Dawson v. Gerritsen

Citations: 295 Ark. 206; 748 S.W.2d 33; 1988 Ark. LEXIS 154Docket: 87-215

Court: Supreme Court of Arkansas; April 11, 1988; Arkansas; State Supreme Court

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Donovan Dawson's second appeal concerns claims related to the death of his wife, Mary Francis Dawson, who died on October 7, 1983, following surgery by Dr. Roy Gerritsen. Dawson, appointed as the estate's administrator, filed a wrongful death suit on October 1, 1985, against Dr. Gerritsen and Baptist Memorial Hospital, which included claims from their two minor sons. The defendants moved to dismiss due to Dawson's failure to provide the required sixty days' notice of intent to sue, as mandated by Ark. Code Ann. 16-114-204. After a voluntary nonsuit on December 5, 1985, Dawson filed another complaint without the notice, leading to a second dismissal. The appeal from this dismissal was affirmed, rejecting Dawson's arguments regarding due process and the sufficiency of the first complaint as notice.

While the first appeal was pending, a new wrongful death action was filed on October 6, 1986, which included proper written notice. The trial court granted summary judgment in favor of the defendants, which the plaintiffs appealed. The appellants argued that minors have three years to bring medical malpractice claims under Ark. Code Ann. 16-56-116. However, the court highlighted that Section 4 of Act 709 extends the time for minors to assert medical injury claims until age nineteen. The appellants contended that this case is a wrongful death claim, subject to a three-year limitation under Ark. Stat. Ann. 27-906 and -907. The court referenced Matthews v. Travelers Indemnity Insurance Co., which distinguished between the two-year limitation for decedent estate claims and the three-year limitation for claims by next of kin.

Appellees argue that Act 709, enacted after the Matthews case, mandates that all medical injury claims, including wrongful death, must be initiated within two years of the wrongful act. Although the court does not resolve whether wrongful death claims resulting from medical malpractice fall under Act 709, it affirms that claims by minors, Donnie Wayne Dawson and Timothy Oliver, cannot be separated from the estate's claims once a personal representative is appointed. This principle is supported by the precedent set in Reed v. Blevins, where a wrongful death action was impeded by the appointment of an administrator who represented the deceased's next of kin, excluding other potential claimants, which resulted in a res judicata ruling against subsequent claims. The court emphasizes that only the appointed personal representative can initiate wrongful death actions, a rule reinforced by several cases. Appellants concede that Reed v. Blevins undermines their position but reference a dissent that advocates for a different outcome. However, the prevailing rule against splitting causes of action is well-established to prevent harassment of defendants and avoid unnecessary litigation. The court concludes that the claims arise from a single cause of action, and allowing fragmentation would burden both the defendant and the court system. Comparatively, the situation in Darnell v. Lea is distinguished, as the seduction claim was not derivative like wrongful death claims, allowing for separate actions.

The guardian's lawsuit was dismissed for lack of prosecution, which did not bar subsequent actions based on res judicata. In a related case, the second action was dismissed due to failure to provide written notice of intent to sue, following an earlier dismissal for nonsuit. This second dismissal was deemed an adjudication on the merits as per Arkansas Rules of Civil Procedure, Rule 41. The appellees, through a cross-appeal, sought to recover fees under Section 8 of Act 709, which allows for the recovery of costs in cases with baseless claims. The trial court determined that the claims were not baseless, and the higher court found no error in this conclusion. The court raised concerns about the sixty-day notice requirement in Act 709, noting it poses significant due process issues and is excessively harsh, although it had previously upheld this requirement. The court decided that the appellants would not face additional penalties for seeking relief from this hardship, leading to an affirmation of the lower court's ruling.