Arkansas Supreme Court strikes down med-mal affidavit requirement.

The Arkansas Supreme Court has ruled that a state law requiring medical malpractice plaintiffs to file affidavits supporting the validity of their claims is unconstitutional. Reversing the lower court's dismissal of a lawsuit, the high court found that the law conflicts with state rules of civil procedure and allowed the case to go forward. (Summerville v. Thrower, 2007 WL 766319 (Ark. Mar. 15, 2007).)

The state law, passed in 2003, mandates that "reasonable cause for filing any action for medical injury due to negligence shall be established only by the filing of an affidavit that shall be signed by an expert engaged in the same type of medical care as is each medical care provider defendant." The affidavit must be filed within 30 days of the complaint.

In January 2003, Tomosa Summerville underwent a tubal ligation at Healthcare for Women, a Little Rock surgical clinic owned by her doctor, Rufus Thrower. In August of that year, she informed Joy Woolfolk, a nurse practitioner at the clinic, that she had taken a pregnancy test and discovered she was pregnant. Woolfolk told her that her pregnancy was normal and that she should return for a follow-up visit in September.

A few days later, Summerville became delirious and began bleeding heavily. Doctors at the University of Arkansas Medical Services (UAMS) diagnosed her with a tubal pregnancy and performed emergency surgery.

In 2005, Summerville sued Thrower, Woolfolk, and Healthcare for Women. Her complaint alleged that Woolfolk misdiagnosed her pregnancy and did not request an examination by Thrower; that Thrower illegally allowed Woolfolk to provide medical care without a doctor's supervision; and that Thrower, Woolfolk, and the clinic all violated the applicable standards of care.

Woolfolk and Thrower filed a motion to dismiss, asserting that Summerville had failed to file an affidavit of reasonable cause by a medical expert within 30 days of filing the lawsuit. In response, she filed an affidavit from her attorney arguing that the law was unconstitutional, and followed up with two affidavits from medical experts stating that the standard of care had been violated in her treatment. One of the experts was the surgeon who performed the emergency surgery at UAMS.

In January 2006, the Pulaski County Circuit Court held a hearing in which it ruled that the statute was constitutional and dismissed the case with prejudice. Summerville filed a motion for a new trial and modification of the judgment.

Summerville raised several issues for reversal, but the court reached only one. "Because we reverse on the issue that [the affidavit requirement] directly conflicts with Rule 3 of our Rules of Civil Procedure, we need not address the remaining issues," Justice Robert Brown wrote for the court.

The court cited an earlier opinion in which it struck down a requirement that med-mal plaintiffs give defendants 60 days' notice that they intend to file a lawsuit, on grounds that this was an overly onerous burden for plaintiffs. Referring to that decision, Brown wrote, "In so holding, we concluded that Rule 3 governs the commencement of all civil actions and requires only that a complaint be filed with the clerk of the appropriate court." (Weidrick v. Arnold, 835 S.W.2d 843 (Ark. 1992).)

To the defendants' argument that the earlier case was different because it concerned a procedural rule, not substantive law, the court responded, "While the requirement for an affidavit of reasonable cause may well fall in the category of substantive law, an automatic dismissal of the cause of action if the affidavit is not filed within 30 days concerns enforcement of a remedy, and we hold it is procedural."

The court also pointed to an earlier decision in Oklahoma, where the state supreme court ruled that a similar affidavit requirement was unconstitutional and represented a monetary barrier to access to the courts. (Zeier v. Zimmer, Inc., 152 P.3d 861 (Okla. 2006); see Valerie Jablow, Oklahoma Justices Reject Affidavit Requirement in Med-Mal Cases, TRIAL 43 (Mar. 2007).)

Concurring, Justice Annabelle Clinton Imber argued that the requirement interfered with Rule 11, which governs the handling of improper filings. The statute, Imber wrote, "completely strips the circuit court of its discretion in the imposition of sanctions" and "provides no opportunity for the plaintiff to withdraw or correct an alleged deficiency after notice of the challenge."

John Vail, vice president of the Center for Constitutional Litigation in Washington, D.C., said the ruling was wholly in line with prior Arkansas decisions.

"The Arkansas Constitution empowers the supreme court, not the legislature, to prescribe rules of procedure," said Vail. "The legislature passed a rule that conflicted with an existing rule of the court. It is no surprise that the legislative enactment did not survive."

--CARMEL SILEO