Morrison v. Jennings

Tammy MORRISON, Administratrix of the Estate
of Sandra Kay Finsel, Deceased v. Charles A.
JENNINGS, M.D., and Munir Zufari, M.D.

96-1453                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 28, 1997


1.   Judgment -- summary judgment discussed. -- Under ARCP Rule 56(c),
     summary judgment is to be rendered only in those instances
     where the pleadings, depositions, answers to interrogatories
     and admissions on file, together with the affidavits, if any,
     show that there is no genuine issue as to any material fact
     and that the moving party is entitled to a judgment as a
     matter of law; the burden of sustaining a motion for summary
     judgment is the responsibility of the moving party; on appeal,
     the supreme court views all proof submitted in a light most
     favorable to the nonmoving party, with any doubts or
     inferences resolved against the moving party.

2.   Appeal & error -- decedent's minor granddaughter not party to suit --
     merits of argument based on her claim not reached. -- Where the
     decedent's minor granddaughter was not a party to the suit,
     the supreme court did not reach the merits of appellant's
     argument that her claim was not barred by the statute of
     limitations because the granddaughter's claim could not be
     barred until she reached the age of twenty-four years as
     provided in Ark. Code Ann.  16-56-116(a).


3.   Appeal & error -- failure to obtain ruling precludes appellate review. --
     Where appellant argued that the Medical Malpractice Act was
     special legislation in violation of Ark. Const. amend. 14, but
     it was evident from the abstract that appellant did not obtain
     a ruling from the trial court on the issue, the supreme court
     did not reach the merits of the claim; the failure to obtain
     a ruling on an issue at the trial court level, including a
     constitutional issue, precludes a review of the issue on
     appeal.

4.   Appeal & error -- issues raised for first time on appeal not addressed. -
     - Where appellant argued for the first time on appeal that
     application of the two-year medical malpractice statute of
     limitations to wrongful-death actions violated the open-court
     provision contained in Ark. Const. art. 2,  13, and where the
     abstract did not reflect that appellant obtained a ruling from
     the trial court on her argument that application of the two-
     year limitations to wrongful death actions violated notions of
     due process under the federal and state constitutions, the
     supreme court did not address the merits of the issues.

5.   Constitutional law -- standing -- constitutional rights are personal rights
     -- exception not applicable. -- The supreme court concluded that
     appellant lacked standing to raise her equal protection and
     due process argument because she was not a member of the class
     of persons she claimed would be deprived of due process and
     equal protection of the law, namely those persons with claims
     on behalf of persons who died as the result of a medical
     injury more than two years from the date of the injury; for a
     litigant to have standing to challenge the constitutionality
     of a law, it must be unconstitutional as applied to him; the
     general rule is that one must have suffered injury or belong
     to a class that is prejudiced in order to have standing to
     challenge the validity of a law; constitutional rights are
     personal rights and may not be raised by a third party,
     although there is a narrow exception for cases in which the
     issue would not otherwise be susceptible of judicial review
     and it appears that the third party is sufficiently interested
     in the outcome that the interest of the party whose
     constitutional rights were allegedly deprived would be
     adequately represented; that exception did not apply here, and
     appellant therefore lacked standing to raise the equal
     protection and due process argument.

6.   Appeal & error -- unsupported assignments of error will not be considered
     on appeal. -- Appellant's argument that the decedent was under
     appellee surgeon's continual treatment even after she had died
     was clearly not well grounded in law, and no authority was
     offered to support the contention; assignments of error that
     are unsupported by convincing argument or authority, will not
     be considered on appeal where it is not apparent without
     further research that they are well taken.

7.   Appeal & error -- no convincing authority or argument in support of
     allegation of fraudulent concealment. -- Appellant did not explain
     how appellee surgeon's reference to what appellee consulting
     physician concluded in findings concerning the decedent's
     suitability for surgery rose to the level of an attempt by
     appellee surgeon fraudulently to conceal his own alleged
     negligence; the supreme court declined to address the argument
     because appellant had cited no convincing authority or
     argument in support of her allegation of fraudulent
     concealment. 

