Broussard v. St. Edward Mercy Health Sys., Inc.

• Decision Date: 19 January 2012
• Docket Number: No. 11–561.,11–561.
• Citation: 386 S.W.3d 385,2012 Ark. 14
• Parties: Teresa L. BROUSSARD, Appellant v. ST. EDWARD MERCY HEALTH SYSTEM, INC. d/b/a St. Edward Mercy Medical Center Sisters of Mercy Health System, St. Louis, Inc.; Dr. Stephen Seffense; Dr. Michael Coleman, Jr.; Mary Brewer; Tony McClory; Gayla Patterson; Jim Self; Jane Does Nos. 1–5; and John Does Nos. 1–5, Appellees.
• Court: Arkansas Supreme Court

2012 Ark. 14

386 S.W.3d 385

Teresa L. BROUSSARD, Appellant

v.ST. EDWARD MERCY HEALTH SYSTEM, INC. d/b/a St. Edward Mercy Medical Center Sisters of Mercy Health System, St. Louis, Inc.; Dr. Stephen Seffense; Dr. Michael Coleman, Jr.; Mary Brewer; Tony McClory; Gayla Patterson; Jim Self; Jane Does Nos. 1–5; and John Does Nos. 1–5, Appellees.

No. 11–561.

Supreme Court of Arkansas.

Jan. 19, 2012.

Held Unconstitutional

West's A.C.A. § 16–114–206(a).

Baker Schulze & Murphy, by: J.G. “Gerry” Schulze, Little Rock, for appellant.

Ledbetter, Cogbill, Arnold & Hsrrison LLP, by: J. Michael Cogbill and Rebecca D. Hattabaugh, Fort Smith, for appellee St. Edward Mercy Health System, Inc.

Conner & Winters, LLP, by: Alan G. Wooten and Vicki Bronson, Fayetteville, for appellees Dr. Stephen Seffense and Dr. Michael Coleman, Jr.

JIM HANNAH, Chief Justice.

Teresa L. Broussard appeals a decision of the Sebastian County Circuit Court entering summary judgment in favor of St. Edward Mercy Medical Center, Dr. Michael Coleman, Jr., and Dr. Stephen Seffense. Broussard asserts that the trial court erred in finding Arkansas Code Annotated section 16–114–206 (Repl.2006) constitutional. More specifically, Broussard argues that the requirement in section 16–114–206(a) that proof in medical-malpractice cases must be made by expert testimony by “medical care providers of the same specialty as the defendant” violates section 3 of amendment 80. We hold that the provisions in section 16–114–206(a), which provide that expert testimony may only be given by “medical care providers of the same specialty as the defendant,” violate the separation-of-powers doctrine, amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(1) (2011).

On April 25, 2006, Dr. Seffense performed a parathyroidectomy on Broussard. After her surgery, Broussard developed what she believed to be a burn located near the surgical site.¹ Broussard experienced swelling and pain at the site. She believed that part of the pain was related to the surgery and that part was due to the burn. Broussard was released from the hospital on May 1, 2006. At that time, according to Broussard, the swelling had partially gone down, but the redness in the tissue remained. Broussard described the tissue at the incision as tough and leathery, and she said that black and purplish lines soon appeared that increased in size over time. She went to the emergency room on May 7, 2006, due to pain from the burn, but she was admitted for hypocalcemia and hyperkalemia, conditions related to renal failure. During this second hospitalization, Broussard was under the care of her nephrologist, Dr. Coleman, Jr. While in the hospital under Dr. Coleman, Jr.'s care, Broussard sought and obtained a consultation with a dermatologist regarding the burn. According to Broussard, she was told that the condition at her neck and upper chest would improve and that the damaged skin would slough off and heal. She remained in the hospital at St. Edward on this occasion until May 15, 2006.

Ultimately, a black eschar (dead and sloughing tissue) developed at her neck and chest. On May 18, 2006, Broussard was admitted to the Hillcrest Burn Center in Tulsa, Oklahoma. There, she underwent removal of “pigskin” and received skin grafts.

