.A.

Annotate this Case
Jerry ADAMS; Orville Beavers and Mary
Beavers; Phyllis Dexter; Patricia Foshee and
Carl Foshee; Deborah Ann Johnson and John
Johnson; Darlene and Eddie Kinder; Ludivinia
Gallegos Miller; Kenneth Mitchell and Jan
Mitchell; Shiela Orrell and Tommy Orrell;
Carl Rae and Priscilla Rae; Randy Stewart and
Deondra Stewart; David Trusty and Pam Trusty
v. James ARTHUR, M.D.; Allan Gocio, M.D.; Hot
Springs Neurosurgery Clinic, P.A.; American
Medical International, Inc., d/b/a National
Park Medical Center; St. Joseph's Regional
Health Center, Inc.

96-1350; 96-1470; 96-1415; 96-1407; 96-1355; 96-1354; 96-1414; 96-
1406; 96-1409; 96-1408; 96-1405; 96-1365           ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 30, 1998


1.   Judgment -- summary judgment -- when granted. -- Summary judgment is
     to be granted by a trial court only when it is clear that
     there are no genuine issues of material fact to be litigated,
     and the party is entitled to judgment as a matter of law; once
     the moving party has established a prima facie entitlement to
     summary judgment, the opposing party must meet proof with
     proof and demonstrate the existence of a material issue of
     fact.

2.   Judgment -- summary judgment -- standard of review. -- On appellate
     review, the court determines if summary judgment was
     appropriate based on whether the evidentiary items presented
     by the moving party in support of the motion leave a material
     fact unanswered; the appellate court views the evidence in a
     light most favorable to the party against whom the motion was
     filed, resolving all doubts and inferences against the moving
     party; the appellate court's review focuses not only on the
     pleadings but also on the affidavits and other documents filed
     by the parties; the appellate court only approves the granting
     of the motion when the state of the evidence as portrayed by
     the pleadings, affidavits, discovery responses, and admissions
     on file is such that the nonmoving party is not entitled to a
     day in court, i.e., when there is not any genuine remaining
     issue of material fact and the moving party is entitled to
     judgment as a matter of law.

3.   Limitation of actions -- running of statute of limitations as defense --
     shifting burden. -- When the running of the statute of
     limitations is raised as a defense, the defendant has the
     burden of affirmatively pleading this defense; once it is
     clear from the face of the complaint that the action is barred
     by the applicable limitations period, the burden shifts to the
     plaintiff to prove by a preponderance of the evidence that the
     statute of limitations was in fact tolled.

4.   Limitation of actions -- fraud suspends running of statute of limitations.
     -- Fraud suspends the running of the statute of limitations,
     and the suspension remains in effect until the party having
     the cause of action discovers the fraud or should have
     discovered it by the exercise of reasonable diligence.

5.   Judgment -- summary judgment -- when trial court may resolve fact issues
     as matter of law. -- Although the question of fraudulent
     concealment is normally a question of fact that is not suited
     for summary judgment, when the evidence leaves no room for a
     reasonable difference of opinion, a trial court may resolve
     fact issues as a matter of law.

6.   Physicians & surgeons -- medical malpractice -- proof of knowing
     concealment not always necessary to show fraudulent concealment. -- Proof
     of knowing concealment is not always necessary to establish
     fraudulent concealment.

7.   Limitation of actions -- fraudulent concealment -- requirements for tolling
     statute. -- Regarding fraudulent concealment, no mere ignorance
     on the part of the plaintiff of his rights, nor the mere
     silence of one who is under no obligation to speak, will
     prevent the statute bar; there must be some positive act of
     fraud, something so furtively planned and secretly executed as
     to keep the plaintiff's cause of action concealed or
     perpetrated in a way that it conceals itself; if the
     plaintiff, by reasonable diligence, might have detected the
     fraud, he is presumed to have had reasonable knowledge of it. 

8.   Physicians & surgeons -- medical malpractice -- alleged breach of duty to
     obtain informed consent not equated with fact question as to fraudulent
     concealment. -- The supreme court rejected appellants' contention
     that, in all informed-consent cases, there will always be
     genuine issues of material fact regarding fraudulent
     concealment; the court was unwilling to accept such a
     formulation of fraudulent concealment that would effectively
     eviscerate the two-year limitations period in all informed-
     consent cases where the Medical Malpractice Act established a
     two-year limitations period for medical injury [Ark. Code Ann.
      16-114-203(a)], contemplated actions for lack of informed
     consent [Ark. Code Ann.  16-114-206(b)(1)], and yet did not
     carve out an exception to the limitations period in informed-
     consent cases; to equate an alleged breach of a physician's
     duty to obtain a valid informed consent with a fact question
     concerning fraudulent concealment would effectively destroy
     the limitations period that begins running from the moment of
     medical injury.  

9.   Physicians & surgeons -- medical malpractice -- heart of appellants' case
     was whether consent was informed. -- Although, in the present cases,
     evidence of affirmative misrepresentations, either in
     connection with or subsequent to appellants' surgeries, may
     have created a fact question of tolling the limitations period
     for the jury, fraudulent concealment must go beyond a mere
     failure to obtain an adequate informed consent; it must rise
     to the level of some positive act of fraud, something so
     furtively planned and secretly executed as to keep the
     plaintiff's cause of action concealed, or perpetrated in a way
     that it conceals itself; appellants consented to neck surgery
     involving an implantation, which they received, and the heart
     of their cases was whether or not that consent was informed.

10.  Physicians & surgeons -- medical malpractice -- limitations period --
     affirmative misrepresentation regarding surgery may operate to conceal
     patient's cause of action. --  An affirmative misrepresentation by
     a physician in connection with or after the surgery may
     operate to conceal the patient's cause of action; to hold
     otherwise would necessarily foster an environment of complete
     distrust between patient and physician; such a consequence
     could not have been intended by the General Assembly in
     enacting the two-year limitations period.   

11.  Judgment -- summary judgment -- allegation of fraudulent concealment not
     well suited for. -- An allegation of fraudulent concealment is
     not typically well suited for summary judgment, unless the
     evidence leaves no room for a reasonable difference of
     opinion.

12.  Judgment -- summary judgment for doctors affirmed in appellant A's case.
     doctor's statements did not create fact question as to fraudulent
     concealment. -- The evidence regarding the postsurgery disclosure
     of the use of hydroxylapatite during neck surgery raised a
     factual issue as to whether the procedure was innovative and
     experimental and whether appellee physicians were required to
     advise appellant A prior to obtaining his consent of the
     innovative nature of the operation and the available options
     and dangers involved; the supreme court, however, was unable
     to say that the doctors' alleged omissions in failing to so
     inform appellant A, or the character of the representations
     the doctors actually made, rose to the level of some positive
     act of fraud, something so furtively planned and secretly
     executed as to keep the plaintiff's cause of action concealed,
     or perpetrated in a way that it concealed itself;
     significantly, physician I made no representations concerning
     what sort of material would be used in the surgery; while some
     of physician I's statements were arguably misrepresentations
     about efficacy, they did not rise to the level of affirmative
     representations sufficient to create a fact question with
     respect to fraudulent concealment; the supreme court concluded
     that no fact question existed regarding fraudulent concealment
     and affirmed the grant of summary judgment to appellee
     doctors.

13.  Judgment -- summary judgment for doctors reversed in appellants R and S's
     case -- representation concerning nature of material to be used in surgery
     created fact question as to fraudulent concealment. -- Where physician
     II allegedly told appellant R before neck surgery that he
     would use an "artificial bone" growing in his laboratory, the
     supreme court held that this affirmative statement, an
     arguable misrepresentation concerning the nature of the
     material to be used in the surgery, was at least sufficient to
     create a fact question regarding fraudulent concealment and
     constituted proof leaving room for a reasonable difference of
     opinion as to whether the causes of action of appellants R and
     S were fraudulently concealed; the summary judgment to
     appellee doctors was reversed, and the case was remanded.

14.  Judgment -- summary judgment for doctors reversed in case of appellants B
     and C -- alleged misrepresentation created fact question as to fraudulent
     concealment. -- Where, prior to neck surgery, physician I met
     with appellant B and told him that he would use bone from the
     bone bank, the supreme court, concluding that this was
     evidence of an affirmative act that would have prevented
     appellant B from learning the actual nature of the material
     used in his surgery, held that this alleged misrepresentation
     was sufficient to create a fact question regarding fraudulent
     concealment; the court reversed the grant of summary judgment
     to appellee doctors in the case of appellants B and C and
     remanded the matter. 

15.  Judgment -- summary judgment for doctors affirmed in case of appellants G
     and H -- fact question as to fraudulent concealment not established. --
     The supreme court affirmed the summary judgment to appellee
     doctors in the case of appellants G and H because of the lack
     of evidence of positive acts of fraudulent concealment on the
     part of the doctors; while the additional evidence offered
     undoubtedly raised a factual issue concerning the experimental
     nature of hydroxylapatite, this went to the merits of the
     informed-consent claims and did not rise to the level of
     fraudulent concealment; the court was unable to say that the
     representations allegedly made by the doctors established a
     fact question regarding fraudulent concealment.

16.  Judgment -- summary judgment for doctors affirmed in case of appellants L
     and M -- no representations made concerning material to be used in
     surgery. -- Where, prior to neck surgery, appellant M had a
     telephone conversation with physician I, who did not tell her
     anything about the surgery or what he might use as a graft
     material, and where appellant M did not learn until after she
     had become aware that other lawsuits had been filed and had
     obtained her medical records, that hydroxylapatite had been
     used in her surgery, the supreme court affirmed the grant of
     summary judgment in the case of appellants L and M because of
     the lack of evidence of positive acts of fraudulent
     concealment on the part of appellee doctors; the court noted
     that appellant had assumed that bone from the bone bank would
     be used in her surgery, but the doctors made no
     representations concerning what material would be used; beyond
     the failure to inform, or a mere continuation of this
     nondisclosure, there must have been something more in order to
     create a fact question regarding fraudulent concealment.

