Myers v. McAdams

• Decision Date: 25 May 2006
• Docket Number: No. 05-1309.,05-1309.
• Citation: Myers v. McAdams, 236 S.W.3d 504, 366 Ark. 435 (Ark. 2006)
• Parties: Frank and Charlotte MYERS, Individually and as Personal Representatives of the Estate of Frankie Myers, Jr., A Deceased Minor, Appellant, v. E. McADAMS, M.D., Searcy Medical Center, P.A., Patricia Pierce, R.N., White County Medical Center and Arkansas Health Group d/b/a Searcy Medical Center/ A Baptist Health Affiliate, Appellee.
• Court: Arkansas Supreme Court

236 S.W.3d 504

Frank and Charlotte MYERS, Individually and as Personal Representatives of the Estate of Frankie Myers, Jr., A DeceasedMinor, Appellant, v.E. McADAMS, M.D., Searcy Medical Center, P.A., Patricia Pierce, R.N., White County Medical Center and Arkansas Health Group d/b/a Searcy Medical Center/ A Baptist Health Affiliate, Appellee.

No. 05-1309.

Supreme Court of Arkansas.

May 25, 2006.

Jacquelyn C. Gregan, Houston, TX, J.G. "Gerry" Schulze, Little Rock, for Appellants.

Joseph E. Kilpatrick, Jr., Little Rock, for Appellee Arkansas Health Group.

R.T. Beard, III, Little Rock, for AppelleeE. McAdams.

Jason B. Hendren, Little Rock, for AppelleesPatricia Pierce, and White County Medical Center.

ANNABELLE CLINTON IMBER, Justice.

AppellantFrank Myers, as administrator of the estate of Frankie Myers, deceased, appeals the White County Circuit Court's grant of summary judgment on a wrongful-death claim.We dismiss this appeal without prejudice because the record reflects neither an adjudication of all claims, nor a proper certification pursuant to Ark. R. Civ. P. 54(b).As the court's order is not final, we have no jurisdiction to hear the appeal.SeeArk. R. Civ. P. 54(b)(2)(2006).

The procedural facts of this case are long and complicated.The record reflects that Frankie Myers was born to Frank and Charlotte Myers on July 9, 1994.While Frankie was still alive, his parents filed a medical-malpractice lawsuit against AppelleesJ.R. Gardner, M.D., E. McAdams, M.D., Searcy Medical Center, P.A., Patricia Pierce, R.N., and White County Memorial Hospital.Frank and Charlotte Myers eventually dismissed the medical-malpractice lawsuit voluntarily.Frankie Myers died on January 15, 2004, nine-and-a-half years after his birth.Thereafter, on September 10, 2004, a complaint was filed by "Frank Myers, Administrator, and Charlotte Myers, as Heirs and Next of Kin of Frankie Myers, a Deceased Minor," against Appellees.¹In that complaint, the Myerses alleged a wrongful-death claim predicated on negligence, but the prayer for damages not only sought wrongful-death benefits, but also sought to recover survival-action damages for the benefit of the decedent's estate.A first amended complaint filed on September 29, 2004, by "Frank Myers, as Administrator of the Estate of Frankie Myers, a Deceased Minor, and Frank and Charlotte Myers, Individually and as Wrongful Death Beneficiaries of Frankie Myers, a Deceased Minor," made similar claims against an additional defendant, Appellee Arkansas Health Group d/b/a Searcy Medical Center/A Baptist Health Affiliate.Once again, the first amended complaint requested damages recoverable in both wrongful-death and survival actions.A second amended complaint was thereafter filed on November 4, 2004, seeking similar damages.

On December 20, 2004, AppelleesPatricia Pierce, R.N., and the White County Medical Center filed a motion for summary judgment, arguing that the claims were time-barred under the applicable statute of limitations.The other appellees subsequently adopted that summary-judgment motion.After a hearing, the circuit court granted summary judgment, dismissing the Myeres' individual claims and the action for wrongful death.From that order, Appellant now appeals.

During the time between the filing of the summary-judgment motion and entry of the order dismissing the individual claims and the action for wrongful death, Appellant filed two other amended complaints.Once again, the third amended complaint filed on March 2, 2005, by "Frank Myers, as Administrator of the estate of Frankie Myers, a Deceased Minor, and Frank and Charlotte Myers, as wrongful death beneficiaries of Frankie Myers, a deceased minor," sought damages for both survival and wrongful-death claims.With the filing of the fourth amended complaint on June 2, 2005, by "Frank and Charlotte Myers, Individually and as Personal Representatives of the Estate of Frankie Myers, Jr., a Deceased Minor,"Appellant made an explicit survival claim under the survival statute, Ark. Code Ann. § 16-62-101(Repl.2006).

Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken only from a final judgment, order, or decree entered by the trial court.Smith v. Smith,337 Ark. 583, 990 S.W.2d 550(1999).Whether a final judgment, decree, or order exists is a jurisdictional issue that this court has the duty to raise, even if the parties do not, in order to avoid piecemeal litigation.Id.Arkansas Rule of Civil Procedure 54(b) states that an order which disposes of fewer than all of the claims of all of the parties is not a final appealable order unless the court makes an express determination that there is a danger of hardship or injustice, which an immediate appeal would alleviate.SeeFreeman v. Colonia Ins. Co.,319 Ark. 211, 890 S.W.2d 270(1995).When the trial court does not make the required certification, the order is not final for appellate purposes.Id.

In the instant appeal, the circuit court granted summary judgment on Appellant's wrongful-death claim, concluding in relevant part:

The individual claims of Frank and Charlotte Myers,² as well as the wrongful death claim pertaining to the deceased minor, are premised upon allegations of medical injury and are therefore governed by the two-year period prescribed by Ark.Code Ann. § 16-114-203(a).

* * * *

Because the wrongful death claim pertaining to the deceased minor was not filed originally until September 10, 2004, over ten years after the alleged medical injury in July 1994, that claim is time-barred as well and is also hereby dismissed with prejudice as to all defendants.In so ruling, the Court finds that the tolling provision applicable to a minor's injury under the Medical Malpractice Act does not apply to a beneficiary's derivative claim in a wrongful death action based upon alleged medical negligence.

(Emphasis added.)The court, however, failed to dispose of the survival claim.Survival and wrongful-death claims are separate and distinct causes of action created by the General Assembly.Survival claims arise under Ark.Code Ann. § 16-62-101:

(a)(1) For wrongs done to the person or property of another, an action may be maintained against a wrongdoer, and the action may be brought by the person injured or, after his or her death, by his or her executor or administrator against the wrongdoer or, after the death of the wrongdoer, against the executor or administrator of the wrongdoer, in the same manner and with like effect in all respects as actions founded on contracts.

(2) Nothing in subdivision (a)(1) of this section shall be so construed as to extend its provisions to actions...