Foncannon v. Phico Ins. Co.
| Decision Date | 21 June 2000 |
| Docket Number | No. CIV. 99-3075.,CIV. 99-3075. |
| Citation | 104 F.Supp.2d 1091 |
| Parties | Nelson FONCANNON and Aireen Foncannon, et al. Plaintiffs v. PHICO INSURANCE COMPANY, et al. Defendants |
| Court | U.S. District Court — Western District of Arkansas |
Frank H. Bailey, Bailey Law Firm, Mountain Home, AR, Paul Kavanaugh, Kenner, James & Kavanaugh, Kansas City, MO, for Plaintiff.
Rick T. Beard for Phico Ins. & James Brough Justice, M.D., Mitchell, Williams, Selig, Gates & Woodyard, Little Rock, AR.
Patricia A. Sievers for Asish Kumar Ghosh, M.D., Wright, Lindsey & Jennings, Little Rock, AR.
This is a wrongful death action. Plaintiffs' contend the defendants' medical negligence resulted in the death of their four year old son. Plaintiffs seek to recover damages under Arkansas' Wrongful Death Act.
The case is before the court on the motion for summary judgment filed by Dr. Asish Ghosh. The other defendants, Dr. James Justice and Phico Insurance Company, have filed a motion to adopt Dr. Ghosh's motion. Their request will be granted.
The sole issue raised by this motion is whether the damage provisions of the Arkansas Wrongful Death Act are inconsistent with, and thereby superceded by, the damage provisions of the Arkansas Medical Malpractice Act. If the answer to this question is yes, the Medical Malpractice Act deprives the statutory beneficiaries of the Wrongful Death Act of their right to obtain damages for any wrongful death caused by a medical injury.
On March 5, 1999, Jared Foncannon, a four year old boy, was treated at the Newton County Family Practice Clinic by Dr. James Justice, a pediatrician. Jared had severe stomachache, sore throat, fever of 104~, redness of the right ear, and was lethargic. Dr. Justice diagnosed Jared with an inflamed throat and earache. Dr. Justice ordered an injection, prescribed medicine, and told Jared's parents to take Jared home, put him to bed, and continue to give fluids.
Jared's condition worsened and early the next morning, March 6, 1999, his parents took him to the emergency room at North Arkansas Regional Medical Center in Harrison, Arkansas. Jared was admitted to the hospital for dehydration and his care was turned over to Dr. Asish Ghosh, a pediatrician practicing in Harrison, Arkansas. Shortly after midnight, Jared died.
On October 18, 1999, his parents Nelson and Aireen Foncannon, filed this wrongful death action. Dr. Ghosh, Dr. Justice, and Phico Insurance Company, the liability insurance carrier for North Arkansas Regional Medical Center,1 were named as defendants. The complaint alleges that Jared's death was proximately caused by the negligent care and treatment rendered by the defendants. Jared's parents seek to recover the value of their child's probable future services and damages for the mental anguish they have endured, and will endure in the future, as a result of the death of their son.
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). "Once a party moving for summary judgment has made a sufficient showing, the burden rests with the nonmoving party to set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists." National Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 607 (8th Cir.1999). Where the unresolved issues are primarily legal, rather than factual, summary judgment is particularly appropriate. Crain v. Board of Police Commissioners, 920 F.2d 1402, 1405-06 (8th Cir.1990).
Defendants contend the Arkansas Medical Malpractice Act rather than the Arkansas Wrongful Death Act applies to this case since plaintiffs are seeking compensation for an alleged medical injury. They next argue the Medical Malpractice Act does not allow for the recovery of damages for mental anguish and pecuniary losses experienced by surviving family members, i.e., wrongful death damages. Rather, it is their contention that the Medical Malpractice Act limits plaintiffs' potential recovery to the losses allegedly experienced by the decedent. Since plaintiffs are only seeking to recover for their own mental anguish and pecuniary losses and have not pled a survival cause of action,2 defendants contend they are entitled to judgment on all of the plaintiffs' claims.
To allow recovery of wrongful death damages in a medical malpractice case would, defendants contend, conflict with the plain language of the damages provisions in the Medical Malpractice Act. Defendants, while recognizing that an unpublished decision of a state trial court is not binding, points out that the Pulaski County Circuit Court, the Honorable Judge David Bogard presiding, has adopted the various arguments put forth by the defendants here. Holderfield v. Beverly Enterprises, et al., Case No. CV 99-2383 (April 27, 2000). Specifically, Judge Bogard ruled that "the beneficiaries of one who has died as a result of alleged medical malpractice are unable to recover damages for their own mental anguish and pecuniary losses."