17.  Judgment -- summary judgment for doctors reversed in cases of appellants
     E and F, P and Q, N and O, K, and D -- representations created fact
     question as to fraudulent concealment. -- In the cases involving
     appellants E and F, P and Q, N and O, K, and D, the supreme
     court reversed the grant of summary judgment to appellee
     doctors and remanded where the crucial allegations were the
     doctors' alleged representations concerning "synthetic discs"
     and an "artificial hip bone"; a reasonable inference from the
     alleged statements concerning the nature of the material to be
     used was that the material was appropriate for use in the
     spine; thus, the representations at a minimum created a fact
     question concerning fraudulent concealment.   

18.  Judgment -- summary judgment for doctors reversed in case of appellants I
     and J -- representation that material was "not experimental" created fact
     question as to fraudulent concealment. -- Where, in the case of
     appellants I and J, appellant I had knowledge that a
     "synthetic fiber" would be used in her neck, but physician II
     allegedly told her that the material was "not experimental,"
     the supreme court reversed and remanded the grant of summary
     judgment to appellee doctors, holding that the representation
     created a fact question regarding fraudulent concealment.

19.  Judgment -- summary judgment for doctors reversed in case of appellants T
     and U -- appellant T not told material was fractured. -- Where, in the
     case of appellants T and U, physician II examined an x-ray
     during a postsurgery office visit and told appellant T that
     everything looked fine when, in fact, the material inserted
     had already fractured, and where at no time, even after he
     terminated his care with physician II, was appellant T told
     that the material was fractured, the supreme court reversed
     the grant of summary judgment to appellee doctors and remanded
     for further proceedings; there existed genuine issues of
     material fact concerning whether the doctors fraudulently
     concealed appellants T and U's causes of action.

20.  Judgment -- summary judgment for hospitals affirmed on fraudulent-
     concealment claims -- evidence of affirmative conduct lacking. -- With
     regard to fraudulent concealment, the supreme court rejected
     appellants' arguments against appellee hospitals in all cases,
     noting that it was unclear whether appellants had even
     sufficiently pleaded fraudulent concealment against appellee
     hospitals; to the extent that appellee hospitals may have owed
     appellants a duty to obtain their informed consent to the use
     of hydroxylapatite, the court observed that it would affirm on
     the basis that, while there was evidence that appellee
     hospitals knew or should have known of appellee doctors' use
     of the material and its experimental nature, evidence of
     affirmative conduct on the part of appellee hospitals to
     conceal the appellants' causes of action was lacking. 

21.  Torts -- product-liability claims against hospitals not moot. -- The
     supreme court declined to hold that appellants' product-
     liability claims against appellee hospitals were moot; the
     orders of dismissal with the manufacturer in the records
     showed only that the matter had been compromised and settled
     and that the cause against the manufacturer was dismissed with
     prejudice, but the court, not having the benefit of any
     release between the appellants and the manufacturer, would be
     left to speculate concerning the terms of that release, as
     well as the potential viability of cross-claims between the
     parties.

22.  Limitation of actions -- two-year period in Medical Malpractice Act
     supersedes three-year period in Product Liability Act. -- Where the two-
     year statute of limitations found in the Medical Malpractice
     Act conflicted with the three-year limitations period found in
     the Product Liability Act and, for that matter, the same
     limitations period applicable to claims brought pursuant to
     the Strict Liability Act, the supreme court held that the two-
     year limitations period found in the Medical Malpractice Act
     supersedes that found in the Product Liability Act.

23.  Judgment -- summary judgment for hospitals Limitation of actions -- Medical
     Malpractice Act's two-year period governed appellants' product-liability
     claims. -- Although the Product Liability Act, Act 511 of 1979,
     and the Medical Malpractice Act, Act 709 of 1979, were enacted
     in the same legislative session, and an implied repealer is
     not favored, the Medical Malpractice Act, as the latter
     enactment within the session, may be seen as the prevailing
     expression of legislative intent; for that reason, and in
     light of the all-inclusive language used by the General
     Assembly in defining an action for medical injury to encompass
     those actions "whether based in tort, contract, or otherwise,"
     the supreme court concluded that the Medical Malpractice Act's
     two-year statute of limitations governed appellants' product-
     liability claims brought against appellee hospitals and that
     the trial court did not err in granting summary judgment to
     appellee hospitals on appellants' product-liability claims. 

24.  Constitutional law -- challenge to Medical Malpractice Act's statute of
     limitations -- rational-basis standard of review. -- Concerning
     appellants' challenge to the constitutionality of the Medical
     Malpractice Act's statute of limitations, Ark. Code Ann.  16-
     114-203 (1987), the supreme court, acknowledging that the
     statute might more accurately be described as a statute of
     repose, declined to apply strict scrutiny in examining its
     constitutionality and held instead that the applicable
     standard of review was rational basis.

25.  Constitutional law -- equal protection -- rational-basis requirement for
     legislation affording different treatment for different classifications. --
     The constitutional guarantee of equal protection does not
     prohibit legislation affording different treatment for persons
     in different classifications so long as there is a rational
     basis for the different classifications and they have some
     reasonable relation to the objectives of the legislation.

26.  Limitation of actions -- public-policy matter -- General Assembly's
     prerogative. -- Any statute of limitations will eventually
     operate to bar a remedy; the time within which a claim should
     be asserted is a matter of public policy, the determination of
     which lies almost exclusively in the legislative domain; the
     decision of the General Assembly in that regard will not be
     interfered with by the courts in the absence of palpable error
     in the exercise of the legislative judgment; simply put, it is
     the General Assembly's prerogative to set a time in which a
     claim must be brought.

27.  Constitutional law -- rational basis not lacking in Medical Malpractice
     Act's statute of limitations. -- The supreme court was unable to
     say that the limitations period found in section 16-114-203
     lacked a rational basis or deprived a claimant of a
     constitutional right to redress of wrongs or a jury trial.

28.  Constitutional law -- trial court did not err in declining to find Medical
     Malpractice Act's limitations period unconstitutional. -- The supreme
     court concluded that a rational basis existed for the Medical
     Malpractice's Act exception to its limitations period in
     foreign-object cases; the trial court did not err in declining
     to find the limitations period unconstitutional as violative
     of equal protection.


     Appeal from Garland Circuit Court; Tom Smitherman, Judge;
affirmed in part;reversed and remanded in part.
     Boswell, Tucker, Brewster & Hicks, by: George R. Wise, Jr.,
for appellants Jerry Adams; Orville Beavers and Mary Beavers;
Phyllis Dexter; Patricia Foshee and Carl Foshee; Deborah Ann
Johnson and John Johnson; Darlene and Eddie Kinder; Ludivinia
Gallegos Miller; Kenneth Mitchell and Jan Mitchell; Shiela Orrell
and Tommy Orrell; Carl Rae and Priscilla Rae; Randy Stewart and
Deondra Stewart; David Trusty and Pam Trusty.
     Friday, Eldredge & Clark, by: J. Phillip Malcom and Tonia P.
Jones, for appellees James Arthur, M.D.; Allan Gocio, M.D.; Hot
Springs Neurosurgery Clinic, P. A.
     Huckabay, Munson, Rowlett & Tilley, P.A., by: Mike Huckabay
and Beverly A. Rowlett, for appellee American Medical
International, Inc., d/b/a National Park Medical Center in cases
96-1350, 96-1470, and 96-1405.
     Wright, Lindsey & Jennings, by: Edwin L. Lowther, Jr., and Don
S. McKinney, for appellee St. Joseph's Regional Health Center,
Inc., in cases 96-1415, 96-1407, 96-1355, 96-1354, 96-1414, 96-
1406, 96-1409, 96-1408, and 96-1365. 

