Arkansas high court further dismantles tort 'reform' law

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February 16, 2012

Arkansas high court further dismantles tort 'reform' law 

Matthew Malamud

After chipping away at parts of Arkansas’s Civil Justice Reform Act, the state’s high court has struck down a provision that restricts who may testify as plaintiffs’ expert witnesses in medical malpractice cases. It “reaffirms the proper role for the legislature and the courts under the Arkansas constitution,” said Gerry Schulze of Little Rock, Arkansas.

A month after nixing a cap on punitive damages, the Arkansas Supreme Court has voided another provision of the state’s Civil Justice Reform Act, approved by the General Assembly in 2003, that restricts who may testify as plaintiffs’ expert witnesses in medical malpractice cases. (Broussard v. St. Edward Mercy Med. Ctr., 2012 WL 149761 (Ark. Jan. 19, 2012).)

That provision states that plaintiffs’ expert testimony shall be “provided only by a medical care provider of the same specialty as the defendant” who can speak to “the degree of skill and learning ordinarily possessed and used by members of the profession of the [defendant] 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” and can attest that the defendant “failed to act in accordance with that standard.”

The state’s constitution, however, says that the “Supreme Court shall prescribe the rules of pleading, practice, and procedure for all courts.” Dubbing the provision a procedural rule because it dictates the qualifications expert witnesses must possess, the supreme court said, “The authority to decide who may testify and under what conditions is a procedural matter solely within the province of the courts.” As a result of this conclusion, the court voided the provision.

The decision stems from a case in which plaintiff Teresa Broussard sustained burns on her neck and chest while undergoing surgery in 2006 to remove her parathyroid glands. She had to have additional surgery to remove the damaged skin and receive skin grafts. Broussard sued several parties, including the surgeon who performed her parathyroidectomy, the hospital where it took place, and a nephrologist who treated her for subsequent, but unrelated, renal failure.

A trial court granted the defendants summary judgment because Broussard’s medical expert witness was not board certified in general surgery or nephrology. Broussard appealed, but the circuit court upheld the trial court’s ruling, concluding that the witness requirement is substantive and therefore is constitutional.

Gerry Schulze of Little Rock, Arkansas, who represented Broussard, said the supreme court’s reversal “reaffirms the proper role for the legislature and the courts under the Arkansas constitution.”

“The courts have rules of evidence that have been interpreted and used and hammered out over decades,” he said, “and when the legislature comes in and creates something new, it throws everything into a state of confusion. Confusion is not good for the law. It’s not good for defendants or plaintiffs.”

The witness requirement has affected the cost of litigation, but not in the way its backers had hoped. In Broussard’s case, for example, Schulze would have had to retain three separate medical experts to comply. “All that does is raise the cost of litigation for everybody. If we had three separate experts, then the defense would have brought in three separate experts, and there you go,” he said.

After Broussard, there’s little left of Arkansas’s Civil Justice Reform Act that dictates court procedure in medical malpractice cases, said Schulze.

In 2009, the Arkansas Supreme Court in Johnson v. Rockwell Automation, Inc. struck down a provision that required the fact-finder to consider nonparties’ degree of fault in determining defendants’ liability, and another provision that limited plaintiffs’ recovery of the full value of their medical care.

In 2007, the court in Summerville v. Thrower struck down a provision that required plaintiffs to furnish the court with an affidavit within 30 days of filing suit by a medical expert witness of the same specialty as the defendant, attesting to how the defendant breached the applicable standard of care and how his or her actions resulted in injury.


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