Tomosa Summerville v. Dr. Rufus Thrower, Joy Woolfolk, and Healthcare for Women, P.A.
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SUPREME COURT OF ARKANSAS
No.
06-501
Opinion Delivered 3-15-07
TOMOSA SUMMERVILLE,
APPELLANT,
VS.
DR. RUFUS THROWER, JOY
WOOLFOLK, AND HEALTHCARE FOR
WOMEN, P.A.,
APPELLEES,
APPEAL FROM THE CIRCUIT COURT
OF PULASKI COUNTY, ARKANSAS,
NO. CV 2005-9641, HON. CHRIS
PIAZZA, JUDGE,
REVERSED AND REMANDED.
ROBERT L. BROWN, Associate Justice
Appellant Tomosa Summerville appeals the dismissal of her medical-malpractice
complaint against appellees Dr. Rufus Thrower, Joy Woolfolk, and Healthcare for Women,
P.A.,1 which dismissal was based on her failure to file an affidavit of reasonable cause within
thirty days of filing her complaint, as required by Act 649 of 2003, now codified at Ark.
Code Ann. § 16-114-209(b) (Repl. 2006). She raises multiple issues for reversal. We
conclude that the mandatory thirty-day requirement for the affidavit of reasonable cause after
filing the complaint directly conflicts with Rule 3 of our Rules of Civil Procedure regarding
commencement of litigation. Accordingly, we reverse and remand.
1
At various times in the record, Healthcare is spelled as two words. We choose to
spell it as one word, which is the spelling on the cover of the record.
On July 21, 2005, the appellant, Tomosa Summerville, filed a complaint in Pulaski
County Circuit Court against Dr. Rufus Thrower, Joy Childress,2 and Healthcare for Women,
P.A. (“Healthcare”) for medical negligence. The complaint alleged that on January 23, 2003,
Dr. Thrower, a practicing obstetrician and gynecologist and owner of Healthcare, a clinic for
women, “cut and tied [Summerville’s] tubes.” Summerville visited Healthcare again on
August 8, 2003, and informed Joy Woolfolk, a licensed nurse practitioner working there, that
the result of a recent pregnancy test was positive. Woolfolk diagnosed Summerville as
having a normal pregnancy and advised her to return to Healthcare on September 5, 2003,
for prenatal care.
On August 28, 2003, Summerville became delirious and experienced abnormally
heavy vaginal bleeding. She was taken to the University of Arkansas for Medical Sciences
(UAMS) and was diagnosed with a tubal pregnancy and underwent emergency surgery. In
her complaint, Summerville alleged that Dr. Thrower, Woolfolk, and Healthcare all violated
the applicable standard of care. She alleged that Dr. Thrower, as owner of Healthcare, did
not adequately supervise Woolfolk or take steps to assure that she was supervised by a
physician and did not thoroughly examine Summerville or her medical chart. She further
alleged that if Dr. Thrower did examine her medical chart, he should have diagnosed
Summerville with a tubal pregnancy.
2
An amended complaint was filed on August 29, 2005, stating essentially the same
allegations as the original complaint and changing Joy’s last name from Childress to
Woolfolk.
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With regard to Woolfolk, Summerville alleged that she should not have undertaken
Summerville’s medical care without the adequate supervision of a physician and that
Woolfolk should have diagnosed her with a tubal pregnancy and requested that Dr. Thrower
examine her. Summerville asked for damages against the defendants for mental and physical
suffering, disfigurement, and the incurrence of medical expenses. She also asked for
punitive damages and alleged that Dr. Thrower intentionally and illegally allowed Woolfolk
to provide medical care to her without the supervision of a physician. The doctor further
assisted Woolfolk, according to Summerville, in the practice of medicine without a license.
On September 16, 2005, separate defendants Dr. Thrower and Healthcare filed a
motion to dismiss the complaint, wherein they contended that Summerville failed to submit
an affidavit of reasonable cause from a medical expert as required by § 16-114-209(b).
