Arkansas Medical Malpractice Laws

Medical malpractice claims are nuanced in that there are a variety of facts that must be analyzed to make certain that your claim has merit and is permitted to be filed with a court. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering. This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Arkansas; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Arkansas. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Arkansas

In Arkansas, you may bring a medical malpractice case against a medical care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Arkansas places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Arkansas allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. Arkansas is one of a few states that refuse to place a limit on damages that may be awarded to a plaintiff in a medical malpractice case.

How long do I have to file a medical malpractice case in Arkansas?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Arkansas mandates that an action for personal injury must be filed within two years from the date the cause of action accrues. [1]

This time, limitation is known as the “statute of limitations” which refers to the time period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no recourse. The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially help bolster your case would become less compelling.

The law in Arkansas does provide a special exception to the two-year statute of limitations rule whereby the two-year clock does not begin to run until your injury has been, or should have been, discovered. However, this exception, known as the “discovery rule,” is only applicable in a situation where a foreign object was left within a patient’s body. [2]

Additionally, if the person who suffered an injury is under the age of nine years old, they will have until the later of their eleventh birthday or two years after the medical malpractice took place to file their claim. [3]

If the child’s injury was unable to be discovered prior to their eleventh birthday, then the two-year window will be extended until the earlier of when the injury is discovered, should have been discovered, or until the child’s nineteenth birthday. [4]

In Arkansas Medical Malpractice Cases, Who is Responsible?

In Arkansas, an action arising out of a medical injury may be brought against a medical care provider whether based in tort, contract, or otherwise, to recover damages on account of your medical injury. [5]

Those that can be held responsible due to being included in the definition of a “medical care provider” include:

• physician
• certified registered nurse anesthetist
• physician’s assistant
• nurse
• optometrist
• chiropractor
• physical therapist
• dentist
• podiatrist
• pharmacist
• veterinarian
• hospital
• nursing home
• community mental health center
• psychologist
• clinic
• or not-for-profit home healthcare agencies licensed by the state or otherwise lawfully providing professional medical care or services, or an officer, employee or agent thereof acting in the course and scope of employment in the providing of such medical care or medical services [6]

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove:

• By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;
• By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and
• By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred. [7]

If your lawsuit is based upon a claim that the medical care provider did not provide the requisite information in order for you to provide informed consent, you will have the burden of proving that the procedure or treatment that gave rise to your injury was performed in a situation other than an emergency and that the medical care provider did not supply the requisite information as would customarily have been given to a patient in your position by other medical care providers with similar training and experience at the time of the procedure or treatment in the locality in which the medical care provider practices or in a similar locality. [8]

What if I am partially to blame? Can I Still Recover Money for Arkansas Medical Malpractice?

Arkansas, along with 32 other states recognizes the doctrine of modified comparative fault. [9] The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Arkansas is one of 12 states (Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia) that follow a 50% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 49% or less.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and alcohol that you consumed while on the medication. The court ultimately finds that the doctor should never have prescribed that specific type of medication due to your allergy and assigns the defendant 60% of the blame while assigning 40% of the blame to you for not following the medication’s instructions when you consumed alcohol while on the medication. Since you were awarded 40% of the blame, you would be able to recover a portion of damages because you were not found to have been 50% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $60,000 after the apportioned 40% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Arkansas decided to adopt a modified system.

Are there medical malpractice recovery caps in Arkansas?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two main types of damage awards you may receive:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – actual damages and general damages.

Actual damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

General damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Article 5, Section 32 of the Arkansas Constitution does not allow the state to place a limit on the amount of damages that may be awarded in a medical malpractice lawsuit. [10]

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than compensate the plaintiff. In Arkansas, punitive damages may be awarded by the court only when you prove by clear and convincing evidence that the defendant knew or ought to have known, in light of the surrounding circumstances, that their conduct would naturally and probably result in injury or damage and that they continued the conduct with malice or in reckless disregard of the consequences, from which malice may be inferred; or the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage. [11]

The law in Arkansas places a limit on the amount of punitive damages that a court may award which is the greater of $ 250,000 or three (3) times the amount of compensatory damages, with a $1 million cap. However, there is an exception to the cap whereby if the fact finder determines that defendant meant to cause the harm and did cause the harm, then the cap is not applicable. [12]

Expert witness reporting and testimony

In Arkansas, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify. [13]

Having an expert provide testimony that supports the claims you are making against a healthcare provider in your medical malpractice case is the best way to substantiate the merits of your claim. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred.