8.   Limitation of actions -- two-year statute of limitations for medical injury
     applicable to alleged cause of decedent's death. -- Because the
     language of the Medical Malpractice Act provides that the act
     supersedes any inconsistent provision of law, the two-year
     statute of limitations set forth in the act applies to any
     claim of medical injury, regardless of whether the injured
     person ultimately died as a result; where, in the present
     case, the alleged cause of the decedent's death was a medical
     injury, the two-year statute of limitations provided in Ark.
     Code Ann.  16-114-203 was applicable.

9.   Limitation of actions -- appellant's wrongful-death claim against appellees
     barred by two-year statute of limitations -- dismissal of action with
     prejudice affirmed. -- The supreme court held that appellant's
     wrongful-death claim against both appellees was barred because
     it was not filed until more than two years after the latest
     dates upon which either appellee could have committed a
     negligent act upon the decedent; the supreme court affirmed
     the trial court's judgment dismissing appellant's cause of
     action with prejudice as to both appellees.


     Appeal from Sebastian Circuit Court, Greenwood District; John
G. Holland, Judge; affirmed.
     Charles Karr and James R. Filyaw, for appellant.
     Warner, Smith & Harris, PLC, by: Douglas O. Smith, Jr., for
appellee Charles A. Jennings, M.D.
     Ledbetter, Hornberger, Cogbill, Arnold & Harrison, by: Charles
R. Ledbetter, R. Ray Fulmer II, and J. Michael Cogbill, for
appellee Munir Zufari, M.D.