In opposition, plaintiffs argue the Medical Malpractice Act does not repeal the Wrongful Death Act or limit the damages provided therein. If the court finds merit in defendants' argument, plaintiffs state the ability of the heirs to sue for the death of a family member under the Wrongful Death Act would be dependent upon the circumstances of the injured person's death. Plaintiffs suggest application of this rule could produce ludicrous results. For instance, plaintiffs point out that under defendants' theory, if a doctor negligently operates an automobile and a child dies, the child's family may sue for wrongful death and recover damages. However, if the doctor negligently treats a child as a patient and the child dies, the child's family may not recover damages for the wrongful death.
Plaintiffs contend these two distinct outcomes are not permissible. Adoption of the defendants' construction of the Medical Malpractice Act, would, in plaintiffs' view, render it unconstitutional under both the Equal Protection and Due Process Clauses of United States Constitution and impair their fundamental right of access to the courts. Further, plaintiffs argue that Arkansas rules of statutory construction do not support the defendants' argument.
The Arkansas Medical Malpractice Act, Ark.Code Ann. § 16-114-201 et seq. (1987), is a "comprehensive act enacted for the purpose of governing actions for medical injury." Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). By its terms, it "applies to all causes of action for medical injury accruing after April 2, 1979, and, as to such causes of action, shall supersede any inconsistent provision of law." Ark. Code Ann. § 16-114-202. An "action for medical injury" is "any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury." Ark.Code Ann. § 16-114-201(1).
The term "medical injury" is defined, in relevant part, as "any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider." Ark.Code Ann. § 16-114-201(3). The term "medical care provider" includes physicians, hospitals, and clinics. Ark.Code Ann. § 16-114-201(2).
With respect to damages, § 16-114-208 provides as follows:
(a)(1) The damages awarded may include compensation for actual economic losses recognized by law suffered by the injured person by reason of medical injury including, but not limited to, the cost of reasonable and necessary medical services, rehabilitation services, custodial care, loss of services, and loss of earnings or earning capacity;
(2) The damages awarded may include compensation for pain and suffering and other noneconomic loss recognized by law;
(b) In the event of a verdict for the plaintiff, the finder of fact shall separately state its awards for both past and future economic losses and for both past and future noneconomic losses;
(c)(1) In the event of a judgment for the plaintiff, if the award for future damages exceeds one hundred thousand dollars ($100,000) the court may, at the request of either party, order that the future damages of the injured person exceeding one hundred thousand dollars ($100,000) be paid in whole, or in part, by periodic payments as determined by the court, rather than by lump sum payment, on such terms as the court deems just and equitable.
(2) As a condition to authorizing periodic payments of future damages, the court may order a judgment debtor who is not adequately insured to post security adequate to assure full payment of such damages.
(3) In the event of the death of the injured person prior to completion of installment payments of principal and interest upon motion of any party in interest, the court shall modify the order by deducting from the remaining balance the amount representing unpaid compensation for future pain and suffering and future expenses of care and by ordering the remainder to be paid into and become a part of the estate of the decedent.
The Arkansas Wrongful Death Statute creates a cause of action which arises if death was caused by a wrongful act. Ark. Code Ann. § 16-62-102 (1987). The beneficiaries of the action may recover compensation for pecuniary injuries and mental anguish resulting from the death. Ark. Code Ann. § 16-62-102(f).
The Arkansas courts have considered the interaction between these two acts on a number of occasions. In Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), the court was asked...
To continue reading
Request your trial
-
Bell v. Tri-County Metro. Transp. Dist. of Or., Corp.
...a wrongful death action seeks to recover damages to beneficiaries resulting from a decedent's death. See, e.g., Foncannon v. Phico Ins. Co., 104 F.Supp.2d 1091 (W.D.Ark.2000); Kaufman v. Cserny, 856 F.Supp. 1307 (S.D.Ill.1994); Shield v. Bayliner Marine Corp., 822 F.Supp. 81 (D.Conn.1993). ......
-
McMullin v. U.S.
...decision in Meredith v. Buchman, 101 F.Supp.2d 764 (E.D.Ark.2000) and Judge Franklin Waters' decision in Foncannon v. Phico Insurance Co., 104 F.Supp.2d 1091 (W.D.Ark.2000). The Court agrees with Judge Wilson's statement in Meredith that, "Repeal by implication is not a favored device in ou......
-
Day ex rel. Wrongful Death Beneficiaries Deweese v. United States
...v. United States, 515 F.Supp.2d 914 (E.D. Ark. 2007); Meredith v. Buchman, 101 F.Supp.2d 764(E.D. Ark. 2000); Foncannon v. Phico Insurance Co., 104 F.Supp.2d 1091 (W.D. Ark. 2000)." (Dkt. No. 68, at 14). In its initial supplemental brief, the government acknowledges those cases and agrees t......