The law in Arkansas once required that, in medical malpractice cases requiring expert testimony, an affidavit attesting to a breach of the standard of care must be filed within 30 days of the filing of the complaint and if the affidavits were not properly filed, the case would be dismissed. However, the Arkansas Supreme Court in Summerville v. Thrower found on appeal that the affidavit of merit requirement was unconstitutional. The court ruled that the regular court rules do not require dismissal of a case for failure to file an affidavit of merit within a specified time period, and the Arkansas Constitution empowered the Supreme Court to establish procedural rules for the courts. Therefore, an Arkansas court can delay dismissing a medical malpractice lawsuit even if the plaintiff is unable to obtain an expert to testify on their behalf. [14]

Are some parties immune from medical negligence cases?

The law in Arkansas follows the doctrine of charitable immunity. The doctrine of charitable immunity is based on the idea that an entity created and maintained exclusively for charity should not have its assets diminished by judgments in favor of a person injured by an agent of the charity.

Courts in Arkansas have adopted eight factors that are considered when deciding whether the doctrine of charitable immunity should be invoked:

• whether the organization’s charter limits it to charitable or eleemosynary purposes;
• whether the organization’s charter contains a “not-for-profit” limitation;
• whether the organization’s goal is to break even;
• whether the organization earned a profit;
• whether any profit or surplus must be used for charitable or eleemosynary purposes;
• whether the organization depends on contributions and donations for its existence;
• whether the organization provides its services free of charge to those unable to pay; and
• whether the directors and officers receive compensation.

Settling medical malpractice cases in Arkansas

Seeing a case through to the end of a trial can take an extraordinary amount of time, money and resources. For those reasons, it is not uncommon for a case to settle prior to trial. The law in Arkansas does not require mandatory arbitration, mediation, or the submission of your medical malpractice case to a screening panel as a form of alternative dispute resolution prior to the claim reaching the trial stage of litigation.

However, if both parties are interested in reaching a settlement in lieu of going to court, a form of alternative dispute resolution may be helpful.

In Arkansas, there are two types of alternative dispute resolution; mediation and arbitration.

Mediation is a settlement conference that is run by a trained mediator where any settlement negotiated is agreed to by both sides.

Arbitration is where the involved parties agree upon an arbitrator who will serve as the judge and jury and decide issues of fault and award damages.

Litigating medical negligence cases in Arkansas

A claim for medical malpractice in Arkansas is initiated by preparing a Complaint and Summons that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to trial. In Arkansas, a civil lawsuit begins with the filing of a complaint with the clerk of the court. The law in Arkansas then requires that once a complaint is filed, the court clerk will issue a summons which will be served upon the named defendants by the Sheriff. [15]

A complaint should include:

• A statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the plaintiff is entitled to relief,
• A demand for the relief to which the plaintiff considers himself entitled [16]

A civil summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit. Upon receipt, the defendants have 30 days to file an Answer which admits and/or denies statements made in the complaint. The Answer should include:

• Reasons for denial of the relief sought by the plaintiff
• Affirmative defenses
• Affirmative relief sought by the defendant
• Whether there will be a counter-claim, set-off, cross-claim, or third-party claim
• The address of the defendant or their attorney [17]

Preparing for Litigation

After the disclosures have been made and the complaint, summons, and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

The law in Arkansas allows each side to obtain discovery by:

• oral examination or written questions;
• written interrogatories;
• requests for admission;
• request for production of documents or other information;
• physical and mental examinations [18]

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

At the trial, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition. [19]

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The law in Arkansas does not mandate that claims of medical malpractice first be heard during an arbitration proceeding prior to the case reaching the trial stage of litigation. Therefore, if the involved parties are not able to come to a settlement agreement, the case will go to trial.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Arkansas: a judge or a jury. Where as many as nine out of twelve jurors in a civil case heard in an Arkansas state court agree upon a verdict, the verdict shall be returned as the verdict of the jury. The parties may, however, stipulate that a jury shall consist of any number less than twelve and that a verdict or finding of a stated majority should be taken as the verdict or finding of the jury. [20]

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court.

Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. A potential juror is not allowed to be excluded from jury service because of race, color, religion, sex, national origin or economic status. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Arkansas, a person is considered to be qualified to be a juror if they are:

• A registered voter
• A citizen of the United States
• A resident of the State of Arkansas and of the county in which he or she may be summoned for jury service [21]

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The Court of Appeals differs from the lower court in that it does not hear testimony from witnesses and does not determine facts. Instead, during an appeal, the court decides whether the trial Court made an error of law or made a factual determination unsupported by any evidence which led to the rendering of the verdict.