     Donald L. Corbin, Justice.
     Appellant Tammy Morrison, Administratrix of the Estate of
Sandra Kay Finsel, appeals the order of the Sebastian County
Circuit Court, Greenwood District, granting summary judgment to
Appellees Dr. Charles A. Jennings and Dr. Munir Zufari and
dismissing with prejudice her wrongful-death action against them. 
Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1), (15),
and (17) (as amended by per curiam July 15, 1996).  Appellant
raises five points for reversal.  We find no error and affirm.
                  Facts and Procedural History
     The following facts are provided in Appellant's initial
complaint filed on July 11, 1994.  On April 15 and 18, 1992,
Appellee Dr. Zufari saw the decedent in his clinic in Mansfield,
Arkansas, for pain in her back, pain and discomfort in her chest
which radiated to her back, shortness of breath, and numbness in
her arms.  The decedent was subsequently admitted to the Crawford
Memorial Hospital in Van Buren, Arkansas, on April 27, 1992, where
she underwent surgery on her gallbladder, a laparoscopic
cholecystectomy, performed by Dr. Zufari the following day.  On
April 29, 1992, the decedent was discharged from the hospital, but,
for unknown reasons, Dr. Zufari did not dictate his discharge
summary of the patient until August 30, 1992.  The decedent was
admitted to St. Edward Mercy Medical Center in Fort Smith,
Arkansas, by Dr. Zufari on May 2, 1992, and subsequently discharged
on May 8, 1992.  The decedent was later readmitted to St. Edward
Mercy Medical Center on May 12, 1992, where she remained until her
death on July 11, 1992.  
     Appellant alleged in her first complaint that during the
decedent's hospitalization at St. Edward Mercy Medical Center, it
was discovered that she had suffered at least two heart attacks
prior to and at the time of her gallbladder surgery by Dr. Zufari. 
Appellant alleged that Dr. Zufari was negligent in his care of the
decedent, thus, causing her wrongful death.  None of the above-
referenced dates contained in Appellant's complaints were disputed
by Dr. Zufari.
     An amended complaint was filed on August 26, 1994, naming
Appellee Dr. Jennings as a defendant.  Specifically, Appellant
alleged that the decedent was seen by Dr. Jennings on April 27,
1992, for consultation, and that Dr. Jennings had cleared her for
surgery.  Appellant alleged that Dr. Jennings was negligent in his
care of the decedent.  In his answer, Dr. Jennings admitted that he
did see the decedent on that date and that he issued a consultation
report.  None of the relevant dates in the amended complaint were
disputed by Dr. Jennings.
     On March 7, 1996, Appellees moved separately for summary
judgment on the ground that Appellant's claim was barred by the
two-year statute of limitations applicable to medical malpractice
actions as provided in Ark. Code Ann.  16-114-203 (Cum. Supp.
1991).  
     In her response, Appellant argued that summary judgment was
not appropriate for several reasons, including the following:  (1)
The claims of the decedent and Ashley Finsel, the decedent's minor
heir, were preserved by the general savings clause; (2) the Medical
Malpractice Act is special legislation in violation of Amendment 14
of the Arkansas Constitution; (3) the statute of limitations for
medical malpractice claims as applied in wrongful-death actions
denies equal protection of the law in violation of both the
Arkansas and United States Constitutions; (4) the statute of
limitations did not begin to run against Dr. Zufari until he
dictated his discharge summary on August 30, 1992; and (5) this
court's opinion in Hertlein v. St. Paul Fire & Marine Ins. Co., 323
Ark. 283, 914 S.W.2d 303 (1996), should not be followed or should,
in the alternative, be overruled.     
     On March 28, 1996, after both motions for summary judgment, as
well as Appellant's response thereto, had been filed, Appellant
filed a second amended complaint, this time alleging that
Dr. Zufari had fraudulently concealed his negligence.  The
Appellant alleged that by not dictating his discharge summary until
after the decedent's death, and by including in that summary a
statement referencing Dr. Jennings's report, which Dr. Zufari
allegedly knew to be false, Dr. Zufari had fraudulently concealed
his negligence.  Appellant alleged that because Dr. Zufari knew
that the statement by Dr. Jennings was false, its inclusion in his
report constituted fraudulent concealment of his own negligence in
the care and treatment of the decedent.
     In an order filed August 19, 1996, the trial court granted
summary judgment to both Appellees on the bases that there were no
genuine issues of material fact left to be resolved and that
Appellant's cause of action was barred by the statute of
limitations.  The trial court's order reflected that the cause of
action was dismissed with prejudice.  This appeal followed.
                       Standard of Review
     Summary judgment is to be rendered only in those instances
where "the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."  ARCP
Rule 56(c); Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark.
140, 929 S.W.2d 713 (1996).  The burden of sustaining a motion for
summary judgment is the responsibility of the moving party.
Pastchol, 326 Ark. 140, 929 S.W.2d 713.  On appeal, we view all
proof submitted in a light most favorable to the nonmoving party,
with any doubts or inferences resolved against the moving party. 
Id.
                      Ashley Finsel's Claim
     Appellant contends that her claim was not barred by the
statute of limitations because Ashley Finsel's claim could not be
barred until she reached the age of twenty-four years as provided
in Ark. Code Ann.  16-56-116(a) (1987).  Ashley, who was eight
years old at the time of the decedent's death, is the decedent's
minor granddaughter of whom the decedent was legal guardian up to
the time of her death, when Appellant was appointed as Ashley's
guardian.  Appellant does not contend that the suit instituted
below was filed by her in her capacity as legal guardian of Ashley. 
Rather, it is evident from the pleadings that Appellant brought
this suit in her capacity as administratrix of the decedent's
estate.  Thus, because Ashley is not a party to the suit, we do not
reach the merits of this argument.  See ARCP Rule 17(b); Williams
v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).  
                       Special Legislation
     Appellant argues that the Medical Malpractice Act is special
legislation in violation of Amendment 14 to the Arkansas
Constitution.  Appellant raised this argument below in her response
to Appellees' motions for summary judgment.  We do not reach the
merits of this claim, as it is evident from the abstract that
Appellant did not obtain a ruling from the trial court on this
issue.  In its order, the trial court merely stated that there was
no genuine issue of material fact and that the claim was barred by
the statute of limitations.  Such a ruling does not sufficiently
address Appellant's constitutional claim.  This court has
repeatedly stated that the failure to obtain a ruling on an issue
at the trial court level, including a constitutional issue,
precludes a review of the issue on appeal.  See, e.g., Wooten v.
State, 325 Ark. 510, 931 S.W.2d 408 (1996); Technical Servs. of
Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995); Parmley
v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994).
                        Equal Protection
     Appellant argues that our application of the two-year medical
malpractice statute of limitations to wrongful-death actions
violates notions of due process and equal protection under the
federal and state constitutions.  Appellant additionally argues
that such application also violates the "open court" provision
contained in Article 2, Section 13, of the Arkansas Constitution,
which provides that all persons are entitled to a certain remedy in
the law and ought to be able to obtain justice freely.  
     Appellant raises her argument concerning this state's "open
court" policy for the first time on appeal and, as such, we do not
address it.  Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371
(1996).  We also decline to address the merits of Appellant's equal
protection and due process argument for two reasons.  The first
reason is that the abstract does not reflect that Appellant ever
obtained a ruling on her constitutional argument from the trial
court.  As previously stated, we do not reach issues not ruled upon
below, even constitutional issues.    
     The second reason we do not address this argument is that
Appellant lacks standing to raise this issue because she is not a
member of the class of persons she claims will be deprived of due
process and equal protection of the law, namely those persons with
claims on behalf of persons who died as the result of a medical
injury more than two years from the date of the injury.  In order
for a litigant to have standing to challenge the constitutionality
of a law, it must be unconstitutional as applied to him.  Medlock
v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930
(1991).  The general rule is that one must have suffered injury or
belong to a class which is prejudiced in order to have standing to
challenge the validity of a law.  Id.  Constitutional rights are
personal rights and may not be raised by a third party, although
there is a narrow exception for cases in which the issue would not
otherwise be susceptible of judicial review and it appears that the
third party is sufficiently interested in the outcome that the
interest of the party whose constitutional rights were allegedly
deprived would be adequately represented.  Id.  That exception does
not apply here.  Appellant thus lacks standing to raise this equal
protection argument.
                     Fraudulent Concealment
     Appellant argues that the statute of limitations did not begin
to run on her claim against Appellee Dr. Zufari until he had
dictated his discharge summary on August 30, 1992, approximately
one and one-half months after the decedent's death.  Appellant
makes two separate, unrelated arguments in support of this point. 
     In the first instance, Appellant argues that the statute of
limitations should have been tolled until the doctor completed his
discharge summary because it would be unfair and inequitable
otherwise.  Appellant then proceeds to analyze her assertion under
the continuous-treatment doctrine.  We find no similarity between
a doctor's failure to dictate an immediate written report and a
doctor's continuous treatment of a patient, especially in this
case, as the decedent died prior to the time Dr. Zufari completed
his report.  Appellant's argument that the decedent was under
Dr. Zufari's continual treatment even after she had died is clearly
not well grounded in law and no authority is offered to support
this contention.  Assignments of error that are unsupported by
convincing argument or authority, will not be considered on appeal
where it is not apparent without further research that they are
well taken.  Moorman v. Priest, 310 Ark. 525, 837 S.W.2d 886
(1992).
     In the second instance, Appellant contends that Dr. Zufari
fraudulently concealed his alleged negligence when he referred to
the findings made by Dr. Jennings concerning the decedent's
suitability for surgery.  The offending statement in Dr. Zufari's
discharge summary reads:
     His impression was cholelithiasis, abnormal EKG without
     documented evidence of coronary artery disease, and
     suspect her EKG may well be abnormal variant.