     Anaabelle Clinton Imber, Justice.
     These twelve cases involve identical core issues.  By
agreement of the parties, the cases were orally argued and
submitted simultaneously.  In the interest of efficiency, we
dispose of them in a single opinion.  All appellants were patients
(or their spouses) of the appellee doctors, Drs. James Arthur and
Allan Gocio.  The appellants underwent anterior cervical fusion
surgeries.  In performing the surgeries, the doctors used
hydroxylapatite, known by the trade name "Orthoblock," as a spacer
in the spine.
     Following their respective surgeries, appellants filed
complaints against the doctors and their clinic, Hot Springs
Neurosurgery Clinic, P.A (the "doctors"), alleging that they were
damaged as a result of the implantation of Orthoblock.  In each
case the complaint was filed more than two years after the
respective surgery.  Appellants sought recovery based on
negligence, battery, fraud, outrage, strict liability, and breach
of warranty.  The hospitals where the surgeries were performed were
also named as defendants.  In three cases, the hospital was
American Medical International, Inc. ("AMI"), while in the
remaining nine cases the hospital was St. Joseph's Regional Health
Center, Inc. ("St. Joseph's").  The manufacturer of Orthoblock,
Calcitek, Inc., was also named as a defendant in all twelve cases.
     The doctors and the hospitals moved for summary judgment in
part arguing that all claims were barred by the limitations period
found in the Arkansas Medical Malpractice Act.  The trial court
agreed and granted summary judgment to the doctors and hospitals
finding that all claims were barred by the two-year limitations
period for medical injury found in the Medical Malpractice Act,
Ark. Code Ann.  16-114-203(a) (Supp. 1997).  The trial court
additionally declined to find that the Medical Malpractice Act was
unconstitutional.  While Calcitek did not join in these motions for
summary judgment, orders of dismissal were entered in these cases
reflecting a settlement with Calcitek.  The present appeals
followed.  We affirm the grant of summary judgment in favor of the
appellee doctors in Adams, No. 96-1350, Johnson, No. 96-1355,
Mitchell, No. 96-1406, and reverse and remand as to the appellee  
doctors in Stewart, No. 96-1405, Foshee, No. 96-1407, Rae, No. 96-
1408, Orrell, No. 96-1409, Miller, No. 96-1414, Dexter, No. 96-
1415, Trusty, No. 96-1365, Kinder, No. 96-1354, and Beavers, No.
96-1470.  As to the appellee hospitals, we affirm the grant of
summary judgment in all cases.  
I.  Fraudulent Concealment.
     The appellants argue that the grant of summary judgment to
the doctors and hospitals was erroneous because genuine issues of
material fact existed as to whether fraud or fraudulent
concealment tolled the limitations periods in each case.  The law
is well settled that summary judgment is to be granted by a trial
court only when it is clear that there are no genuine issues of
material fact to be litigated, and the party is entitled to
judgment as a matter of law.  Wallace v. Broyles, 331 Ark. 58,
961 S.W.2d 712 (1998), supp. opinion on denial of reh'g, Ark.
slip op. March 5, 1998.  Once the moving party has established a
prima facie entitlement to summary judgment, the opposing party
must meet proof with proof and demonstrate the existence of a
material issue of fact.  Id.  On appellate review, this court
determines if summary judgment was appropriate based on whether
the evidentiary items presented by the moving party in support of
the motion leave a material fact unanswered.  Id.  This court
views the evidence in a light most favorable to the party against
whom the motion was filed, resolving all doubts and inferences
against the moving party.  Id.  Our review focuses not only on
the pleadings, but also on the affidavits and other documents
filed by the parties.  Id.  We have further explained that:
     We have ceased referring to summary judgment as [a]
     "drastic" remedy.  We now regard it simply as one of
     the tools in a trial court's efficiency arsenal;
     however, we only approve the granting of the motion
     when the state of the evidence as portrayed by the
     pleadings, affidavits, discovery responses, and
     admissions on file is such that the nonmoving party is
     not entitled to a day in court, i.e., when there is not
     any genuine remaining issue of material fact and the
     moving party is entitled to judgment as a matter of
     law.

Id.
     When the running of the statute of limitations is raised as
a defense, the defendant has the burden of affirmatively pleading
this defense.  First Pyramid Life Ins. Co. v. Stoltz, 311 Ark.
313, 843 S.W.2d 842 (1992), cert. denied, 510 U.S. 908 (1993). 
However, once it is clear from the face of the complaint that the
action is barred by the applicable limitations period, the burden
shifts to the plaintiff to prove by a preponderance of the
evidence that the statute of limitations was in fact tolled.  Id. 
Fraud suspends the running of the statute of limitations, and the
suspension remains in effect until the party having the cause of
action discovers the fraud or should have discovered it by the
exercise of reasonable diligence.  First Pyramid, supra. 
Although the question of fraudulent concealment is normally a
question of fact that is not suited for summary judgment, when
the evidence leaves no room for a reasonable difference of
opinion, a trial court may resolve fact issues as a matter of
law.  Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995).
     A.  Appellee Doctors.
     In support of their fraudulent-concealment argument, the
appellants primarily rely on Howard v. Northwest Arkansas
Surgical Clinic, P.A., 324 Ark. 375, 921 S.W.2d 596 (1996).  In
Howard, this court explicitly rejected the notion that any time a
foreign object was left by a physician in a patient, the only
exception to the two-year limitations period was the one year
from discovery provision contained in Ark. Code Ann.  16-114-
203(b) (1987).  Rather, we had recognized in past foreign-object
cases that proof of knowing concealment was not always necessary
to establish fraudulent concealment.  Howard, supra (citing
Faulkner v. Huie, 205 Ark. 332, 168 S.W.2d 839 (1943) and Burton
v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (1934)).  
     The appellant in Howard had come forward with some evidence
to support concealment of the fact that her treating physician
had allowed the tip of a needle to remain in the patient's body
with knowledge that it was there.  Thus, the appellant's treating
physician was not entitled to summary judgment based on the
statute of limitations.  "In the case now before us there is an
allegation of an act perpetrated in a way that it conceals
itself.  We have a defendant who had an obvious professional,
positive duty to speak if he knew he had negligently left a
foreign object in his patient, we have evidence that he was
informed that the foreign object remained in the patient, and we
have a plaintiff who could not, if the facts were as stated, have
detected the fraud."  Howard, supra.  We emphasized that the
General Assembly, in enacting the Medical Malpractice Act, could
not have intended to allow physicians to avoid responsibility for
negligent acts by knowingly concealing them from patients.  By
contrast, the radiologist who examined the tissue, and who had
noted in her report to the treating physician that she had not
seen the barbed tip of the needle in the tissue sample, was
entitled to summary judgment as the appellant had not come
forward with evidence to counter the radiologist's affidavit that
she did nothing to conceal the fact that an object was left in
the appellant.  
     The doctors in turn emphasize Norris v. Bakker, 320 Ark.
629, 899 S.W.2d 70 (1995), another case where a physician's
patient claimed that fraudulent concealment had tolled the
limitations period on her causes of action.  The patient in
Norris alleged that her dentist had examined her breast under the
pretense of a lymph node examination.  While her complaint was
filed outside of the limitations period, she argued that the
dentist's act was something so furtively planned and secretly
executed so as to keep her cause of action concealed from her
because she lacked the essential medical knowledge to realize
that the touching was not a necessary part of the examination. 
She also alleged that the dentist had a duty to inform her of the
injury inflicted upon her in light of the physician-patient
relationship.
     We affirmed the grant of summary judgment in favor of the
dentist, given that the patient had failed to meet proof with
proof to show that there was a genuine issue of material fact. 
In doing so, we emphasized the so-called "classic language"
regarding fraudulent concealment:
     No mere ignorance on the part of the plaintiff of his
     rights, nor the mere silence of one who is under no
     obligation to speak, will prevent the statute bar. 
     There must be some positive act of fraud, something so
     furtively planned and secretly executed as to keep the  
     plaintiff's cause of action concealed, or perpetrated
     in a way that it conceals itself.  And if the
     plaintiff, by reasonable diligence, might have detected
     the fraud, he is presumed to have had reasonable
     knowledge of it.  Id.  
Id. (quoting Wilson v. GECAL, 311 Ark. 84, 841 S.W.2d 619
(1992)).  In Norris, the patient simply failed to show how her
dentist prevented her from learning that his representation was
false.
     At the outset, we must reject the appellants' contention
that in all informed-consent cases, there will always be genuine
issues of material fact as to fraudulent concealment.  The
appellants assert in their reply briefs that "within the context
of informed consent, fraudulent concealment will always occur
when the evidence indicates that facts important to the
Plaintiff's decision to undergo a particular treatment were
fraudulently withheld, as in this case, from the plaintiff
patient."  While the appellants cite us to jurisdictions that
might appear to go this far, we are unwilling to accept such a
formulation of fraudulent concealment that would effectively
eviscerate the two-year limitations period in all informed-
consent cases.  The Medical Malpractice Act establishes a two-
year limitations period for medical injury, Ark. Code Ann.  16-
114-203(a), contemplates actions for lack of informed consent,
see Ark. Code Ann.  16-114-206(b)(1), and yet does not carve out
an exception to the limitations period in informed-consent cases. 
Appellants' contention ignores the above-quoted "classic
language" regarding fraudulent concealment and in fact
obliterates any distinction between nondisclosure and fraudulent
concealment in claims involving failure to obtain informed
consent.  To equate an alleged breach of a physician's duty to
obtain a valid informed consent with a fact question as to
fraudulent concealment would effectively destroy the limitations
period that begins running from the moment of medical injury.  
     Here we are not concerned with the merits of the appellants'
underlying claims, but instead we address whether their
respective complaints were timely filed.  In this regard,
Trantafello v. Medical Ctr. of Taranza, 227 Cal. Rptr. 84 (Cal.
Dist. Ct. App. 1986) provides us with useful guidance.  In
Trantafello the plaintiff brought a medical malpractice action
alleging that his surgeon had performed a surgical discectomy and
had used a piece of an acrylic substance, methyl methacrylate, as
a spacer in the spine where the disc was removed.  The theory of
the plaintiff's case was that the generally accepted practice in
disc surgery was to implant a bone graft, and that the use of
methyl methacrylate was an innovative procedure not generally
accepted in the United States because of a high probability that
it would not fuse or heal properly and which had a high incidence
of pseudo arthrosis.  The plaintiff alleged that prior to the
surgery, the surgeon did not advise him that he intended to use
methyl methacrylate instead of a bone graft, nor of the
innovative nature and risks of the procedure.
     The plaintiff in Trantafello filed outside of the applicable
limitations period under California law, but claimed that the
limitations period should have been tolled by the defendants'
intentional concealment.  However, the Trantafello court
emphasized that intentional concealment had to be something more
than a mere continuation of the prior nondisclosure.  While the
opinion of the plaintiff's expert raised a factual issue as to
whether the defendant's procedure was innovative, and whether the
defendant was required to advise the plaintiff prior to obtaining
the plaintiff's consent of the innovative nature of the operation
and the available options and dangers involved, "[i]ntentional
concealment is something more than a lack of informed consent. 
It would have to have occurred either at or subsequent to the
time that the medical procedure was undertaken."  Id.  Moreover,
the plaintiff failed to show any issue as to an affirmative
misrepresentation, as "[p]laintiff conceded in his deposition
that [defendant] never told him anything false about the
surgery."  Id.
     In the present cases, we certainly agree that evidence of
affirmative misrepresentations, either in connection with or
subsequent to the appellants' surgeries, may create a fact
question of tolling the limitations period for the jury. 
However, fraudulent concealment must go beyond a mere failure to
obtain an adequate informed consent; it must rise to the level of
"some positive act of fraud, something so furtively planned and
secretly executed as to keep the plaintiff's cause of action
concealed, or perpetrated in a way that it conceals itself."  See
Norris, supra.  Here, we note that Howard, supra, was a decision
based on a foreign-object claim.  The physician there had a duty
to speak because he negligently left a foreign object in the
patient, and there was evidence that the physician knew the
foreign object was left in the patient.  Such is not the case
here, where these appellants knew that they were undergoing neck
surgery requiring the implantation of some material -- either
real bone or some synthetic material.  Another case that bears
mentioning is Roberts v. Francis, 128 F.3d 647 (8th Cir. 1997). 
In Roberts the Eighth Circuit, interpreting Arkansas law,
extended Howard beyond the realm of foreign objects to a case
where the patient, who had her bladder removed to repair severe
urological problems, also had her only remaining ovary removed
without explanation.  Basing its holding on the "special nature
of the doctor-patient relationship," the Roberts court held that
the physician was under a duty to inform the patient that he had
removed her only remaining ovary -- creating a fact question as
to fraudulent concealment.  However, the fact situation presented
in Roberts, where the patient consented to a urological surgery
that resulted in the removal of her ovary without explanation, is
much more like the Howard scenario than the present cases.  The
appellants here consented to neck surgery involving an
implantation, which surgery they received, and the heart of these
cases is whether or not that consent was informed.  To simply say
that in every informed-consent case the "physician maintain[ed]
primary control over the relevant information and the plaintiff
[was] unaware of the alleged wrong," see Roberts, supra, ergo a
fact question exists as to fraudulent concealment, is to do
damage to the General Assembly's expression of public policy as
embodied in the two-year limitations period.
     At the same time, we reject an interpretation of Norris that
would foreclose a patient's ability to establish a fact question
as to fraudulent concealment in all informed-consent cases
involving alleged affirmative misrepresentations by the
physician.  While there is language in Norris that may be taken
to that effect, "[appellant] failed to show how [appellee]
prevented her from learning that his representation was false[,]"
such an interpretation would lead to absurd results.  It is easy
to understand this quoted language based on the facts in Norris,
where a dentist touched the patient's breast under the pretense
of a lymph node examination.  See also Howard, supra (patient in
Norris "knew the act had occurred"); Roberts, supra (describing
the patient in Norris as "simply ignorant of her rights").   
     Obviously, an affirmative misrepresentation by a physician
in connection with or after the surgery may operate to conceal
the patient's cause of action.  See Jones v. Central Ark.
Radiation Therapy Institute, Inc., 270 Ark. 988, 607 S.W.2d 334
(1980) (physician's representation concerning the uncertainty
about the cause of plaintiffs' condition following medical injury
and subsequent and purposeful dilatory conduct "cover[ed] up its
fraudulent character and prevent[ed] plaintiff from seeing
another doctor.  But for this fraud, [the plaintiff] could have
discovered the alleged malpractice before the statute of
limitations ran.")  To hold otherwise would necessarily foster an
environment of complete distrust between patient and physician. 
Such a consequence could not have been intended by the General
Assembly in enacting the two-year limitations period.       
     To the extent that there is evidence that the doctors'
alleged omissions or misrepresentations resulted in a surgery
performed without an adequate informed consent, this obviously
goes to the merits of appellants' claims.  However, in examining
whether appellants' complaints were timely filed, we reiterate
that we do not simply equate evidence of a breach of the duty to
obtain informed consent with a fact question as to fraudulent
concealment.  There must be something more than a continuation of
a prior nondisclosure.  Rather, there must be evidence creating a
fact question as to "some positive act of fraud, something so
furtively planned and secretly executed as to keep the
plaintiff's cause of action concealed, or perpetrated in a way
that it conceals itself."  See Norris, supra.  Finally, we must
be mindful that an allegation of fraudulent concealment is not
typically well-suited for summary judgment, unless the evidence
leaves no room for a reasonable difference of opinion.  See
O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997); Chalmers
v. Toyota Motor Sales, 326 Ark. 895, 935 S.W.2d 258 (1996). 
Bearing these principles in mind, we now turn to the proof
submitted in these cases as abstracted.  
          1.  Jerry Adams, No. 96-1350; Randy and Stewart and
          Deondra Stewart, No. 96-1405; Orville Beavers and Mary
          Beavers, No. 96-1470.