Broussard sued St. Edward Mercy Health System, Inc., d/b/a St. Edward Mercy Medical Center Sisters of Mercy Health System, St. Louis, Inc., Dr. Seffense, Dr. Coleman, Jr., and the nurses and technicians present in the operating room. While Broussard's notice of appeal indicates that she is appealing summary judgment entered in favor of St. Edward, she has limited her arguments on appeal to the alleged liability of Dr. Seffense and Dr. Coleman, Jr. She has, therefore, abandoned all claims on appeal except those against Dr. Seffense and Dr. Coleman, Jr.

The circuit court decided the constitutionality of section 16–114–206(a) in the context of a motion for summary judgment. Generally, in reviewing the grant of a motion for summary judgment, the appellate court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. DaimlerChrysler Servs. N. Am., LLC v. Weiss, 360 Ark. 188, 192–93, 200 S.W.3d 405, 407 (2004). However, this summary-judgment motion was decided based on the circuit court's decision on the constitutionality of section 16–114–206(a). The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. DaimlerChrysler, 360 Ark. at 193, 200 S.W.3d at 407.

The circuit court found section 16–114–206(a) constitutional in that it “establishes substantive law regarding the duty of a plaintiff to produce an expert witness with a requisite level of knowledge, skill, experience, training, or education and ... sets forth the procedure that governs when such a qualified witness may testify.” The circuit court further stated that “[a]n expert of the same specialty could state definitively what a general surgeon and nephrologist should have done with respect to the standard of care pursuant to such a state of facts such as are presented here.” Broussard asserts that the circuit court erred because section 16–114–206(a) sets a rule of procedure in violation of the separation-of-powers doctrine and section 3 of amendment 80.

Every statute enjoys a presumption of constitutionality. Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, at 4, 308 S.W.3d 135, 139. The party asserting that a statute is unconstitutional bears the burden of demonstrating that the statute violates the constitution. Id., 308 S.W.3d at 139. Any doubt is resolved in favor of constitutionality. Id., 308 S.W.3d at 139. Further, when possible, a statute will be construed so that it is constitutional. Id., 308 S.W.3d at 139. When construing a statute, we interpret the statute to give effect to the intent of the General Assembly. Id., 308 S.W.3d at 139. We determine legislative intent from the ordinary meaning of the language used where the language of the statute is plain and unambiguous. Id., 308 S.W.3d at 139. Words in the statute are given their ordinary and usually accepted meaning in common language. Id., 308 S.W.3d at 139.

Section 16–114–206(a) provides as follows:

(a) In any action for medical injury, when the asserted negligence does not lie within the jury's comprehension as a matter of common knowledge, the plaintiff shall have the burden of proving:

(1) 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;

(2) 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

(3) 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.

Arkansas Code Annotated § 16–114–206(a) (emphasis added). The parties agree that at least some issues in this case do not lie within the jury's comprehension as a matterof common knowledge and that expert testimony is required to assist the trier of fact in understanding the evidence and determining facts in issue. Therefore, expert testimony is necessary in the trial of this case. SeeArk. R. Evid. 702.

According to the circuit court, the phrase “a medical care provider of the same specialty as the defendant” is constitutional because it constitutes substantive law setting out the burden of proof. Substantive law “creates, defines, and regulates the rights, duties, and powers of parties.” Johnson, 2009 Ark. 241, at 8, 308 S.W.3d at 141 (quoting Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 419–20 (2007)). In contrast, procedural law prescribes “the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” Id., 308 S.W.3d at 141 (quoting Summerville, 369 Ark. at 237, 253 S.W.3d at 419–20). Procedural matters lie solely within the province of this court. Id., 308 S.W.3d at 141. The General Assembly lacks authority to create procedural rules, and this is true even where the procedure it creates does not conflict with already existing court procedure. Id., 308 S.W.3d at 141.

Section 16–114–206 purports to set out the burden of proof that must be met to prevail in a medical-malpractice action. A burden of proof defines and regulates the party's right to recovery and, therefore, constitutes substantive law. See, e.g., United States v. Davis, 125 F.Supp. 696 (W.D.Ark.1954). Pursuant to section 16–114–206(a), where asserted medical negligence lies outside the jury's comprehension as a matter of common knowledge, the plaintiff's burden of proof is to show by testimony of “a medical care provider of the same speciality as the defendant,” the standard of care for the same type of practice in the same or a similar locality, that the standard was breached, and that as a proximate cause of that breach the plaintiff was injured. However, the phrase at issue, “[b]y means of expert testimony provided only by a medical care provider...