To appeal the decision of a lower court, you must file a Notice of Appeal with the clerk of the circuit court that entered the judgment no later than thirty (30) days from the date of the original judgment. [22]

How to find the best Arkansas Medical Malpractice Lawyer for your case

Initiating any legal proceeding can be daunting and overwhelming, especially if it is being brought against a high powered doctor or hospital. It is likely that you would rather focus on healing your injury and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. After all, why should you be forced to go out-of-pocket for an injury that was caused by someone else? In order to increase your chances of success in your medical malpractice case, it is very important to find competent and highly skilled legal representation.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Do not let an attorney or firm pressure you into hiring them on the spot. Take your time and interview more than one law firm to make sure that the counsel you end up with is the right fit for you and your family.

Make certain to seek out an attorney or law firm that has extensive experience and knowledge with cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation.

If the attorney or firm you are interviewing has a large case load, you will want to make sure that your case gets sufficient attention. Ask the firm or attorney if they have the time to focus on your case.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from Arkansas

These cases represent awards to plaintiffs in medical malpractice cases in Arkansas. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Borden v. Brookwood health Medical Services, Inc.

While at home, the plaintiff, Butch Borden, developed severe burning back pain shooting down both of his legs. The plaintiff’s wife called the plaintiff’s neurosurgeon, Dr. Tom Staner, and informed him of the plaintiff’s condition. Dr. Stander instructed the plaintiff to go to the emergency room.

Upon arrival at the emergency room, Dr. Ricky Phillips examined the patient and also called Dr. Staner to go over the plaintiff’s symptoms and condition. A CT Scan of the plaintiff’s low back showed a small hematoma. A decision was ultimately made to admit the plaintiff to the hospital and to carefully monitor him throughout the night.

During the course of the night, the plaintiff developed urinary incontinence and lost the ability to move his legs. However, this information was not communicated by the hospital nurses to any of the involved doctors. By the time Dr. Staner arrived at the hospital the morning after the plaintiff was admitted, the plaintiff’s condition worsened. Dr. Staner performed an emergency surgery as a result of finding out that the plaintiff had a large hematoma compressing a bundle of spinal nerves near the spinal cord. However, the delay in surgery resulted in the plaintiff being permanently impotent and incontinent.

The plaintiff brought a medical malpractice lawsuit, establishing the standard of care through two of the hospital’s nurses. Dr. Staner testified that he would have gone to the hospital that night if he had been informed of the plaintiff’s incontinence and inability to move his legs. The plaintiff was also able to prove that had emergency surgery been performed within twelve hours from the onset of his incontinence and inability to move his legs, his neurological outcome would have been significantly improved.

A jury agreed with the plaintiff and ordered an award in the amount of $5 million to the plaintiff and $2.5 million to his wife for loss of consortium.

Angela Thornton v. Dr. Shabir Dharamsey

The plaintiff, Angela Thornton, filed a medical malpractice lawsuit against Dr. Shabir Dharamsey, based upon a claim that the defendant unnecessarily implanted an internal cardiac defibrillator.

The plaintiff originally sought medical evaluation for chest pain. The defendant determined at that time that the plaintiff had a weak heart and ordered an echocardiogram to be able to further diagnose the woman’s heart condition. A second echocardiogram was later ordered by the defendant cardiologist and the results of both echocardiograms were normal but the defendant failed to advise the plaintiff of the results. The defendant continued to treat the plaintiff for a cardiac condition that did not exist.

Ultimately, the defendant admitted the plaintiff to a local hospital where the cardioverter-defibrillator was implanted.

The court heard the testimony of the factual and medical expert witnesses who testified during the trial that the results of both echocardiograms were normal, that the plaintiff did not have heart disease at the time the device was implanted and that it was unnecessary.

A jury returned its verdict in favor of the plaintiff in the amount of $1.75 million.

Footnotes

[1] A.C.A. § 16-114-203(a)

[2] A.C.A. § 16-114-203(b)

[3] A.C.A. § 16-114-203(c)(1)

[4] A.C.A. § 16-114-203(c)(2)

[5] A.C.A. § 16-114-201(1)

[6] A.C.A. § 16-114-201(2)

[7] A.C.A. § 16-114-206(a)

[8] A.C.A. § 16-114-206(b)(1)

[9] A.C.A. § 16-64-122

[10] ARK. Const.art. 5 § 32

[11] A.C.A. § 16-55-206

[12] A.C.A. § 16-55-208

[13] Arkansas Rules of Evidence 702

[14] Summerville v. Thrower, 253 S.W.3d 415 (Ark. 2007)

[15] ARKCP Rule 4

[16] ARKCP Rule 8

[17] ARKCP Rule 6

[18] ARKCP Rule 26

[19] ARKCP Rule 32

[20] ARKCP Rule 48

[21] A.C.A. § 16-31-101

[22] ARK Crt. Rules. 4