Simpson v. Fuller, 83-275

• Decision Date: 05 March 1984
• Docket Number: No. 83-275,83-275
• Parties: Charity May SIMPSON, Appellant, v. Dr. Cullen Dale FULLER, Memorial Hospital of North Little Rock, Arkansas, and St. Paul Fire and Marine Insurance Company, Appellees.
• Court: Arkansas Supreme Court

Page 269

665 S.W.2d 269

281 Ark. 471

Charity May SIMPSON, Appellant, v. Dr. Cullen Dale FULLER, Memorial Hospital of North Little

Rock, Arkansas, and St. Paul Fire and Marine

Insurance Company, Appellees.

No. 83-275.

Supreme Court of Arkansas.

March 5, 1984.

Orvin W. Foster, Mena, for appellant.

Friday, Eldredge & Clark by John Dewey Watson, Little Rock, for appellees.

ADKISSON, Chief Justice.

This is a medical malpractice action brought by appellant, Charity May Simpson, against appellee, Dr. Cullen Dale Fuller, Memorial Hospital of North Little Rock, and St. Paul Fire and Marine Insurance Company. The trial court dismissed the suit with prejudice because of appellant's failure to notify appellees sixty days before filing suit pursuant to Act 709 of 1979 (codified at Ark.Stat.Ann. § 34-2617 [Supp.1981] ). ). Appellant admits her failure to comply with the sixty day notice of intent to sue, but she contends the notice requirement is constitutionally invalid. On appeal we affirm.

Appellant argues that this Court should apply a "strict scrutiny" test to determine the constitutionality of Ark.Stat.Ann. § 34-2617. As rationale for the application of a "strict scrutiny" test, appellant contends (1) that the right to pursue remedies in a court of law for injuries sustained to person or property should be deemed a "fundamental right" as established by the Constitution of Arkansas in Article 2, Section 13; (2) that Ark.Stat.Ann. § 34-2617 is in derogation of common law; and (3) that the statute confers upon tort-feasors who provide medical care a special privilege, or immunity, in violation of the Fourteenth Amendment to the Constitution of the United States and in violation of Article 2, Section 3 of the Constitution of Arkansas.

In Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983) we rejected appellant's argument that Act 709 be strictly construed. There we held that: "The statute in question [Act 709 of 1979] bears a fair and substantial relation to the object of the legislation, which is to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of insurance."

A presumption exists that every act is constitutional. Before it will be held unconstitutional, the incompatibility between it and the constitution must be clear, and any doubts as to the validity must be resolved in favor of its constitutionality. Gay v. Rabon, supra; S. Cen. Dist. Pentecostal Ch. v. Bruce-Rogers, 269 Ark. 130, 599 S.W.2d 702 (1980).

We considered this identical notice issue in the case of Gay v. Rabon, supra, and applied a "rational basis" test, concluding that a...