Summerville responded to that motion and urged that § 16-114-209(b) was unconstitutional
for multiple reasons. She also attached an affidavit to her response from her attorney, R.
David Lewis, which stated that Lewis had researched the medical issues at the UAMS library
and was convinced that there was a valid cause of action. The affidavit further stated that
the physician who performed Summerville’s surgery at UAMS had agreed to testify for
Summerville but had not responded to the request for an affidavit. Separate defendant
Woolfolk filed a motion to dismiss the complaint and asserted that the statute of limitations
had expired on the claim against her and also that Summerville had failed to meet the
requirements of § 16-114-209(b).
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Summerville subsequently filed two affidavits. The first, filed on October 11, 2005,
was submitted by Dr. Nancy Andrews, a UAMS physician practicing obstetrics and
gynecology, which averred that the standard of care in this community had been violated
under the facts of Summerville’s case. The second affidavit, filed on January 10, 2006, was
submitted by Sarah Rhoads, a clinical assistant professor at the UAMS College of Nursing
and a licensed advanced nurse practitioner specializing in women’s health. That affidavit
explained the applicable standard of care for nurse practitioners in this community relating
to ectopic pregnancies.
A hearing was held, following which the circuit court entered an order on January 13,
2006, in which it ruled that § 16-114-209(b) was constitutional. As a result, the court
dismissed Summerville’s complaint with prejudice against all defendants for failure to submit
an affidavit of reasonable cause by a qualified expert within thirty days of the filing of the
complaint, as required by § 16-114-209(b)3 . Summerville filed a motion for a new trial and
modification of the judgment and contended that the dismissal should have been without
prejudice.
Because the circuit court did not rule on the motion for a new trial and
modification of the judgment within thirty days, the motion was deemed denied.
Summerville appeals and contends that the circuit court erred for multiple reasons in
ruling that § 16-114-209(b) was constitutional. She first claims that the statute is in conflict
3
The circuit court denied separate defendant Woolfolk’s motion to dismiss which was
based on the statute of limitations.
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with this court’s Rules 1, 3, 8, 9, 10, 11, 12, 15, 41, and 56 of the Arkansas Rules of Civil
Procedure. Because we reverse on the issue that § 16-114-209(b)(3)(A) directly conflicts
with Rule 3 of our Rules of Civil Procedure, we need not address the remaining issues raised
on appeal.
The entire statute in question in this case provides as follows:
(a) If any action for medical injury is filed without reasonable cause,
the party or attorney who signed the complaint shall thereafter, as determined
by the court, be subject to:
(1) The payment of reasonable costs, including attorney’s fees, incurred
by the other party by reason of the pleading; and
(2) Appropriate sanctions.
(b)(1) In all cases where expert testimony is required under § 16-114206, reasonable cause for filing any action for medical injury due to negligence
shall be established only by the filing of an affidavit that shall be signed by an
expert engaged in the same type of medical care as is each medical care
provider defendant.
(2) The affidavit shall be executed under oath and shall state with
particularity:
(A) The expert’s familiarity with the applicable standard
of care in issue;
(B) The expert’s qualifications;
(C) The expert’s opinion as to how the applicable
standard of care has been breached; and
(D) The expert’s opinion as to how the breach of the
applicable standard of care resulted in injury or death.
(3)(A) The plaintiff shall have thirty (30) days after the
complaint is filed with the clerk to file the affidavit before the
provisions of subsection (a) of this section apply.
(B) If the affidavit is not filed within thirty (30) days after
the complaint is filed with the clerk, the complaint shall be
dismissed by the court.
Ark. Code Ann. § 16-114-209 (Repl. 2006).
