Dawson v. Gerritsen

• Decision Date: 11 April 1988
• Docket Number: No. 87-215,87-215
• Citation: 295 Ark. 206,748 S.W.2d 33
• Parties: Donnie Wayne DAWSON et al., Appellants, v. Roy GERRITSEN M.D. et al., Appellees.
• Court: Arkansas Supreme Court

Page 33

748 S.W.2d 33

295 Ark. 206

Donnie Wayne DAWSON et al., Appellants, v. Roy GERRITSEN M.D. et al., Appellees.

No. 87-215.

Supreme Court of Arkansas.

April 11, 1988.

Robert G. Gilder, Southaven, Miss., W. Frank Morledge, Forrest City, for appellants.

Ted Mackall, Jr., West Memphis, for appellees.

HAYS, Justice.

This is a second appeal by Donovan Dawson involving claims arising from the death of Mary Francis Dawson. Mrs. Dawson died intestate on October 7, 1983, the day after surgery was performed by Dr. Roy Gerritsen at Baptist Memorial Hospital, Forrest City. She was survived by her husband, Donovan Dawson, and by two minor sons, Donnie Wayne Dawson and Timothy Oliver, the latter from an earlier marriage. Mr. Dawson was appointed administrator of the estate and on October 1, 1985, he filed a wrongful death action on behalf of the heirs against Dr. Gerritsen and Baptist Memorial Hospital. The complaint specifically included the causes of action of the minor sons of Mrs. Dawson.

The defendants moved to dismiss the complaint for failure to give sixty days notice in writing of an intent to sue, as required by Section 5 of Act 709 of 1979, codified as Ark. Code Ann. § 16-114-204 (1987) [Ark.Stat.Ann. § 34-2617 (Supp.1985) ]. Recognizing the omission, the administrator took a voluntary nonsuit on December 5, 1985, and a few days later filed an identical complaint, again omitting the notice requirement. When the complaint was again dismissed by the trial court for failure to give notice, Dawson appealed and we affirmed, rejecting Dawson's contentions that the notice provision operated as a denial of due process, was special legislation, and that the complaint and summons received by the defendants in the first suit served as the written notice of an intention to sue the second time. See Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986).

While the first case was under submission on appeal, another wrongful death action was filed on October 6, 1986, more than two years, but less than three years from the death of Mrs. Dawson. This is the case now before us on appeal. The action was brought on behalf of the minor sons by their fathers as next friend, by Donovan Dawson on behalf of Donnie Wayne, and by Elton Oliver on behalf of Timothy. It is undisputed that the written notice of intent to sue was given more than sixty days prior to the filing of the complaint in this case. Both defendants moved for summary judgment, which was granted, and the plaintiffs have appealed. We affirm the trial court.

Appellants contend that under Ark. Code Ann. § 16-56-116 (1987) [Ark.Stat.Ann. § 37-226 (Repl.1962) ] minors have three years after their disabilites are removed in which to bring an action for medical malpractice, that in Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), we held that the cause of action by a minor for medical malpractice was extended by the savings clause contained in § 37-226, even though the period of limitations for bringing an action for medical malpractice generally was limited to two years under Ark.Stat.Ann. § 37-205 (Repl.1962). However, appellants need not rely on § 37-226, as Section 4 of Act 709 [Ark. Code Ann. § 16-114-203 (1987) ] contains its own savings clause, part of which gives minors until age nineteen in which to assert a claim for a medical injury.

Appellants maintain that this is a wrongful death claim rather than a medical injury and is, therefore, subject to the three year period of limitations applicable to wrongful death actions generally under Ark.Stat.Ann. § 27-906 and -907 (Repl.1979), rather than to the two year period provided for in Section 4 of Act 709. That was the issue in Matthews v. Travelers Indemnity Insurance Co., 245 Ark. 247, 432 S.W.2d 485 (1968), where we held that causes of action inuring to the estate of a decedent were subject to the lesser period of two years provided for in § 37-205, but that causes of action for loss of consortium and mental anguish inuring to the next of kin were subject to the three year limitation provided in § 27-906 and -907. The appellees counter that contention by pointing out that Act 709 was enacted well after the Matthews case and provides that "all actions for medical injury shall be commenced within two years after the cause of action accrues," that "the accrual of the cause of action shall be the date of the wrongful act complained of, and no other time," language they interpret as requiring every cause of action for medical injury, including wrongful death, to be brought within two years.

We do not decide whether the legislature intended that actions for wrongful death resulting from medical malpractice be subject to Act 709, because it is clear that the claims of Donnie Wayne Dawson and Timothy Oliver, irrespective of their minority, may not be severed or split from the claims of the estate and next of kin when a personal representative has been appointed. That was precisely the issue in Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564 (1953). Anthony Reed was killed in a traffic accident in Nevada County, Arkansas where his parents lived. An administrator was appointed and a wrongful death action was brought, the complaint alleging that Reed's next of kin were his parents. There was no mention of a wife and minor child residing in California, whose existence was not even known to the administrator. The case was tried, a judgment of $2,500 was awarded the plaintiff against the defendant, and the money was distributed to the parents. When the spouse and minor child brought an action of their own, the trial court sustained the defendant's plea of res judicata and we affirmed, holding that under the language of Ark. Code Ann. § 16-62-102(2)(b) (1987) [Ark.Stat.Ann. § 27-907 (Supp.1985) ], when a personal representative is appointed, that individual is "the only person " who can maintain an action for wrongful death, citing St. Louis-San Francisco Ry, Co. v. Garner, 76 Ark. 555, 89 S.W. 550 (1905), Davis v. Railway Co, 53 Ark. 117, 13 S.W. 801 (1890); St. Louis-San Francisco Ry Co. v. Crick, 182 Ark. 312, ...