McCoy v. Montgomery

• Decision Date: 21 June 2007
• Docket Number: No. 06-1243.,06-1243.
• Parties: Dr. Mark McCOY, M.D.; and Cooper Clinic, P.A., Appellants, v. Paul MONTGOMERY, Carolyn Montgomery, and St. Edward Mercy Medical Center, Appellees.
• Court: Arkansas Supreme Court

259 S.W.3d 430

370 Ark. 333

Dr. Mark McCOY, M.D.; and Cooper Clinic, P.A., Appellants, v. Paul MONTGOMERY, Carolyn Montgomery, and St. Edward Mercy Medical Center, Appellees.

No. 06-1243.

Supreme Court of Arkansas.

June 21, 2007.

Ledbetter, Cogbill, Arnold & Harrison, LLP, by: J. Michael Cogbill and Rebecca D. Hattabaugh, Fort Smith, AR, for appellant Cooper Clinic, P.A.

Bassett Law Firm, by: Dale Garrett, Fayetteville; Womack, Landis, Phelps, NcNeill & McDaniel, P.A., by: Paul D. McNeill and Mark Mayfield, Jonesboro, AR, for appellant D. Mark McCoy, M.D.

McDaniel & Wells, P.A., by: Bobby McDaniel, Jonesboro, AR; John Burnett, Albuquerque, NM; Rex W. Chronister, Fort Smith; and Eubanks, Baker & Schulze, by: J.G. "Gerry" Schulze, Little Rock, AR, for appellees.

JIM GUNTER, Justice.

This appeal arises from a jury verdict in Sebastian County Circuit Court finding Appellant, Dr. Mark McCoy, negligent in treating Appellee Paul Montgomery for peripheral vascular disease. We affirm the jury's findings.

Statement of the Case

Montgomery was referred to McCoy by his family physician after complaining, of calf pain. McCoy saw Montgomery on June 15, 1998, and diagnosed Montgomery as having peripheral vascular disease. On June 25, 1998, Dr. Timothy A. Waack, a cardiologist, performed a Persantine nuclear stress test on Montgomery to evaluate the severity of his known coronary artery disease. Waack then scheduled Montgomery for a heart catheterization on June 29, 1998, to be performed by Dr. Riley Foreman. After the catheterization, Foreman believed that there was blockage in the left main artery and blockage of the right coronary artery. On June 30, 1998, McCoy performed coronary artery bypass grafting surgery. On August 17, 1998, Waack ordered cardiac rehabilitation. On August 25, 1998, McCoy performed a femoral-popliteal bypass of the superficial femoral artery on each leg. On October 6, 1998, Montgomery complained of pain in the right leg. An ultrasound located a blood clot, and Dr. Drohlsagen administered clot-busting medication. On November 6, 1998, Montgomery again complained of right leg pain and McCoy performed a thrombectomy to remove the blood clot. On November 22, 1998, Dr. Jane McKinnon identified a blood clot in the left graft. Following an attempt to resolve with medication alone, McKinnon surgically revised the left graft.

Following this surgery, Montgomery traveled to the Texas Heart Institute to see Dr. George Reul. Reul found that the right graft was too long, and had "kinked," and on May 5, 1999, he revised the graft. Approximately a year later, an angiogram revealed a right anastomotic aneurysm. On September 8, 2000, Montgomery had a bypass from the aorta to the femoral artery. Reul performed thrombectomies on May 12, 2001, and December 16, 2002. On March 10, 2003, Reul amputated Montgomery's right leg above the knee.

On June 29, 2003, Montgomery, and his wife, Carolyn Montgomery, filed suit, claiming medical malpractice in the heart and leg treatment against McCoy, Foreman, Waack, Cooper Clinic, P.A., and St. Edward Mercy Medical Center. On February 7, 2003, the court entered an order granting Montgomery's motion for voluntary non suit as to the defendants, Foreman, Waack, and Cooper Clinic. On August 21, 2003, the court entered an order granting Montgomery's motion for voluntary nonsuit as to the defendants, McCoy and St. Edward Mercy Medical Center.

On November 25, 2003, the Montgomerys refiled the action, relying on Ark.Code Ann. § 16-56-126 (1987). McCoy filed a motion to dismiss, arguing that the Montgomerys could not benefit from § 16-56-126. On April 15, 2004, the court denied McCoy's motion to dismiss and for summary judgment. On February 27, 2006, the Montgomerys amended their complaint to add a claim of punitive damages. McCoy's motions to strike and for a continuance were both denied.