Appellant asserts that this statement concerning Dr. Jennings's
finding of an abnormal EKG without documented evidence of coronary
artery disease constituted fraudulent concealment because
Dr. Zufari was allegedly aware of such documented evidence from a
previous testing of the decedent in July 1990.  Appellant does not,
however, explain how Dr. Zufari's reference to what another doctor
concluded rises to the level of an attempt by Dr. Zufari to
fraudulently conceal his own alleged negligence.  Again, as above,
we decline to address this argument because Appellant has cited no
convincing authority or argument in support of her allegation. 
                          Stare Decisis
     Lastly, Appellant argues that we should not apply our holding
in Hertlein, 323 Ark. 283, 914 S.W.2d 303, or, in the alternative,
that we should overrule that decision completely.  Appellant offers
several reasons for overruling that decision, none of which are
persuasive.  Since our decision in Hertlein, this court has had the
opportunity to revisit the issue of whether the two-year statute of
limitations found in the Medical Malpractice Act applies to claims
involving the death of a person as a result of medical injury in
Pastchol, 326 Ark. 140, 929 S.W.2d 713.
     The facts presented in Pastchol are similar to those presented
here.  In Pastchol, the appellant argued that the action was one of
wrongful death, not medical malpractice, and that, as such, the
trial court should have applied the three-year statute of
limitations for wrongful-death actions as provided in Ark. Code
Ann.  16-62-102 (1987), instead of the two-year period for medical
malpractice actions found in section 16-114-203.  The appellant
further asserted that the two causes of action were separate and
distinct even though the cause of death in that case was alleged to
have resulted from a medical injury.  This court upheld its
previous rulings in Hertlein, 323 Ark. 283, 914 S.W.2d 303, and
Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993),
concluding that because the language of the Medical Malpractice Act
provides that the act supersedes any inconsistent provision of law,
the two-year statute of limitations provided in the act applies to
any claim of medical injury, regardless of whether the injured
person ultimately died as a result.  In the present case the
alleged cause of the decedent's death is a medical injury; thus,
the two-year statute of limitations provided in section 16-114-203
is applicable.  
     Section 16-114-203 provides in pertinent part:
          (a) Except as otherwise provided in this section,
     all actions for medical injury shall be commenced within
     two (2) years after the cause of action accrues.