     The evidence submitted by the various appellants in response
to the appellees' motions for summary judgment, including that
which is abstracted, is not completely identical.  In the three
cases where AMI was named as a defendant, Adams, No. 96-1350,
Stewart, No. 96-1405, and Beavers, No. 96-1470, the appellants
submitted the same exhibits except for portions of the
appellants' affidavits.  Deposition testimony from Dr. Arthur
established that Orthoblock had not been approved by the FDA for
use in the human spine.  Arthur also  acknowledged that the long-
term effects of the Orthoblock regarding such uses were not yet
known.  David Gassier opined in deposition testimony that he
lacked sufficient data to give an opinion as a scientist as to
whether hydroxylapatite could withstand the forces of the human
spine "based solely upon this one article."    
     Use in the human spine was not an indicated use on the
package insert that accompanied Orthoblock.  A "contraindication"
was that Orthoblocks should not be used where they would likely
sustain significant tensile, flexural or shear forces.  In
answers to interrogatories, AMI contended that Arthur never
sought specific  approval of any hospital committee with respect
to the use of Orthoblocks in cervical fusions, and that Arthur
never informed it of such use.  Once AMI became aware of the
filing of "this lawsuit," it had not used or ordered Orthoblocks. 
A "Conditions of Admission" is abstracted to show the "Financial
Agreement" between the patient and the hospital.  
     Arthur reported to Calcitek that he had very few fractures
with Orthoblock, although Gocio had experienced a fracture rate
of about 50%.  Arthur attributed the higher rate to the force
that Gocio used in tapping the Orthoblock into place.  In a
letter dated March 29, 1991, a Dr. Lawrence from the University
of Marshall of San Diego informed Calcitek that he consecutively
had two Orthoblocks fracture, causing him to express concern
about the viability of Orthoblock.  A Calcitek invoice to AMI,
dated July 24, 1992, showed two separate quantities of
Orthoblock, seven A-6, and three A-8, billed at $150 a unit.  
     A St. Joseph's "Product Return Receipt" dated April 5, 1991,
explained that a "block broke off during surgery.  No pressure
[illegible] drills used according to OR.  Credit on arrival
please."  An internal Calcitek complaint evaluation memo dated
June 28, 1991, regarding the St. Joseph's complaint, resulted in
the discovery that Orthoblock was used in an anterior cervical
discectomy procedure.  The block was tamped using a metal tool
directly against the block.   The memo further explains that
Orthoblocks are not designed to withstand contact with metal
tools.  Calcitek sent Arthur and Gocio Custom Device Agreements
in order to continue use of Orthoblocks in their practices. 
Custom seating tools had also been provided to assist them in
placement of Orthoblock without using metal tools.
     The appellants in all twelve cases submitted affidavits. 
These affidavits identify the following as a partial list of
facts that "were never disclosed to me by Arthur, Gocio, the
hospital, or anyone else prior to my surgery.  Had these facts
been disclosed to me, I would not have allowed the surgery to be
performed with the product known by the tradename Orthoblock:"
     --  That he had experienced fractures with the product
     Orthoblock in other patients.

     -- That the product Orthoblock was not FDA approved for
     use in human spines.

     -- That the product Orthoblock was not designed by the
     manufacturer for use in human spines.

     -- That the package insert that came with the product
     indicated that it was not designed for use in
     applications where it would undergo significant
     flexural, tensile, or sheer forces.  These forces, of
     course, describe the types of movements and stresses
     that are in the spine.

     -- That the use of the product Orthoblock in the human
     spine was experimental.

     -- That the hospital's institutional review board that
     is charged with the review of such procedures had not
     reviewed or approved the use of the product Orthoblock
     in the spine.

     --  That Dr. Arthur had only reviewed one article and
     discussed the use of the material known as Orthoblock
     with a dentist to determine whether it was safe for use
     in the spine.  He did not tell me that the professional
     review at the end of that one article he had read
     called for more study before this product was used in
     the human spine.  

     --  That prior tests performed by the manufacturer with
     this material on mongrel dogs indicated that the
     material used in the product Orthoblock was not
     appropriate for use in the spine.

     --  That dense hydroxylapatite, a ceramic material from
     which the product Orthoblock is composed, is more
     brittle than bone.

     --  That bone will not grow into or through this
     product as it will with bone taken from a patient's own
     body or bone that is donated for this purpose.  I was
     not told, that, at best, this material will only act as
     a "spacer."  I was not told that this procedure using
     the product Orthoblock was not the normal and customary
     material used in the anterior cervical fusion
     procedure.

     -- That there was a risk of fracture of the ceramic
     material known as Orthoblock.

