Thursday, January 17, 2013
On Speaking Too Soon
We (well, Bexis) doesn’t know all that much about Arkansas. He’s only been there once – if driving through without stopping on I-55 to Memphis many years ago counts. Even his massive (excessive?) million-plus word Harry Potter fanfic had only one Arkansas reference in it (about James Potter once being the lead singer for a Hogwarts band called “Black Oak Azkaban”). Bexis did, however, vote for Bill Clinton twice (and would happily have done so in every election since – peace, prosperity, and budget surpluses look pretty good in retrospect).
But Razorback-related ignorance didn’t stop Bexis from purporting to state Arkansas law recently in our 50-state survey ofhospital strict liability. That post stated:
The Arkansas Supreme Court avoided the issue in Adams v. Arthur, 969 S.W.2d 598, 614 (Ark. 1998) (“we do not decide whether a hospital . . . may be strictly liable as a supplier”). The holding in Adams – that the strict liability claims were barred by the statute of limitations applicable to malpractice claims – is suggestive that no separate cause of action for strict liability exists, but that’s not the ruling. There’s also mention of a holding rejecting hospital strict liability in Kirkendall v. Harbor Insurance Co., 698 F. Supp. 768, 770 (W.D. Ark. 1988), but it’s in a procedural history discussion. If somebody has access to the order in Kirkendall, please send it to us.
That turned out well (no, nobody sent the missing Kirkendall order, but that hardly matters anymore). Apparently, Bexis missed the crucial case, at least according to some recent opinions that we’ve learned about on this topic. See Wages v. Johnson Regional Medical Center, ___ F. Supp.2d ___, 2013 WL 120888 (W.D. Ark. Jan. 9, 2013); Shepherd v. Baptist Health, ___ F. Supp.2d ___, 2012 WL 6811076 (E.D. Ark. Nov. 30, 2012); Gunn v. St. Vincent Infirmary Medical Center, 2012 WL 6811786, *1 (E.D. Ark. Nov. 29, 2012).
The key case, in fact, was Paulino v. QHG of Springdale, Inc., 2012 Ark. 55, ___ S.W.3d ___, 2012 WL 401512 (Feb. 9, 2012). As stated most recently in Wages:
Subsequent to the Adams ruling, the court clarified in Paulino . . . that a “medical injury” pursuant to the Act is defined as “the result of (1) a professional service, (2) a doctor's treatment or order, or (3) a matter of medical science.” Applying that definition to the instant dispute, it is evident that the allegations of wrongdoing made by Plaintiffs against [the hospital] flow entirely from the “medical injury” sustained by [plaintiff] during the implantation of the . . . device as “the result of” “a professional service” delivered by [the hospital] through its medical staff, pursuant to “a doctor’s treatment or order.” Therefore, all acts or omissions asserted in this case against [the hospital] are governed by the Medical Malpractice Act.
The Arkansas Products Liability Act . . . does not trump the Medical Malpractice Act in this case. . . . [T]he 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,” indicates that . . . a hospital such as [defendant] cannot be considered a product's “supplier” under the Products Liability Act simply because the hospital utilizes the product during a medical procedure
2013 WL 120888, at *2 (citations and footnotes omitted). Thus, the product liability cause of action against the hospital couldn’t pass even the low “no reasonable basis” test for fraudulent joinder, and Wages stayed in federal court.
We find the same result in Shepherd – Paulino finished what Adams started, and therefore a claim against the hospital under the Arkansas product liability statute doesn’t exist:
For a claim to be governed by the Medical Malpractice Act, the alleged injury must be a “medical injury.” “[T]o constitute a ‘medical injury’ under the Medical Malpractice Act, the injury must be the result of (1) a professional service, 2) a doctor’s treatment or order, or (3) a matter of medical science.” Paulino . . . .
[Plaintiff’s claim] is that [the hospital] “failed to give proper warnings and instructions as to the known risks and benefits associated with the use of the Johnson and Johnson [mesh device].” Assuming that a duty to warn falls on the hospital . . . [that] claim is a medical malpractice claim inasmuch as her injury resulted from professional services rendered by a medical care provider and therefore is a medical injury. . . . All of [plaintiff’s] claims against [the hospital] fall under the Medical Malpractice Act and are therefore barred.
2012 WL 6811076, at *4-5 (citations and footnote omitted).
At least Gunn, the oldest (by one day) and shortest of the three, relied on Adams instead Paulino:
Does the Malpractice Act cover all of the [plaintiff’s] claims against [the hospital]? It does. The Act is written broadly, and anticipates both negligence and strict-liability claims. “Medical injury means any adverse consequences ... resulting from negligence ... in the performance of such services [.]” And a “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.” Adams v. Arthur, 87, 969 S.W.2d 598,615 (1998). The [plaintiffs’] claims are time-barred as to [the hospital] and are therefore dismissed with prejudice.
2012 WL 6811786, at *1 (citations omitted).
It’s hard to blame Bexis for not finding any of the three Eastern District of Arkansas opinions, since all of them were decided after his November 16, 2012 post, but the same cannot be said for Paulino. That’s forty lashes with a wet noodle – and then he has to get his own hog hat. At least it's clear now that hospital strict liability doesn't exist in Arkansas.