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This court has often stated our standard for reviewing the constitutionality of a statute:
It is well settled that there is a presumption of validity attending every
consideration of a statute's constitutionality; every act carries a strong
presumption of constitutionality, and before an act will be held unconstitutional, the incompatibility between it and the constitution must be
clear. Eady v. Lansford, [351 Ark. 249, 92 S.W.3d 57 (2002)]. Any doubt as
to the constitutionality of a statute must be resolved in favor of its
constitutionality. Id. The heavy burden of demonstrating the unconstitutionality is upon the one attacking it. Id.
Whorton v. Dixon, 363 Ark. 330, 336, __ S.W.3d __, __ (2005). If possible, this court will
construe a statute so that it is constitutional. See McLane Southern, Inc. v. Davis, 366 Ark.
164, __ S.W.3d __ (2006). This court reviews the circuit court’s interpretation of the
constitution de novo, and though this court is not bound by the circuit court’s decision, the
circuit court’s interpretation will be accepted as correct on appeal in the absence of a
showing that the circuit court erred. See First Nat’l Bank of DeWitt v. Cruthis, 360 Ark. 528,
203 S.W.3d 88 (2005).
The Oklahoma Supreme Court recently considered an appeal from a dismissal of a
medical-malpractice complaint due to failure to attach an affidavit from a qualified medical
expert attesting to the merit of the cause of action. See Zeier v. Zimmer, Inc., ___ P.3d ___,
(Okla. Dec. 9, 2006). In that case, the Oklahoma General Assembly had enacted legislation
requiring that an affidavit of merit from a qualified expert be attached to medical-malpractice
complaints. For good cause, a plaintiff could obtain a ninety-day extension of time to file
the affidavit. Otherwise, the plaintiff’s complaint would be dismissed. The Oklahoma
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plaintiff filed a medical-malpractice complaint without the affidavit and did not request an
extension. The trial court dismissed the complaint without prejudice, and the plaintiff
appealed.
The Oklahoma Supreme Court held that the act requiring an affidavit of merit was
unconstitutional under Oklahoma’s state constitution as special legislation and as
constructing a monetary barrier to access to the courts. In so holding, the court said:
The Oklahoma Legislature implemented the Affordable Access to
Health Care Act (Health Care Act), 63 O.S. Supp. 2003 § 1-1708.1A et seq.
for the purpose of implementing reasonable, comprehensive reforms designed
to improve the availability of health care services while lowering the cost of
medical liability insurance and ensuring that persons with meritorious injury
claims receive fair and adequate compensation. Although statutory schemes
similar to Oklahoma’s Health Care Act do help screen out meritless suits, the
additional certification costs have produced a substantial and disproportionate
reduction in the number of claims filed by low-income plaintiffs. The affidavit
of merit provisions front-load litigation costs and result in the creation of
cottage industries of firms offering affidavits from physicians for a price.
They also prevent meritorious medical malpractice actions from being filed.
The affidavits of merit requirement obligates plaintiffs to engage in extensive
pre-trial discovery to obtain the facts necessary for an expert to render an
opinion resulting in most medical malpractice causes being settled out of court
during discovery. Rather than reducing the problems associated with
malpractice litigation, these provisions have resulted in the dismissal of
legitimately injured plaintiffs’ claims based solely on procedural, rather than
substantive, grounds.
Zeir, ___ P.3d at ___.
For Summerville’s point that § 16-114-209(b) conflicts with Rule 3 regarding
commencement of a cause of action, she relies on Weidrick v. Arnold, 310 Ark. 138, 835
S.W.2d 843 (1992). In Weidrick, this court held that the statutory requirement for a sixty-day
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notice to medical-malpractice defendants prior to the filing of an action was superseded by
Rule 3 of the Arkansas Rules of Civil Procedure. In so holding, we concluded that Rule 3
governs the commencement of all civil actions and requires only that a complaint be filed
with the clerk of the appropriate court. We concluded that the sixty-day-notice requirement
added an additional condition for the commencement of a medical-malpractice action, and
we struck down this procedural hurdle as being directly at odds with Rule 3. The crux of
Summerville’s contention on appeal today is that a mandatory requirement for an affidavit
thirty days after filing a complaint, the absence of which will lead to a dismissal, is an added
encumbrance for filing a complaint that does not differ essentially from the mandatory sixtyday notice we struck down in Weidrick, supra.