     -- That if the product Orthoblock fractured, I would
     have to undergo another surgery.

     -- That neither Dr. Arthur nor Dr. Gocio had ever
     discussed the use of product Orthoblock with any other
     doctor who had experience using it in the human spine
     to determine whether it was safe or how it could be
     used.

     -- That I was not subsequently advised that Gocio or
     Arthur had to sign a "custom device agreement," a
     document acknowledging that the product Orthoblock was
     not designed for use in the spine and requiring them to
     make assurance that patients were aware of this fact
     and obtain from them their informed consent before the
     material was used, to be able to purchase and use the
     product known as Orthoblock.

     -- That he did not tell me that he had subsequently
     signed an agreement with the manufacturer of the
     product to keep secret the information he had regarding
     the development of this product for use in the human
     spine.

     -- That the manufacturer had not included in its
     application to the FDA to market the product Orthoblock
     a request for permission to promote them for use in the
     spine.

     -- That other patients had the product fail resulting
     in fractures of the ceramic material.

     -- That other patients, after implementation of the
     product Orthoblock, continued to experience, among
     other problems, arm pain, shoulder pain, neck pain, arm
     and hand numbness, and severe, frequent headaches.

     -- That other patients, after implantation of the
     product Orthoblock, had experienced a sensation of
     having difficulty swallowing.

     -- That he did not know or have a basis for knowing the
     long term [e]ffect of the product's use in the human
     spine.

Finally, the appellants' affidavits also contain statements that
are unique to each case.  
               a.  Jerry Adams, No. 96-1350.
     In his affidavit, Adams stated that on March 8, 1990, Dr.
Arthur, assisted by Dr. Gocio, performed the surgery on his neck. 
Adams filed his complaint on March 31, 1993.  Prior to his
surgery, he had met with Dr. Arthur to discuss the procedure. 
Adams had assumed that bone from his hip would be used, since
bone from his hip was used in his last surgery.  Dr. Arthur did
not disclose to Adams that he was going to use Orthoblock in his
surgery.  The day after the surgery, Adams recognized that he had
no incision on his hip.  At his first office visit with Dr.
Arthur, he asked him about this.  Dr. Arthur showed him an x-ray,
which revealed the Orthoblock.  Dr. Arthur explained that this
was a manmade material, made in England, and that it had the
texture of a tennis shoe.  He further stated that he had not had
any slip and had not had any other problems with an Orthoblock. 
He additionally said that the Orthoblock had small holes that
allowed it to fuse with bone.
     This evidence does raise a factual issue as to whether the
procedure was innovative and experimental, and whether Drs.
Arthur and Gocio were required to advise Adams prior to obtaining
his consent, "of the innovative nature of the operation and the
available options and dangers involved."  See Trantafello, supra
at 87.  However, we are unable to say that the doctors' alleged
omissions in failing to so inform Adams, or the character of the
representations the doctors actually made, rise to the level of
"some positive act of fraud, something so furtively planned and
secretly executed as to keep the plaintiff's cause of action
concealed, or perpetrated in a way that it conceals itself."  See
Norris, supra.  Significantly, Arthur made no representations as
to what sort of material would be used in the surgery.  Adams
later acquired knowledge that Orthoblock was used on the first
office visit following surgery.  While some of Arthur's
statements were arguably misrepresentations about efficacy, i.e.,
"he told me. . .that he had not had any slip and had not had any
other problems with an Orthoblock," it "fuse[d] with bone," these
statements  do not rise to the level of affirmative
representations sufficient to create a fact question as to
fraudulent concealment.  Based on the evidence submitted in the
Adams case, we conclude that there exists no fact question as to
fraudulent concealment, and affirm the grant of summary judgment
to the appellee doctors.
               b.  Randy Stewart and Deondra Stewart, No. 96-
               1405.

     On May 24, 1990, Arthur, assisted by Gocio, performed a
surgical procedure on Randy Stewart's neck.  Stewart filed his
complaint on March 11, 1993.  Prior to surgery, he met with Gocio
to discuss the procedure.  Gocio told him that rather than use
bone from his hip, he would use an artificial bone, which was
growing in his laboratory.  Stewart was on pain medication at the
time, and was not given any other options nor was anything else
explained to him about the material.
     Here we have a different representation than that made in
the Adams case.  Gocio allegedly told Stewart that he would use
an "artificial bone" growing in his lab.  We hold that this
affirmative statement, an arguable misrepresentation as to the
nature of the material to be used in the surgery, is at least
sufficient to create a fact question as to fraudulent
concealment.  This constitutes proof leaving room for a
reasonable difference of opinion as to whether the Stewarts'
causes of action were fraudulently concealed.  The summary
judgment to the appellee doctors is reversed in the Stewart case
and the case is remanded for further proceedings consistent with
this opinion.
              c.  Orville Beavers and Mary Beavers, No. 96-1470.
     On December 11, 1989, Arthur performed a surgery on Orville
Beavers's neck, and his complaint was filed on February 12, 1993. 
Prior to the surgery, he met with Arthur to discuss the
procedure.  Arthur told him that he would use bone from the bone
bank.  His wife had this surgery before and they used a hip bone. 
No options were offered to him and he was simply told that Arthur
would use a bone from the bone bank.  Arthur did not advise him
of any risk.  He did not learn that he had Orthoblock in his neck
until after he saw a newspaper article in January of 1993, and he
obtained his medical records.
     Here, Orville Beavers alleged that Arthur told him that he
would use bone from the bone bank in his surgery.  This is
evidence of an affirmative act that would have prevented Beavers
from learning the actual nature of the material used in his
surgery.  We, therefore, hold that this alleged misrepresentation
is sufficient to create a fact question as to fraudulent
concealment.  Accordingly, we reverse the grant of summary
judgment to the appellee doctors in the Beavers case, and remand
for further proceedings consistent with this opinion.
         2.  Deborah Ann Johnson and John Johnson, No. 96-1355;
          Kenneth Mitchell and Jan Mitchell, No. 96-1406;
          Patricia Foshee and Carl Foshee, No. 96-1407; Carl and
          Priscilla Rae, No. 96-1408; Sheila Orrell and Tommy
          Orrell, No. 96-1409; Ludivinia Gallegos Miller, No. 96-
          1414; Phyllis Dexter, No. 96-1415.  

     In addition to the evidence set forth above, appellants in
these St. Joseph's cases submitted supplemental items of evidence
in response to the appellees' motions for summary judgment.  This
included deposition testimony from Gayle Sanders, a nurse at St.
Joseph's.  According to Sanders, Arthur told her that St.
Joseph's was going to be using Orthoblock as one of several
hospitals around the United States that would be trying
Orthoblock.  At the time, she knew that Orthoblock had been
approved by the FDA for use in dental applications, but that it
had not been approved for use in the spine.  She did not have any
conversations with anyone about this non-approval because "it was
something we were already doing.  It was just a new technique,
and I didn't feel it was necessary."  Sanders told her charge
nurse to order the Orthoblock, telling her that it was a new
product that they would be using.  To her knowledge, Orthoblocks
were not taken to the hospital's human subjects committee or
institutional review board for purposes of use in the spine.  She
further explained that she was never present when Arthur or Gocio
talked to a patient about using Orthoblock because it was done
prior to surgery.  At one time, the maintenance department
revised an instrument to make it blunt for use with the
Orthoblock.  She also recalled that at one time Calcitek
representatives came down to observe an Orthoblock surgery. 
Since the first lawsuit was filed, she was informed to bring the
Orthoblock out of the operating room.  Since then, it had not
been ordered.
     A St. Joseph's memo dated February 8, 1993, set forth the
approval process for submission of a research protocol to St.
Joseph's Institutional Review Board ("IRB").  All proposals for
research involving human subjects at St. Joseph's were required
to be submitted to the IRB for review pursuant to Department of
Health and Human Services regulations.  This included research
involving medical devices for non-approved applications.  St.
Joseph's business minutes, dated May 15, 1990, state that a
conference call was conducted by the Institutional Review
Committee at St. Joseph's Regional Health Center/ AMI National
Medical Center.  This included approval for a protocol and
informed consent regarding clinical evaluation of a "HAP Porous
BiMetric Hip System" to be used in an investigational hip
prothesis study.  A December 13 1991, St. Joseph's bill to a
patient named John Hall included a charge for an Orthoblock at
the price of $304.25.
     Terri Baker, Calcitek's director of marketing, wrote a
letter dated April 17, 1991, to Arthur and Gocio following her
observation of a surgery.  The letter explains that Calcitek had
discussed with its engineers about a tap for use with the block. 
"We do have some preliminary ideas and should be able to get a
prototype to you in the next thirty days.  We will include the
plastic tip!  This should reduce the number of cracked blocks."
     Arthur and Gocio also executed confidentiality agreements
with Calcitek on April 8, 1991, abstracted as follows:
     All information of a technical nature imparted to or
     learned by me during the course of my association with
     the company with respect to the business of the Company
     including but not limited to formulas, patterns,
     devices, processes, compilations of information,
     specifications, research and development, and
     inventions, improvements, and discoveries within the
     scope of paragraph 1, shall be deemed confidential and
     shall not be disclosed by me to anyone outside the
     employ of the Company unless such information has been
     generally available to the trade.