A jury trial was held March 13, 2006 through March 24, 2006. At the conclusion of the evidence, the jury returned a verdict for the Montgomerys on the question of the leg surgery, awarding damages that totaled $2,800,000 in actual damages, $200,000 in loss of consortium damages to Mrs. Montgomery, and an additional $500,000 in punitive damages. The trial court entered judgment pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure, severing St. Edward Mercy Medical Center from this case. On April 19, 2006, McCoy filed a timely notice of appeal. A notice of cross-appeal was filed by the Montgomerys on May 1, 2006, but it has been abandoned on appeal. On November 11, 2006, McCoy petitioned this court for a writ of certiorari to complete the record. We granted his petition on November 16, 2006. McCoy now brings this appeal.

Service

For his first point on appeal, McCoy argues that no timely service was completed, and therefore, the first action against him did not commence. The Montgomerys respond, arguing that service was valid, and when the first action was voluntarily dismissed without prejudice, they were entitled to refile within one year under the Arkansas Savings Statute, codified at Ark.Code Ann. § 16-56-126 (1987).

Rule 3 of the Arkansas Rules of Civil Procedure provides that an action is commenced by filing a complaint with the clerk of the proper court. Bodiford v. Bess, 330 Ark. 713, 956 S.W.2d 861 (1997) (citing Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997)); Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993); and Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991)). However, effectiveness of the commencement date is dependent upon meeting the requirements of Ark. R. Civ. P. 4(i), which provides in pertinent part:

(i) Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause...

Id. (emphasis added). Rule 4(i) must be read in light of other procedural rules, such as the statute of limitations. Id. For example, the dismissal without prejudice language [in Rule 4(i)] does not apply if the plaintiff's action is otherwise barred by the running of a statute of limitations. The touchstone for a limitations defense to a tort action is when the cause of action was commenced. Id.

Pursuant to section 16-56-126, a plaintiff may commence a new action within one year after suffering a nonsuit. Posey v. St. Bernard's Healthcare, Inc., 365 Ark. 154, 226 S.W.3d 757 (2006). However, we have recognized that failure to comply with the service requirements of Rule 4(i) results in a failure to commence the action so as to effectuate the one-year savings provision provided in section 16-56-126. Id. See also Green, 304 Ark. 484, 803 S.W.2d 536. Even though this court has interpreted the savings statute liberally, applying it in cases where a timely, completed attempt at service was later held to be invalid, we have specifically held that service of process must, at least, be timely attempted in order for the action to be deemed to have commenced so that the savings statute will apply. Id. (citing Forrest City Mach.Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993)). In Posey, the plaintiffs admitted that they did not attempt to comply with the service of process requirements of Rule 4; therefore, we held that they could not avail themselves of the protections of the savings statute in an attempt to refile their cause of action.

In Lyons, the plaintiff effected the commencement date of filing his complaint for limitation purposes by completing service on the defendant. The trial court eventually dismissed Lyons's action because of improper service. Nonetheless, we held that dismissal did not bar Lyons from later refiling his suit. Id. We stated that our interpretation of § 16-56-126 met with the liberal and equitable construction which must be given it in order to give litigants a reasonable time to renew their cause of action when they are compelled to abandon it as a result of their own act or the court's. Id.

With this precedent in mind, we turn to the present case. Here, the Mongomerys attempted service on McCoy. The return receipt was signed by Julie Cossar, McCoy's secretary. The circuit court found that the Montgomerys complied with the requirements of Rule 4(e) and Rule 4(d)(8)(a) in that service of summons and complaint upon McCoy were sent by mail addressed to McCoy, return receipt requested and delivery restricted to McCoy or his agent. The circuit court's order stated:

The Court notes that [McCoy] now asserts that Julie Cossar, who signed the certified mail document, was not his agent. However, [McCoy] does not acknowledge who his agent was. The Court further notes that it is common practice for physicians to appoint an agent to receive papers for him so they will not have to be interrupted while examining patients, engaging in surgery or other aspects of their medical practice. The Court further notes that [the Montgomerys] not only served [McCoy] by certified mail, return receipt requested, restricted delivery, they further sent interrogatories certified mail, return receipt requested, restricted delivery and the same person within [McCoy's] office signed for these documents as [McCoy's] agent also. Based upon the totality of the circumstances, specifically the two separate notifications to [McCoy] signed by the same "agent," the Court is of the opinion that [the Montgomerys have] complied with the requirements of Rule 4(d)(8)(a) and Rule 4(e) and therefore service upon [McCoy] is valid service.

Unlike the circumstances in Posey, where we held that the savings statute did not apply because the plaintiffs did not even attempt service, or in Lyons, where we found that the savings statute did apply even though...