Morrison v. Jennings

• Decision Date: 28 April 1997
• Docket Number: No. 96-1453,96-1453
• Citation: 943 S.W.2d 559,328 Ark. 278
• Parties: Tammy MORRISON, Administratrix of the Estate Of Sandra Kay Finsel, Deceased, Appellant, v. Charles A. JENNINGS, M.D., and Munir Zufari, M.D., Appellees.
• Court: Arkansas Supreme Court

Page 559

943 S.W.2d 559

328 Ark. 278

Tammy MORRISON, Administratrix of the Estate Of Sandra Kay Finsel, Deceased, Appellant, v. Charles A. JENNINGS, M.D., and Munir Zufari, M.D., Appellees.

No. 96-1453.

Supreme Court of Arkansas.

April 28, 1997.

Charles Karr, James R. Filyaw, Fort Smith, for appellant.

Charles R. Ledbetter, R. Ray Fulmer, J. Michael Cogbill, Fort Smith, for appellee, Munir Zufari, M.D.

CORBIN, Justice.

Appellant Tammy Morrison, Administratrix of the Estate of Sandra Kay Finsel, appeals the order of the Sebastian County Circuit Court, Greenwood District, granting summary judgment to Appellees Dr. Charles A. Jennings and Dr. Munir Zufari and dismissing with prejudice her wrongful-death action against them. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(1), (15), and (17) (as amended by per curiam July 15, 1996). Appellant raises five points for reversal. We find no error and affirm.

Facts and Procedural History

The following facts are provided in Appellant's initial complaint filed on July 11, 1994. On April 15 and 18, 1992, Appellee Dr. Zufari saw the decedent in his clinic in Mansfield, Arkansas, for pain in her back, pain and discomfort in her chest which radiated to her back, shortness of breath, and numbness in her arms. The decedent was subsequently admitted to the Crawford Memorial Hospital in Van Buren, Arkansas, on April 27, 1992, where she underwent surgery on her gallbladder, a laparoscopic cholecystectomy, performed by Dr. Zufari the following day. On April 29, 1992, the decedent was discharged from the hospital, but, for unknown reasons, Dr. Zufari did not dictate his discharge summary of the patient until August 30, 1992. The decedent was admitted to St. Edward Mercy Medical Center in Fort Smith, Arkansas, by Dr. Zufari on May 2, 1992, and subsequently discharged on May 8, 1992. The decedent was later readmitted to St. Edward Mercy Medical Center on May 12, 1992, where she remained until her death on July 11, 1992.

Appellant alleged in her first complaint that during the decedent's hospitalization at St. Edward Mercy Medical Center, it was discovered that she had suffered at least two heart attacks prior to and at the time of her gallbladder surgery by Dr. Zufari. Appellant alleged that Dr. Zufari was negligent in his care of the decedent, thus, causing her wrongful death. None of the above-referenced dates contained in Appellant's complaints were disputed by Dr. Zufari.

An amended complaint was filed on August 26, 1994, naming Appellee Dr. Jennings as a defendant. Specifically, Appellant alleged that the decedent was seen by Dr. Jennings on April 27, 1992, for consultation, and that Dr. Jennings had cleared her for surgery. Appellant alleged that Dr. Jennings was negligent in his care of the decedent. In his answer, Dr. Jennings admitted that he did see the decedent on that date and that he issued a consultation report. None of the relevant dates in the amended complaint were disputed by Dr. Jennings.

On March 7, 1996, Appellees moved separately for summary judgment on the ground that Appellant's claim was barred by the two-year statute of limitations applicable to medical malpractice actions as provided in Ark.Code Ann. § 16-114-203 (Cum.Supp.1991).

In her response, Appellant argued that summary judgment was not appropriate for several reasons, including the following: (1) The claims of the decedent and Ashley Finsel, the decedent's minor heir, were preserved by the general savings clause; (2) the Medical Malpractice Act is special legislation in violation of Amendment 14 of the Arkansas Constitution; (3) the statute of limitations for medical malpractice claims as applied in wrongful-death actions denies equal protection of the law in violation of both the Arkansas and United States Constitutions; (4) the statute of limitations did not begin to run against Dr. Zufari until he dictated his discharge summary on August 30, 1992; and (5) this court's opinion in Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996), should not be followed or should, in the alternative, be overruled.