          (b) The date of the accrual of the cause of action
     shall be the date of the wrongful act complained of and
     no other time.
 
     Appellant has not pleaded a specific date when the alleged
negligent injury occurred with regard to Dr. Zufari.  Instead, the
complaints allege that, "[d]uring her hospitalization at St.
Edward, it was discovered that the Decedent had suffered at least
two heart attacks prior to and at the time of her gallbladder
surgery by [Dr. Zufari]."  It thus appears that the alleged
negligence of Dr. Zufari occurred prior to the time the decedent
was admitted to St. Edward Mercy Medical Center.  In any event,
according to the complaints filed by Appellant, the latest possible
date upon which Dr. Zufari could have committed a negligent act
while treating the decedent would have been May 2, 1992, the date
on which he admitted the decedent to St. Edward Mercy Medical
Center following her gallbladder surgery.  None of the abstracted
complaints states affirmatively that Dr. Zufari had any further
contact with the decedent after that date.   
     As for the claim against Dr. Jennings, the complaints reflect
that the only contact he had with the decedent occurred on
April 27, 1992.  Thus, that appears to be the only possible date on
which Dr. Jennings could have committed a negligent act upon the
decedent.    
     Applying the two-year statute of limitations found in section
16-114-203, Appellant's claim against both Dr. Zufari and
Dr. Jennings is barred because it was not filed until July 11,
1994.  For this reason, as well as the reasons stated above, we
affirm the trial court's judgment dismissing Appellant's cause of
action with prejudice as to both Appellees.
     Arnold, C.J., Glaze, and Brown, JJ., dissent.


               Robert L. Brown, Justice, dissents.