The appellees respond that Weidrick, supra, is distinguishable from this case because,
first, the affidavit requirement under § 16-114-209(b) is substantive law rather than a mere
procedural rule, and, second, the statute does not directly conflict with any of this court’s
Rules of Civil Procedure. The boilerplate definition of substantive law is “[t]he part of the
law that creates, defines, and regulates the rights, duties, and powers of parties,” while
procedural law is defined as “[t]he rules that prescribe the steps for having a right or duty
judicially enforced, as opposed to the law that defines the specific rights or duties
themselves.” Black’s Law Dictionary 1443, 1221 (7 th ed. 1999). Along those same lines, this
court said in Middleton v. Lockhart, 355 Ark. 434, 438, 139 S.W.3d 500, 502-03 (2003), “a
true statute of limitations, one that will be considered procedural in nature, extinguishes only
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the right to enforce the remedy and not the substantive right itself.” We added that if the
statute extinguished the right to bring the lawsuit itself, rather than the right to enforce the
remedy, then it would be substantive. See Middleton, supra. While the requirement for an
affidavit of reasonable cause may well fall in the category of substantive law, an automatic
dismissal of the cause of action if the affidavit is not filed within thirty days concerns
enforcement of a remedy, and we hold it is procedural.
At the outset, it is important to highlight the fact that the Medical Malpractice Act
currently contemplates two averments by experts: (1) the affidavit of reasonable cause,
which is the subject of this appeal; and (2) expert testimony of the community’s standard of
care, the absence of which may lead to summary judgment in favor of the defendant. See
Ark. Code Ann. § 16-114-206 (Repl. 2006). Since the enactment of the Medical Malpractice
Act in 1979, our law has provided that the plaintiff has the burden of proof and that expert
testimony by a physician must be produced, establishing a violation of the standard of care
in the locality where the defendant doctor practices or in a similar locality to withstand
summary judgment. See Act 709 of 1979, now codified at Ark. Code Ann. §§ 16-114-201
– 16-114-212 (Repl. 2006). See also Eady v. Lansford, 351 Ark. 249, 925 S.W.3d 57 (2002).
The act specifies no time frame in which the expert testimony must be given. This court has
upheld that requirement for expert testimony regarding the standard of care and held that it
does not constitute special legislation. See Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675
(1996).
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Act 649 of 2003, now codified at Ark. Code Ann. § 16-114-209, requires an additional
medical expert averment in the form of an affidavit of reasonable cause within thirty days of
filing a complaint and justifies it in the Emergency Clause on the basis that lower medicalmalpractice insurance costs will follow. It is only the affidavit of reasonable cause required
by § 16-114-209(b), and its dismissal procedure that we consider today.
Because we conclude that § 16-114-209(b) is procedural, we turn to its asserted
conflict with Rule 3. The Arkansas Constitution is clear that rules of pleading, practice, and
procedures for our courts fall within the domain of this court. Ark. Const. amend. 80, § 3.
We are hard pressed to distinguish the situation at hand from that in Weidrick, supra. As
already observed, in Weidrick, this court struck down an act requiring a mandatory sixty-day
notice prefatory to filing a medical-malpractice action as being in direct conflict with our
Rule 3 for commencing civil actions. In doing so, we said:
We can think of few rules more basic to the civil process than a rule
defining the means by which complaints are filed and actions commenced for
a common law tort such as medical malpractice. The express intent of the
Arkansas Constitution and Act 38 of 1973 is for the governance of the
procedure of the courts of this state to fall within the power and authority of
the Arkansas Supreme Court. How civil actions are commenced is [a]
fundamental cog in that procedural wheel.