Because federal law prohibited Calcitek from promoting uses other
than those indicated, Calcitek had the doctors execute "custom
device agreements" so that pursuant to federal law, Calcitek
could provide Orthoblocks to individual doctors using them in
anterior cervical discectomy procedures on a custom basis. 
Arthur and Gocio executed this form, which contained an
acknowledgment that the doctors would "adequately inform the
patient prior to use of this CUSTOM DEVICE."
     The appellants also attached as exhibits some hand-written
notes from someone at Calcitek regarding a conversation with
Gocio.  Among other things, the notes provide that "Using
Orthoblocks ~ 1 yr.; 3-5/ week; No mods used - has had fractures;
Spreads vertebrae far enough to drop implant into place; no
tapping (fear of fractures)."  Other notes regarding a phone
interview with Gocio indicate that he "had a lot of shatter prior
to learning how to use."
     These appellants also submitted affidavits from two experts,
Dr. Robert North, and Claudia Jean Beverly, regarding St.
Joseph's failure to meet the appropriate standards of care for
usage of Orthoblock at the hospital.  Beyond the common
allegations in the appellants' affidavits already set forth
above, these appellants also made individual allegations
concerning their respective surgeries.
               a.  Deborah Ann Johnson and John Johnson, No. 96-
               1355. 

     On January 8, 1991, Arthur, assisted by Gocio, performed a
surgical procedure on Deborah Johnson's neck.  Johnson's
complaint was filed on June 8, 1993.  Prior to the operation, she
met with Arthur at the hospital to discuss the procedure.  Arthur
told her that he would use a synthetic material from Switzerland
as a graft material in her neck.  He told her that after he put
it in, everything would grow together.  Arthur did not give her
any choice but to use this material, and she was not advised or
aware that she had any other options.  Arthur told her that he
had not had any problems with the material from Switzerland.
     As in the Adams case, we affirm in the Johnson case because
of the lack of evidence of positive acts of fraudulent
concealment on the part of the doctors.  Again, the additional
evidence in this St. Joseph's case undoubtedly raises a factual
issue as to the experimental nature of Orthoblock.  However, as
in the Adams case, this goes to the merits of the informed-
consent claims, and does not rise to the level of fraudulent
concealment.  We are unable to say that the representations
allegedly made by the doctors establish a fact question as to
fraudulent concealment.  With regard to the confidentiality
agreements signed by the doctors, we note that these agreements
were executed several months after all of the surgeries in these
cases.  In most of these cases it was over a year after the
surgery.  The record indicates that these agreements were
obtained at Calcitek's initiative so that it could gather data
for Orthoblock's use in the spine, and so that it could discuss
product-development information with the doctors.  Moreover, the
custom device agreements, also obtained at Calcitek's initiative,
required the doctors to adequately inform patients prior to using
Orthoblock.  While Johnson's surgery was relatively close in time
to the execution of the confidentiality agreement, she was
advised that a synthetic material would be used in her neck. 
               b.  Jan Mitchell and Kenneth Mitchell, No. 96-
               1406.

     On March 13, 1990, Arthur performed a surgical procedure on
Jan Mitchell's neck.  Mitchell's complaint was filed on September
23, 1993.  Prior to the surgery, she had a telephone conversation
with Arthur to discuss the procedure.  Arthur simply told her
that she had a ruptured disc, and that she needed surgery.  He
did not tell her anything about the surgery or what he might use
as a graft material.  Her sister-in-law had previously had
surgery performed by Arthur and in that surgery, he had used bone
from the bone bank and Mitchell assumed that he would use bone
from the bone bank in her surgery.  She did not learn until after
August 1993, when she became aware that other lawsuits had been
filed and she then obtained her medical records, that Orthoblock
had been used in her surgery.
     We affirm the grant of summary judgment for the reasons
stated in the Johnson case.  However, it is noteworthy that in
Mitchell's affidavit, Mitchell assumed bone from the bone bank
would be used in her surgery, but the doctors in fact made no
representations as to what material would be used.  Thus, beyond
the failure to inform, or a mere continuation of this
nondisclosure, there must have been something more in order to
create a fact question as to fraudulent concealment.  See
Trantafello, supra.  

               c.  Patricia Foshee and Carl Foshee, No. 96-1407;
               Carl Rae and Priscilla Rae, No. 96-1408; Sheila
               Orrell and Tommy Orrell, No. 96-1409; Ludivinia
               Gallegos Miller, No. 96-1414; Phyllis Dexter, No.
               96-1415.

     Arthur performed an operation on Patricia Foshee's neck on
April 19, 1990.  Her complaint was filed on February 12, 1993. 
Prior to this surgery, she met with Arthur to discuss the
procedure.  Arthur told her that he would use a synthetic disc in
her neck.  No options were offered to her and she was simply told
that Arthur would use this new material and that it would fuse
with bone.
     On November 15, 1989, Arthur performed a surgical
procedure on Carl Rae's neck.  Rae's complaint was filed on April
5, 1993.  Prior to the procedure, he met with Arthur.  Arthur
told him that he would use a synthetic disc so that he would not
have to have two operations.  Arthur told him that this was an
all-new material and that it worked good, and that he had not had
any problems with it.  Arthur told him nothing else about this
material.
     On December 26, 1989, Arthur performed a surgical procedure
on Sheila Orrell's neck.  She filed her complaint on May 20,
1993.  Prior to this surgery, she met with Arthur to discuss the
procedure.  He told her that he would go in the crease of her
neck and would put in a plastic disc, which would give way with
her other disc.  She thought that this was something like a piece
of plastic foam the way that Arthur described it.  She had the
impression that it was flexible.  He did not tell her what the
substance was, or whether it was new and she was not given any
options and was not aware of any other options.
     On November 28, 1989, Arthur performed a surgical
procedure on Miller's neck.  Miller filed her complaint on
January 28, 1993.  Prior to that surgery, she met with Arthur to
discuss the procedure,  Arthur told her that he would use a
synthetic disc in her neck.  No options were offered to her and
she was simply told that the new material would fuse with bone.
     On February 22, 1990, Arthur performed a surgical
procedure on Dexter's neck.  Her complaint was filed on June 17,
1993.  Prior to the surgery, she met with Arthur to discuss the
procedure.  Arthur told her that he was going to use a new,
synthetic hip bone.  He did not explain anything else to her
about the material, did not give her any options, and did not
advise her of any risk.
     In these cases, we reverse the grant of summary judgment to
the appellee doctors and remand for further proceedings
consistent with this opinion.  The crucial allegations in these
cases are the doctors' alleged representations concerning
"synthetic discs" and an "artificial hip bone."  A reasonable
inference from these alleged statements concerning the nature of
the material to be used is that the material was appropriate for
use in the spine.  Thus, these representations at a minimum
create a fact question as to fraudulent concealment.   
          3.  Darlene Kinder and Eddie Kinder, No. 96-1354; David
          Trusty and Pam Trusty, No. 96-1365.

     The Kinder and Trusty cases are unique in that neither
appellants' abstract contains the various exhibits that have been
set forth above.  In both of these cases the appellants only
evidentiary responses to the appellees' motions for summary
judgment were their own affidavits. 
               a.  Darlene Kinder and Eddie Kinder, No. 96-1354.
     According to Darlene Kinder's affidavit, Gocio operated on
her neck on February 21, 1991.  She filed her complaint on May
20, 1993.  Prior to the surgery, Kinder met with Gocio to discuss
the procedure.  He stated that he had been having trouble with
grafts from the hip holding up and would use a synthetic fiber. 
She asked if it was experimental and he assured her that this was
not experimental and that they were having good results with
arthritic patients.  Gocio did not give her any other options and
she trusted him to make the right decision.  Gocio stated that
this material would fuse better than bone from the bone bank or
hip bone.
     We reverse the grant of summary judgment to the doctors in
the Kinder case.  While Kinder had knowledge that a "synthetic
fiber" would be used in her neck, Gocio allegedly told her that
this material was "not experimental."  Unlike the prior
representations about efficacy set forth above, we hold that this
representation creates a fact question as to fraudulent
concealment.  The alleged representation that the material was
"not experimental" goes beyond a mere opinion as to Orthoblock's
efficacy, e.g., they had "good results," and is arguably a false
representation concerning the surgery.  Accordingly, we reverse
and remand for further proceedings consistent with this opinion
in the Kinder case.
               b.  David Trusty and Pam Trusty, No. 96-1365.
     On January 23, 1990, Gocio performed a surgery on David
Trusty's neck.  Trusty filed his complaint on February 12, 1993. 
Prior to this surgery, Trusty met with Gocio at the hospital and
discussed the procedure.  Trusty was aware of the possibility of
using, as a graft material in his neck, bone from the bone bank
as opposed to hip bone.  These were the two options which Trusty
understood he had.  Trusty asked Gocio if he would use bone from
the bone bank, as he did not want a separate incision on his hip. 
Gocio informed him that he would not use bone from the bone bank,
but that he would perform a new procedure using a synthetic
material.  He did not identify the material by name, nor did he
describe what it was made of.  Gocio told him that he had been
quite successful using the new material.  Trusty was not given a
choice about the use of materials, even though he wanted bone
from the bone bank and he was not told of any risks in using the
synthetic material.  
     Following the surgery, he visited Gocio's office on February
26, 1990.  Gocio examined an x-ray and told him that everything
looked fine.  In fact, the Orthoblock he had inserted had already
fractured.  At no time, even after he terminated his care with
Gocio on September 17, 1990, was he told that the Orthoblock was
fractured.
     In the Trusty case, we reverse the grant of summary judgment
to the appellee doctors, and remand for further proceedings
consistent with this opinion.  According to Trusty's affidavit,
he went to Gocio's office for an x-ray.  While Trusty alleged
that his Orthoblock had already fractured, Gocio purportedly
examined his x-ray and told him that everything "looked fine." 
Based on this evidence, we conclude that there exist genuine
issues of material fact as to whether the doctors fraudulently
concealed the Trustys' causes of action.  See Jones v. Central
Ark. Radiation Therapy, supra.
          4.  Conclusion Summary -- Appellee Doctors.
     In conclusion, we emphasize that we do not equate a claim
based on lack of informed consent with fraudulent concealment. 
We are concerned only with the timeliness of these causes of
action, not their merits.  There must be something more than
nondisclosure, or a continuation of that nondisclosure, to toll
the limitations period.  However, at this stage of the
proceedings, we are only asked to determine whether there exist
genuine issues of material fact as to fraudulent concealment,
keeping in mind that fraudulent concealment is better-suited as a
question of fact for the jury, unless the evidence leaves no room
for a reasonable difference of opinion.
     We reject appellants' contention that the failure of the
doctors to inform them of the experimental nature of the
Orthoblock constitutes fraudulent concealment.  While the bulk of
the evidence in these cases obviously raises a factual issue as
to whether the doctors should have so informed the appellants,
this goes to the merits of the underlying claims, and not
fraudulent concealment.  Such is the case in Mitchell, where
Arthur allegedly made no representations to the appellant there. 
In looking for something more in the way of affirmative
representations, we note that in some cases the doctors allegedly
made representations that may be categorized as opinions
concerning the efficacy of the material to be used in the
surgeries; e.g.," he had not had any slip", "had not had any
other problems with an Orthoblock," the Orthoblock "fuse[d] with
bone," "everything would grow together," and "he had not had any
problems with the material."  This evidence viewed in a light
most favorable to appellants, does not create a fact question as
to fraudulent concealment.  However, as an example of an
affirmative representation concerning efficacy that crosses the
line leaving room for a reasonable difference of opinion is the
alleged statement in the Kinder case that the material was "not
experimental."
     The other broad category of statements allegedly
attributable to the doctors concerns the nature of the material
to be used.  In some instances, these representations do not
create a fact question as to fraudulent concealment, e.g.,
"manmade material" and  "synthetic material."  However, in other
cases, "synthetic disc," "plastic disc," and "synthetic hip
bone," the references to "disc" and "bone", arguably give rise to
an inference regarding the appropriateness of the material's use
in the human spine, and, thus, create questions of fact as to
fraudulent concealment.
     B.  Appellee Hospitals.
     With regard to fraudulent concealment, all appellants make
the same arguments against the hospitals as they do with the
doctors.  We reject these arguments as to the appellee hospitals
in all cases.  First, it is unclear whether the appellants have
even sufficiently pleaded fraudulent concealment against the
hospitals.  At least in the St. Joseph's cases, the plaintiff's
affidavits responding to the hospital's motions for summary
judgment stated as follows:
     --  [Hospital] had made no inquiry into the safety of
     the product orthoblock for use in human spines prior to
     allowing Arthur and Gocio to perform their first
     orthoblock surgery, or any time thereafter;

