Arkansas Medical Malpractice Summary

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Statutes of Limitations

A medical malpractice action must be brought within two years after the date of the wrongful act complained of. Ark. Code Ann. § 16-114-203 (Michie Supp 1997). However, if the action is based upon the discovery of a foreign object, the action may be brought within one year from the date of discovery or the date when the object should have been discovered, whichever is earlier. Id. If an individual is nine years old or younger at the time of the act or omission complained of, he has until his eleventh birthday to commence an action, and if the injury could not reasonably be known by then, he has until the later of his nineteenth birthday or two years after the injury is discovered or reasonably could have been discovered. Id.

Wrongful death actions are governed by a three-year statute of limitations which begins to run following the decedent’s death. Ark. Code Ann. § 16-62-102 (Michie Supp. 1997). However, the two-year medical malpractice statute is controlling when the decedents death was caused by medical malpractice. Hertlein v. St. Paul Fire and Marine Insurance Co., 323 Ark. 283, 914 S.W.2d 303 (1996).

Contributory or Comparative Negligence

Arkansas adheres to the doctrine of modified comparative negligence. Under that rule, a claimant’s negligence diminishes his recovery by his percentage of fault, but does not bar recovery unless the claimant’s fault equals or exceeds the combined fault of the defendants. Ark. Code Ann. § 16-64-122 (Michie Supp. 1997).

Joint and Several Liability

The doctrine of joint and several liability applies in Arkansas; thus, a claimant may execute a judgment against any one of several joint tortfeasors, regardless of the defendants’ relative degrees of fault. Ark. Code Ann. § 16-61-203 (Michie 1987).

Contribution

The right of contribution exists among joint tortfeasors in Arkansas. Ark. Code Ann. § 16-61-202 (Michie 1987). While the statute generally provides for equal pro rata shares of contribution among joint tortfeasors, the statute also provides that the tortfeasors’ relative degrees of fault will be considered when there is “such a disproportion of fault among the joint tortfeasors as to render inequitable an equal distribution among them of the common liability by contribution . . .” Ark. Code Ann. § 16-61-202(4) (Michie 1987). Thus, the relative liability of tortfeasors for contribution may be determined on the basis of fault, when to do otherwise would be unfair.

A joint tortfeasor’s failure to sue for contribution within the principal medical malpractice action does not impair the party’s ability to seek contribution in a separate action. Ark. Code Ann. § 16-61-207(6) (Michie Supp. 1997). However, a settling joint tortfeasor may not seek contribution against one whose liability to the claimant was not extinguished by the settlement. Ark. Code Ann. § 16-61-202(3) (Michie 1987).

Vicarious Liability

Arkansas has not applied the doctrine of ostensible or apparent agency to impose liability on a hospital for the negligence of the hospital’s independently-contracted physicians. It specifically refused to apply the doctrine to a charitable hospital in Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). Moreover, it noted in that decision that Arkansas had never extended to charitable hospitals the principle of respondeat superior for the acts of physicians. Where the hospital or other health care provider is commercial, the courts have held it responsible for the actions of actual agents, and looked to the degree of control exercised over the physician to determine actual agency. Bull Shoals Community Hospital v. Partee, 310 Ark. 98, 832 S.W.2d 829 (1992).

Expert Testimony

Expert testimony is required when the claimed negligence is not within the jury’s common knowledge. Prater v. St. Paul Insurance Company, 293 Ark. 547, 739 S.W.2d 676 (1987).

Damage Caps

There is no statutory provision in Arkansas which limits the amount of damages a claimant may recover in a medical malpractice action.

Statutory Cap on Attorneys’ Fees

There is no Arkansas statutory provision which limits attorney’s fees in a medical malpractice action.

Periodic Payments

At the request of any party, a court may order that any future damages in excess of $100,000 be paid in whole or in part by periodic payments, subject to satisfactory security for future payments. Ark. Code Ann. § 16-114-208(c)(1) (Michie 1989). Further, in the event the claimant dies prior to the final periodic payment, the court may deduct from the amount owing, that portion representing unpaid compensation for future pain and suffering and future care expenses. Ark. Code Ann. § 16-114- 208(c)(3) (Michie 1989).

Collateral Source Rule

The collateral source rule is recognized in Arkansas. Consequently, a claimant’s receipt of compensation from collateral sources does not reduce the claimant’s recoverable damages. See, e.g., Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985).

Pre-Judgment Interest

If the claimant’s damages are not by their nature capable of exact determination, both in time and amount, pre-judgment interest is recoverable. City of Moro v. Cline-Frazier, Inc., 26 Ark. App. 138, 761 S.W.2d 615 (1988). This requirement normally makes the recovery of pre-judgment interest unavailable in personal injury actions, because damages for personal injury are not subject to exact calculation prior to judgment.

Patient Compensation Funds and Physician Insurance

Arkansas does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.

Immunities

The doctrine of charitable immunity applies in Arkansas. Williams v. Jefferson Hospital Ass’n, 246 Ark. 1231, 442 S.W.2d 243 (1969).

With respect to claims against the State of Arkansas and its agencies and departments, a verified complaint must be filed with the State Claims Commission. Ark. Code Ann. § 19-10-208 (Michie 1994). The statute grants immunity to state employees so long as their conduct was not covered by liability insurance and was not malicious. Ark. Code Ann. § 19-10- 305 (Michie 1994).

Political subdivisions of the state, such as counties, municipal corporations, school districts, and special improvement districts, are immune from liability for damages in tort, except to the extent that they may be covered by liability insurance. Ark. Code Ann. § 21-9-301 (Michie 1996). This immunity also extends to the political subdivisions’ agents and employees. Autry v. Lawrence, 286 Ark. 50, 696 S.W.2d 315 (1995).

Arbitration

Arkansas does not require the reference of medical malpractice actions to an arbitrator.

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Revision Date: February 6, 1998