Ofili v. Osco Drug, Inc., 89-237
| Decision Date | 20 November 1989 |
| Docket Number | No. 89-237,89-237 |
| Citation | 300 Ark. 431,780 S.W.2d 11 |
| Parties | Francisca OFILI and Joseph Ofili, Appellants, v. OSCO DRUG, INC., Appellee. |
| Court | Arkansas Supreme Court |
Lynn A. Davis, Little Rock, for appellants.
Wright, Lindsey & Jennings, Little Rock, for appellee.
The issue presented by this case is whether the notice of intent to sue on an action for medical injury (contained in Ark.Code Ann. § 16-114-204 (1987)) is required to be served by certified or registered mail pursuant to the statute. We hold that it is and affirm the trial court's dismissal of the cause of action with prejudice due to the lack of proper service.
On May 1, 1986, the appellant, Francisca Ofili, received a prescription for Indocin (for pain) from her doctor. Her husband, Joseph, took the prescription to appellee, Osco Drug, to be filled; the pharmacist, however, filled the prescription with Imodium (for diarrhea). Mrs. Ofili took the Imodium and suffered ill effects.
On May 6, 1986, she called her doctor to consult him about her medication and, at that time, learned of the error and discontinued taking the Imodium. As a result of the mistake in filling her prescription, Mrs. Ofili filed a lawsuit for medical injury in Pulaski County Circuit Court on January 15, 1988, from which she took a voluntary nonsuit on September 13, 1988. A new complaint was filed on August 30, 1988, which was subsequently dismissed by the trial court with prejudice because notice had not been mailed to Osco Drug, Inc., by either registered or certified mail.
From that decision, Mrs. Ofili appeals on two points of error: 1) that she may waive the service of notice of intent to sue by registered or certified mail, as required by Ark.Code Ann. § 16-114-204 (1987), as a result of affirmative actions by her agents and her attorney, and 2) that the trial court erred in granting Osco Drug's summary judgment as a result of her lack of literal compliance with the statute.
To begin with, § 16-114-204(a) provides in pertinent part that
[n]o action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed.
The object of this legislative statute was to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of malpractice insurance. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).
In regard to Ofili's first point of error, she cites absolutely no authority to support her contention that she may waive the service of notice of intent to sue as a result of affirmative actions by her agents and her attorney. The effect of the statute is for the benefit of any person alleged to be liable in a malpractice action; the legislature unambiguously declared the proper procedure to commence an action of this type to be service, at least sixty days prior to the commencement of the action for medical injury, by certified or registered mail to the last known address of the person allegedly liable.
It is apparent that the benefits and protections embodied in this statute were established for the person alleged to be liable and may not be waived by the person asserting liability. Perhaps Ofili meant to say that Osco Drug had waived the notice requirement. Even so, it is perfectly clear that Osco Drug never effected a waiver in this case. In fact,...
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...medical malpractice provision regarding notice of intent to sue, Cox v. Bard, 302 Ark. 1, 786 S.W.2d 570 (1990); Ofili v. Osco Drug, Inc., 300 Ark. 431, 780 S.W.2d 11 (1989); and Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986), we premised our decisions on the legislature's intent ......