     --  That [hospital] knew before Arthur and Gocio
     performed their very first orthoblock surgery that the
     patients would be experimented upon with a non-FDA
     approved product;

     -- That [hospital] made no inquiry and had no
     information regarding the long-term effect of
     orthoblocks in the spines of humans and had they
     inquired of the manufacturer they would have learned
     that during the entire time Arthur and Gocio performed
     orthoblock surgery, the manufacturer had no scientific
     basis to support the use of orthoblock in the spines of
     human beings;

     -- that [hospital] had developed no protocol to insure
     the patients were adequately informed of the risks
     involved in participating in an experiment with a
     product not approved by the FDA for spinal surgery;

     -- that [hospital] knew from the very beginning that
     orthoblocks were not designed for use in application
     where it would undergo significant flexural, tensile or
     sheer forces, the very forces that are in the spine.

These allegations, as well as their experts' affidavits, go to
the merits of appellants' underlying claims against the
hospitals, i.e., the breach of the hospitals' duty of care owed
to appellants.  Indeed, an implicit facet of the appellants'
fraudulent-concealment claims against the hospitals is that the
hospitals owed them a duty to obtain their informed consent, a
contention which the hospitals deny.  We need not decide this
issue.  As we have already stated, failure to obtain informed
consent does not equate to fraudulent concealment.  To the extent
that the hospitals may have owed the appellants such a duty, we
would affirm as to the hospitals for the same reasons we
expressed as to the doctors in the Mitchell case above.  While
there is evidence that the hospitals knew or should have known of
the doctors' use of Orthoblock and its experimental nature
(perhaps more so in the St. Joseph's cases than in the AMI
cases), evidence of affirmative conduct on the part of the
hospitals to conceal the appellants' causes of action is lacking. 
Even in the cases where we reverse as to the doctor appellees, we
do so because of conduct on the part of the doctors evincing fact
questions as to fraudulent concealment.  During oral argument,
counsel for appellants conceded that he was not proceeding
against the hospitals on a theory of vicarious liability.  There
being no reason to impute this conduct to the hospitals, we
reject the appellants' fraudulent-concealment argument as to the
hospitals in the cases where we reverse as to the doctors.   
                  II. Product-Liability Claims.
     The appellants next argue that the trial court erred in
declining to find that the hospitals could be strictly liable as
suppliers of the Orthoblock.  The premise of their argument is
that our Product Liability Act and our Strict Liability Act
expose a larger class of defendants to liability than does
Section 402A of the Restatement (Second) of Torts.  Before
addressing this issue, we deal with a mootness issue raised by
the hospitals.
     A.  Mootness.
     Both hospitals contend that any viable strict liability
claims against them are moot due to the appellants' settlement
with Calcitek.  In support of this argument they primarily rely
on Sochanski v. Sears, Roebuck & Co., 689 F.2d 45 (3d Cir. 1982). 
In Sochanski the court drew a distinction between primary and
secondary liability in product-liability claims.  The appellant
there executed a release in favor of the manufacturer of a
defective tire, the party primarily liable.  However, the seller
had only acted as a "conduit" between the manufacturer and the
purchaser, and was thus only secondarily liable.  "Consequently,
[the seller's] liability for any misfeasance on [the
manufacturer's] part is discharged by the release in favor of
[the manufacturer]."  Id.  The hospitals also highlight the
indemnification provision of the Product Liability Act, which
gives the supplier of a defective product a claim for
indemnification against the product's manufacturer.  See Ark.
Code Ann.  16-116-107 (1987).
     We decline to hold that the appellants' product-liability
claims against the hospitals are moot in these cases.  The orders
of dismissal with Calcitek in these records show only that "the
matter has been compromised and settled, the above-styled cause
against Defendant Calcitek, Inc. is hereby dismissed with
prejudice."  However, we do not have the benefit of any release
between the appellants and Calcitek, and we would be left to
speculate as to the terms of that release, as well as the
potential viability of cross-claims between the parties.
     B.  Statute of Limitations.
     While we do not hold that the appellants' product-liability
claims against the hospitals are moot, we nonetheless affirm the
grant of summary judgment in favor of the hospitals.  In doing
so, we do not decide whether a hospital, under these facts, may
be strictly liable as a supplier.  To the extent that these
appellants have viable product-liability claims against the
hospitals, they are all barred by the applicable limitations
period found in the Medical Malpractice Act.
     The Product Liability Act establishes a three-year statute
of limitations, "All product liability actions shall be commenced
within three (3) years after the date on which the death, injury,
or damage complained of occurs." Ark. Code Ann.  16-116-103.  A
"product liability action" "includes all actions brought for or
on account of personal injury, death, or property damage caused
by, or resulting from, the manufacture, construction, design,
formula, preparation, assembly, testing, service, warning,
instruction, marketing, packaging, or labeling, of any
product[.]"  Ark. Code Ann.  16-116-102(5).  
     By contrast, the Medical Malpractice Act's limitations
period provides in part "that all actions for medical injury
shall be commenced within two (2) years after the cause of action
accrues."  An "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).  Furthermore, "medical 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."  Ark. Code Ann.  16-114-201(3).  
     In exploring the plain language of both Acts, there is
obviously a potential conflict lurking with regard to the
limitations period for an action otherwise falling within the
scope of the Product Liability Act, yet involving an allegedly
defective product that is supplied by a medical care provider in
the course of rendering professional services.  This is due to
the Medical Malpractice Act's broadly inclusive language used in
defining an action for medical injury, which includes any action
against a medical care provider to recover damages on account of
medical injury "whether based in tort, contract, or otherwise[.]" 
See Ark. Code Ann.  16-114-201(1).  The definition of "medical
injury" is similarly inclusive, encompassing adverse consequences
arising out of the rendition of professional services whether in
"breach of warranty. . . or otherwise arising out of or sustained
in the course of such services."  See Ark. Code Ann. 
16-114-201(3).  In the present cases, where the appellants
attempt to hold the hospitals liable for adverse consequences
arising from an allegedly defective product supplied in the
course of rendering a surgical procedure, the appellants' alleged
injuries fall within the definition of medical injury, and the
appellants' cause of action based on strict or product liability
is an action for medical injury as that term is used in the
Medical Malpractice Act.  Cf. Burris v. Hospital Corp. of
America, 773 S.W.2d 932 (Tenn Ct. App. 1989) (product-liability
action against hospital governed by statute of limitations for
"medical malpractice action" when such action included "an action
for death resulting from malpractice by a health care provider. .
. whether based upon tort or contract law." -- "Any ground which
a plaintiff might state for recovery of civil damages must fall
into one of the categories, contract or tort.").  Thus, the
conflict between the two statutes of limitations is readily
apparent in these cases.
     This is not the first time that this court has been
confronted with conflicting statutes of limitations in
interpreting the Medical Malpractice Act.  In Hertlein v. St.
Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996),
this court held that the Medical Malpractice Act's two-year
limitations period governed a wrongful-death action, despite the
longer limitations period generally applicable to wrongful-death
actions.  Compare with McQuay v. Guntharp, 331 Ark. 466, ___
S.W.2d ___ (1998) (declining to reach merits of whether Medical
Malpractice Act's two-year limitations period applied to outrage
claim against a physician -- appellant failed to obtain a ruling
on this issue at the trial court level).  The rationale behind
the Hertlein decision was the general repealer clause contained
in the Medical Malpractice Act, Act 709 of 1979.  We noted that
the 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." 
Hertlein, supra (quoting Ark. Code Ann.  16-114-202 (1987)
(emphasis in original)).
     Here, the statute of limitations found in the Medical
Malpractice Act conflicts with that found in the Product
Liability Act, and for that matter, the same limitations period
applicable to claims brought pursuant to the Strict Liability
Act.  See Harris v. Standardized San. Sys., 658 F. Supp. 438
(W.D. Ark. 1987) (acknowledging that Strict Liability Act omits
specific limitations period but applied three-year period found
in Product Liability Act), rev'd on other grounds, 856 F.2d 64
(8th Cir. 1988).  In resolving the conflict, we hold that the
two-year limitations period found in the Medical Malpractice Act
supersedes that found in the Product Liability Act.
     We are not unmindful of the fact that the Product Liability
Act, Act 511 of 1979, and the Medical Malpractice Act, Act 709 of
1979, were enacted in the same legislative session, and that such
an implied repealer is not favored.  See generally 1A Sutherland
Statutory Construction  23.17 (5th ed. 1993); see also Matthews
v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485
(1968) (policy is to use longer limitations period where the
issue is "doubtful").  However, the Medical Malpractice Act, as
the latter enactment within the session, may be seen as the
prevailing expression of legislative intent.  See Williams v.
State, 215 Ark. 757, 223 S.W.2d 190 (1949) ("As between two acts,
it has been held that one passed later and going into effect
earlier will prevail over one passed earlier and going into
effect later."); but see Citizens to Establish a Reform Party v.
Priest, 325 Ark. 257, 926 S.W.2d 432 (1996) ("Where Acts passed
at the same session contain conflicting clauses, the whole record
of legislation will be examined to ascertain the Legislative
intent, and such intent, if ascertained, will be given effect,
regardless of priority of enactment."); Horn v. White, 225 Ark.
540, 284 S.W.2d 122 (1955) (declining to mechanically apply "last
passed" rule).  For these reasons, and in light of the all-
inclusive language used by the General Assembly in defining an
action for medical injury to encompass those actions "whether
based in tort, contract, or otherwise", we conclude that the
Medical Malpractice Act's two-year statute of limitations governs
the appellants' product-liability claims brought against the
hospitals.  Accordingly, the trial court did not err in granting
summary judgment to the appellee hospitals on the appellants'
product-liability claims.
     In so holding, we are also cognizant of Spickes v.
Medtronic, 275 Ark. 421, 631 S.W.2d 5 (1982), where this court
applied the Product Liability Act's three-year statute of
limitations in the context of a product-liability claim brought
against the manufacturer of a pacemaker as well as the "hospital
through which the device was sold[.]"  Id.  However, Spickes
presented no issue as to whether the Medical Malpractice Act's
two-year statute would otherwise govern.  Therefore, Spickes is
not dispositive here.
III.  Constitutionality of the Medical Malpractice Act's
Limitation Period.

