Martin v. Arthur

• Decision Date: 11 November 1999
• Docket Number: No. 99-302.,99-302.
• Citation: 339 Ark. 149,3 S.W.3d 684
• Parties: Gerlinda MARTIN and Earl E. Martin v. James ARTHUR, M.D., Allan C. Gocio, M.D., and Hot Springs Neurosurgery Clinic, P.A., and Calcitek, Inc.
• Court: Arkansas Supreme Court

3 S.W.3d 684

339 Ark. 149

Gerlinda MARTIN and Earl E. Martin v. James ARTHUR, M.D., Allan C. Gocio, M.D., and Hot Springs Neurosurgery Clinic, P.A., and Calcitek, Inc.

No. 99-302.

Supreme Court of Arkansas.

November 11, 1999.

Wise Law Firm, by: George R. Wise, Jr., Little Rock, for appellant.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Lyn P. Pruitt and Mark N. Halbert, Little Rock, for appellee Calcitek, Inc.

Friday, Eldredge & Clark, by: William M. Griffin III and Jason B. Hendren, Little Rock, for appellees James Arthur, M.D., Allan Gocio, M.D., and Hot Springs Neurosurgery Clinic, P.A.

ROBERT L. BROWN, Justice.

Appellants Gerlinda Martin and Earl E. Martin, who are wife and husband, appeal the trial court's order of summary judgment in favor of appellees James Arthur, M.D., Allan Gocio, M.D., and Hot Springs Neurosurgery Clinic, P.A., and the order of dismissal in favor of appellee Calcitek, Inc. The Martins contend that the trial court erred in not acknowledging that fraud and fraudulent concealment had tolled the medical malpractice statute of limitations in the case of the physicians and clinic and that the trial court further erred in finding that the product liability statute of limitations had run in the case of Calcitek. We affirm the order of summary judgment relating to the physicians and the clinic. We reverse the trial court's order with respect to Calcitek and remand for further proceedings.

On December 5, 1991, Gerlinda Martin underwent a cervical spine fusion. Dr. Gocio, with the assistance of Dr. Arthur, performed the surgery and used a hydroxylapite known as Orthoblock as an artificial ceramic block between her vertebrae. On June 24, 1993, the Orthoblock was surgically removed. On September 17, 1996, the Martins filed a complaint against Doctors Gocio and Arthur and the Neurosurgery Clinic and asserted claims of medical malpractice, battery, fraud, fraudulent concealment, outrage, and loss of consortium, all in connection with the 1991 implantation of the Orthoblock. They alleged that Orthoblock was a bone graft substitute used in dental procedures and was experimental when used in cervical fusions. They also claimed that Calcitek, the manufacturer and supplier of Orthoblock, knew or should have known that its product was being used in back operations. They further asserted that Orthoblock was brittle and fractured easily and, as a result, was defective and unreasonably dangerous for use in cervical fusions.

Doctors Gocio and Arthur and the clinic moved for summary judgment on the grounds that the negligence suit against them was barred by the statute of limitations. Calcitek also moved to dismiss the Martins' complaint because the limitations period had run. The trial court granted both motions in separate orders. The Martins appealed the trial court's orders to the court of appeals, and that court affirmed. Martin v. Arthur, 65 Ark.App. 276, 986 S.W.2d 143 (1999). On April 15, 1999, this court granted the Martins' petition for review.

I. Medical Malpractice

The Martins first urge that fraud and fraudulent concealment should have tolled the statute of limitations with respect to the claims against Doctors Gocio and Arthur and the clinic, including medical malpractice. Primarily, they contend that fact questions remain to be resolved concerning the alleged fraudulent concealment perpetrated by Dr. Gocio, who failed to inform Gerlinda Martin of the risk involved in the Orthoblock implantation. They assert that he was, in fact, conducting an experimental procedure by implanting Orthoblock in her spine. According to the Martins, he never told her that he was using Orthoblock.

When this court grants review following a decision by the court of appeals, we review the case as if it had been originally filed in our court. See Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). The issue in this case is whether the trial court erred in granting summary judgment to the physicians and the clinic. In Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998), this court stated the standard of review for a grant of summary judgment:

The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh'g, 332 Ark. 189, 961 S.W.2d 712 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

Adams, 333 Ark. at 62, 969 S.W.2d at 602.

We then discussed the statute of limitations defense:

When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), cert. denied, 510 U.S. 908, 114 S.Ct. 290, 126 L.Ed.2d 239 (1993). However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id. Fraud suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. First Pyramid, supra. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995).

Adams, 333 Ark. at 63, 969 S.W.2d at 602-603.

Following these discussions, we proceeded in Adams to address what constitutes fraudulent concealment. In order to toll the statute of limitations, we said that the plaintiffs were required to show something more than a continuation of a prior nondisclosure. We said that there must be evidence creating a fact question related to "some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed, or perpetrated in a way that it conceals itself." Adams, 333 Ark. at 68, 969 S.W.2d at 605, quoting Norris v. Bakker, 320 Ark. 629, 633, 899 S.W.2d 70, 72 (1995).

In the case before us, Gerlinda Martin submitted an affidavit in opposition to summary judgment in which she enumerated her bases for claiming fraud. In examining the twenty assertions she makes, we conclude that they all related to a failure of the physicians and clinic to inform or disclose. None of the points rise to the level of a positive act of fraud. Rather, they represent and support a continuation of prior nondisclosure which we made clear in Adams is insufficient to raise a fact question relative to fraudulent concealment.

We affirm the trial court's grant of summary judgment.

II. Product Liability

The Martins next claim that a fact issue exists regarding when Gerlinda Martin knew that she was harmed by Orthoblock. According to their theory, the date of the Orthoblock implantation in 1991 should not be the starting point for the running of the statute of limitations. They contend that the statute should start to accrue when she learned the nature of the harm that had been done to her. We agree.

We review a trial court's decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. See Efurd v. Hackler, 335 Ark. 267, 983 S.W.2d 386 (1998). A trial court need only look to the allegations in the complaint to decide a motion to dismiss. Id. In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint. See Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998).

The statute of limitations for product liability actions reads: "All product liability actions shall be commenced within three (3) years after the date on which the death, injury, or damage complained of occurs." Ark.Code Ann. § 16-116-103 (1987). Relying on this statute, the trial court found:

6. Because Plaintiffs complain of alleged damage caused by improper implantation of "Orthoblocks," any cause of action for personal injury began to accrue as of the date of surgery in December 1991.

7. Therefore, the filing of Plaintiffs' cause of action on September 17, 1996, was outside the applicable three year statute of limitations for products liability actions.

8. The Court also finds that Plaintiffs' cause of action is not saved by the "discovery rule" as the Arkansas Supreme Court has declined to adopt such a rule in products liability cases.

9. Even if Plaintiffs' cause of action for products liability could be tolled by the "discovery rule," Plaintiffs should have known of the alleged damage well before September 17, 1993.

This court has had occasion to discuss the three-year statute of limitations in a product liability case. See Spickes v. Medtronic, Inc., 275 Ark. 421, 631 S.W.2d 5 (1982). In Spickes, a defective pacemaker manufactured by Medtronic was implanted in Spickes in 1975. On October 5, 1977, the pacemaker was removed and...