Weidrick, 310 Ark. at 146, 835 S.W.2d at 847. There is little, if any, practical difference in
this court’s mind between a mandatory legislative requirement before commencing a cause
of action like we had in Weidrick and a mandatory requirement within thirty days
immediately after filing a complaint such as we have here. Both procedures add a legislative
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encumbrance to commencing a cause of action that is not found in Rule 3 of our civil rules.
Appellees Thrower and Healthcare appear to acknowledge this when they write in their brief
in support of motion to dismiss and for costs: “Alternatively, the pleading mistake [failure
to include the reasonable-cause affidavit] means that this action was not properly commenced
. . . .”
The constitutional infirmity in § 16-114-209(b) is the provision for dismissal if the
affidavit does not accompany a complaint within thirty days. We do not hold today that the
balance of § 16-114-209(b), requiring a reasonable-cause affidavit, is constitutionally infirm.
Having said that, it appears that without the time limit of thirty days, the statute largely is
duplicative of § 16-114-206 regarding the plaintiff’s burden of proof and medical expert
testimony concerning breach of the standard of care in the community.
We reverse the order of dismissal of the circuit court with respect to the thirty-day
dismissal set out in § 16-114-209(b)(3)(A) and strike that provision as directly in conflict
with Rule 3 of our Civil Rules of Procedure and this court’s authority under Amendment 80
of the Arkansas Constitution. We note that Section 25 of Act 649 of 2003 contains a
severability clause, and we hold that in all other respects, § 16-114-209(b) is valid.
Reversed and remanded.
G LAZE and IMBER, JJ., concur.
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A NNABELLE C LINTON IMBER, J., concurring. I concur with the result reached by the
majority because Arkansas Code Annotated § 16-114-209(b)(3)(B) (Repl. 2006) conflicts
with Rule 11 of the Arkansas Rules of Civil Procedure.
Section 16-114-209(a) authorizes the imposition of appropriate sanctions if a party
or attorney files a medical malpractice action without “reasonable cause.” In effect, the
statutory authorization in § 16-114-209(a) mirrors Ark. R. Civ. P. 11, which empowers the
circuit court to impose “appropriate sanctions” on any party or attorney who files a pleading
without forming a belief based on reasonable inquiry that the pleading is “well grounded in
fact and is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for any improper
purpose, such as to harass[,] . . . cause unnecessary delay or needless increase in the cost of
litigation.” Both Rule 11 and § 16-114-209(a) allow the circuit court to use its discretion
when determining the appropriate sanction. Thus, it is clear that § 16-114-209(a) does not
conflict with Rule 11.
The same cannot be said for section 16-114-209(b)(3)(B), in that it completely strips
the circuit court of its discretion in the imposition of sanctions. This statutory provision
mandates a particular sanction— the dismissal of a medical malpractice action—that
conflicts with Rule 11 in two respects. First, the statute requires a particular sanction,
whereas Rule 11 affords the circuit court broad discretion to decide an “appropriate
sanction.” Second, it provides no opportunity for the plaintiff to withdraw or correct the
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alleged deficiency after notice of the challenge. Rule 11 specifically bars the filing of a
motion for sanctions unless “the challenged paper, claim, defense, contention, allegation, or
denial is not withdrawn or appropriately corrected,” within 21 days after service of the
motion, or such other period as the court may prescribe. Ark. R. Civ. P. 11(b). Thus, our
rule allows for a “safe harbor” during which a party may, without penalty, correct an alleged
deficiency.
As the majority noted, the Arkansas Constitution expressly grants this court the
authority to develop rules of pleading, practice, and procedure. Ark. Const. amend. 80, § 3.
I would reverse and remand because § 16-114-209(b)(3)(B) is directly in conflict with Rule
11 of our Civil Rules of Procedure and this court’s authority under Amendment 80 of the
Arkansas Constitution.
G LAZE, J., joins this concurrence.
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