     The appellants' final point on appeal concerns the
constitutionality of the Medical Malpractice Act's statute of
limitations, Ark. Code Ann.  16-114-203.  They argue that
section 16-114-203 is a statute of repose which is violative of
the Arkansas Constitution's guarantees of equal protection of the
laws and their rights to a jury trial and redress of wrongs.  The
appellants also contend that the statute's exception to the
general two-year statute of limitations based on foreign-object
claims violates the Arkansas Constitution's guarantee of equal
protection.    The crux of the appellants' equal protection
argument is that this court should apply a heightened level of
scrutiny in reviewing the statute.  While it is true that the
statute may be more accurately described as a statute of repose,
we decline to apply strict scrutiny in examining the statute's
constitutionality.  Instead, the applicable standard of review is
rational basis.  For example, in Carter v. Hartenstein, 248 Ark.
1172, 455 S.W.2d 918 (1970), this court upheld the application of
a statute of repose for actions against architects and designers. 
The statute at issue there required that personal injury and
wrongful-death actions against a designer, planner, or
constructor of a building or improvement be brought within four
years from the date of substantial completion of the project
regardless of the date that injury arose as a result of the
defect.  The appellant in Carter challenged the statute,
asserting it violated due process, equal protection, as well as
the Article 2, Section 13, redress of wrongs guarantee.  The crux
of appellant's argument was that the statute unconstitutionally
gave protection to those enumerated in the statute while failing
to give the same protection to others such as materialmen and
owners, whom the appellant claimed belonged in the same class as
those exempted.  This court framed the issue as "whether it is
fair and reasonable and an appropriate action by the General
Assembly of the State of Arkansas, or whether it impinges and
frustrates basic rights guaranteed constitutionally."  Id.  In
answering that question, this court held that the statute was
"valid, reasonable, constitutional and not enacted for arbitrary
or capricious reasons."  Id; see also Chapman v. Alexander, 307
Ark. 87, 817 S.W.2d 425 (1991) (upholding limitations period in
legal malpractice actions).  The Carter court noted that a "vital
distinction" based on control of the premises existed between
owners or suppliers and those engaged in the professions and
occupations of design and building.  This distinction was not
arbitrary or unreasonable and was a legitimate exercise of
legislative function.
     The constitutional guarantee of equal protection does not
prohibit legislation affording different treatment for persons in
different classifications so long as there is a rational basis
for the different classifications and they have some reasonable
relation to the objectives of the legislation.  Holland v.
Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).  Of course, any
statute of limitations will eventually operate to bar a remedy,
and the time within which a claim should be asserted is a matter
of public policy, the determination of which lies almost
exclusively in the legislative domain, and the decision of the
General Assembly in that regard will not be interfered with by
the courts in the absence of palpable error in the exercise of
the legislative judgment.  Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976).  Simply put, it is the General Assembly's
prerogative to set a time in which a claim must be brought.  Such
a determination is a matter of public policy.  We are unable to
say that the limitations period found in section 16-114-203 lacks
a rational basis, or deprives a claimant of a constitutional
right to redress of wrongs or a jury trial.
     Appellants next contend that within section 16-114-203
itself exists an unconstitutional distinction between foreign-
object medical malpractice claimants and typical medical
malpractice claimants.  See Ark. Code Ann.  16-114-203(b)
("where the action is based upon the discovery of a foreign
object in the body of the injured person which is not discovered
and could not reasonably have been discovered within such
two-year period, the action may be commenced within one (1) year
from the date of discovery or the date the foreign object
reasonably should have been discovered, whichever is earlier.") 
Appellants point out that in Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986), we alluded to the "very respectable authority"
from other jurisdictions holding such a distinction to be
unconstitutional as a denial of equal protection of the laws.  As
examples of such authority, the appellants direct us to other
courts that have struck down a foreign-object distinction.  
Typical is Austin v. Litvak, 682 P.2d 41 (Colo. 1984), where the
Colorado Supreme Court held that the distinction between foreign-
object claimants and normal claimants was an arbitrary
classification.  The Austin court could find no rational basis
for distinguishing between the two classes of medical malpractice
claimants.  While the court recognized a legitimate state
interest in foreclosing the prosecution of stale or frivolous
claims, the classification which resulted in the denial of the
discovery rule to patients whose conditions were negligently
misdiagnosed did not further this interest, and therefore lacked
a "rational relationship to that goal."  Id.
     By way of contrast, other courts have upheld a similar
foreign-object plaintiff distinction.  In Ross v. Kansas City
Gen. Hosp. & Med. Ctr., 608 S.W.2d 397 (Mo. 1980) (en banc), the
court noted that the legislature may have recognized the
unfairness in barring a claim where a foreign object had been
left in the claimant's body before the object had been
discovered.  Moreover, the legislature may have deemed the time
of discovery in foreign-object cases appropriate rather than the
date of injury because "there is less likely to be as great a
problem with stale evidence when a foreign object is left in the
body than in the other types of malpractice cases."  Id.  See
also Allrid v. Emory University, 285 S.E.2d 521 (Ga. 1982)
(noting that in foreign-object cases "the danger of belated,
false or frivolous claims is eliminated.").
     Here we are merely asked to determine whether there exists
any rational basis which demonstrates the possibility of a
deliberate nexus with state objectives, so that the legislation
is not the product of utterly arbitrary and capricious government
purpose and void of any hint of deliberate and lawful purpose. 
See Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994). 
In light of staleness considerations that are not as likely
present in foreign-object cases, we conclude that a rational
basis exists for the Medical Malpractice's Act exception to its
limitations period in such cases.  The trial court did not err in
declining to find the limitations period unconstitutional as
violative of equal protection.
     Nos. 96-1350, 96-1355, 96-1406, Affirmed.  Nos. 96-1405, 96-
1407, 96-1408, 96-1409, 96-1414, 96-1415, 96-1365, 96-1354, 96-
1470, Affirmed in part, Reversed and Remanded in part.

     Special Justices Bob Leslie, Jim Pender, Warren Dupwe, and LeAnne
Daniel join in this opinion.
     Newbern, Glaze, Corbin, and Brown, J.J., not participating.