On March 28, 1996, after both motions for summary judgment, as well as Appellant's response thereto, had been filed, Appellant filed a second amended complaint, this time alleging that Dr. Zufari had fraudulently concealed his negligence. The Appellant alleged that by not dictating his discharge summary until after the decedent's death, and by including in that summary a statement referencing Dr. Jennings's report, which Dr. Zufari allegedly knew to be false, Dr. Zufari had fraudulently concealed his negligence. Appellant alleged that because Dr. Zufari knew that the statement by Dr. Jennings was false, its inclusion in his report constituted fraudulent concealment of his own negligence in the care and treatment of the decedent.

In an order filed August 19, 1996, the trial court granted summary judgment to both Appellees on the bases that there were no genuine issues of material fact left to be resolved and that Appellant's cause of action was barred by the statute of limitations. The trial court's order reflected that the cause of action was dismissed with prejudice. This appeal followed.

Standard of Review

Summary judgment is to be rendered only in those instances where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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." ARCP Rule 56(c); Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pastchol, 326 Ark. 140, 929 S.W.2d 713. On appeal, we view all proof submitted in a light most favorable to the non moving party, with any doubts or inferences resolved against the moving party. Id.

Ashley Finsel's Claim

Appellant contends that her claim was not barred by the statute of limitations because Ashley Finsel's claim could not be barred until she reached the age of twenty-four years as provided in Ark.Code Ann. § 16-56-116(a) (1987). Ashley, who was eight years old at the time of the decedent's death, is the decedent's minor granddaughter of whom the decedent was legal guardian up to the time of her death, when Appellant was appointed as Ashley's guardian. Appellant does not contend that the suit instituted below was filed by her in her capacity as legal guardian of Ashley. Rather, it is evident from the pleadings that Appellant brought this suit in her capacity as administratrix of the decedent's estate. Thus, because Ashley is not a party to the suit, we do not reach the merits of this argument. See ARCP Rule 17(b); Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).

Special Legislation

Appellant argues that the Medical Malpractice Act is special legislation in violation of Amendment 14 to the Arkansas Constitution. Appellant raised this argument below in her response to Appellees' motions for summary judgment. We do not reach the merits of this claim, as it is evident from the abstract that Appellant did not obtain a ruling from the trial court on this issue. In its order, the trial court merely stated that there was no genuine issue of material fact and that the claim was barred by the statute of limitations. Such a ruling does not sufficiently address Appellant's constitutional claim. This court has repeatedly stated that the failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes a review of the issue on appeal. See, e.g., Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996); Technical Servs. of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995); Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994).

Equal Protection

Appellant argues that our application of the two-year medical malpractice statute of limitations to wrongful-death actions violates notions of due process and equal protection under the federal and state constitutions. Appellant additionally argues that such application also violates the "open court" provision contained in Article 2, Section 13, of the Arkansas Constitution, which provides that all persons are entitled to a certain remedy in the law and ought to be able to obtain justice freely.

Appellant raises her argument concerning this state's "open court" policy for the first time on appeal and, as such, we do not address it. Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). We also decline to address the merits of Appellant's equal protection and due process argument for two reasons. The first reason is that the abstract does not reflect that Appellant ever obtained a ruling on her constitutional argument from the trial court. As previously stated, we do not reach issues not ruled upon below, even constitutional issues.

The second reason we do not address this argument is that Appellant lacks standing to raise this issue because she is not a member of the class of persons she claims will be deprived of due process and equal protection of the law, namely those persons with claims on behalf of persons who died as the result of a medical injury more than two years from the date of the injury. In order for a litigant to have standing to challenge the constitutionality of a law, it must be unconstitutional as applied to him. Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991). The general rule is that one must have suffered injury or belong to a class which is prejudiced in order to have standing to challenge the validity of a law. Id. Constitutional rights are personal rights and may not be raised by a third party, although there is a narrow exception for cases in which the issue would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the...