     For the third time in a year, the majority has erred in its
application of the two-year statute of limitations to a wrongful
death claim that arose from a medical injury.  See Pastchol v. St.
Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996);
Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996).  The catalyst for these errant decisions was the
court's analysis of the law in Hertlein v. St. Paul Fire & Marine
Ins. Co.  A review of the law to that point reveals the fallacies
in the court's opinion from which I respectfully dissent.
     Like this case and Pastchol, the issue presented in Hertlein
was whether the two year or three-year statute of limitations
applies in a wrongful death action where the death is allegedly
caused by a medical injury.  For medical malpractice, "all actions
for medical injury shall be commenced within two (2) years after
the cause of action accrues."  Ark. Code Ann.  16-114-203 (a)
(Supp. 1995).  The medical malpractice act "applies to all causes
of action for medical injury accruing after April 2, 1979, and, as
to such causes of action, shall supersede any inconsistent
provision of law."  Ark. Code Ann.  16-114-202 (1987).  Under the
wrongful death act, the action must be commenced "within three
years after the death of the person alleged to have been wrongfully
killed."   Ark. Code Ann.  16-62-102 (c)(1) (Supp. 1995).
     In Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), Mr. Matthews sued under medical malpractice and
wrongful death theories.  The malpractice occurred on September 14,
1964, when the laboratory erroneously reported that tissues taken
from Mrs. Matthews were not cancerous.  The error was discovered on
January 29, 1965, and Mrs. Matthews died on November 28, 1965.  Mr.
Matthews filed suit on June 14, 1967--nearly three years after the
negligent act.  This court was forced to determine whether the two-
year statute of limitations for medical malpractice or the three-
year wrongful death statute was controlling.  Writing for the
majority, Justice George Rose Smith offered this analysis:
          In our opinion each statute is partly controlling. 
     It is essential to recognize that two separate causes of
     action are being asserted by the appellant in his
     capacity as administrator of his deceased wife's estate. 
     The complaint seeks in part to recover compensation for
     the physical and mental anguish suffered by Mrs. Matthews
     before her death.  At common law that cause of action
     would not have survived the death of Mrs. Matthews, but
     under our survival statute it may be asserted by her
     personal representative.  In that situation the personal
     representative is asserting the decedent's cause of
     action and must therefore bring suit within the period
     allowed by that statute of limitations which would have
     governed if the injured person had not died.  That being
     the two-year malpractice act in this case, the
     administrator's attempt to assert Mrs. Matthews cause of
     action for her physical and mental pain and suffering is
     barred, because the suit was not filed within two years
     after the wrongful act complained of.
Matthews, 245 Ark. at 249, 432 S.W.2d  at 487-88 (citations
omitted).  We then recognized that the remaining statutory wrongful
death claim, as opposed to the survival claim, was not subject to
the medical malpractice two-year limitations period.  As a final
justification for applying both statutes, we stated that public
policy favors applying the longer statute of limitations when the
issue is doubtful.  Matthews, 245 Ark. at 250, 423 S.W.2d  at 488.
     The Medical Malpractice Act was enacted in 1979 and superseded
any inconsistent provision of law.  1979 Ark. Acts 709,  9; Ark.
Code Ann.  16-114-202 (1987).  However, eight years after the
enactment of the current Medical Malpractice Act, this court
indicated that Matthews was still viable.  In Brown v. St. Paul
Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987) (Brown I), a
patient at an alcoholism treatment center walked through an
unlocked door to the roof of a building and jumped or fell to his
death.  Nearly three years later, the personal representative sued. 
We struggled with whether Brown's death was a "medical injury"
thereby invoking the two-year medical malpractice statute of
limitation.  In holding the three-year statute of limitations
statute applicable, "we [stood] fast on our ruling in Matthews." 
Brown I, 292 Ark. at 561, 732 S.W.2d  at 131.  We applied Matthews
despite the fact that it interpreted former law:
     Our wrongful death statute created a new and separate
     cause of action which could arise if death was caused by
     any wrongful act and which carries its own statute of
     limitations as part of that right.  For this reason, the
     medical malpractice statute of limitations is irrelevant
     when a patient dies from his injuries before the two-year
     period has run.
Brown I, 292 Ark. at 562, 732 S.W.2d  at 132.  We then reversed the
lower court and held that the wrongful death action was timely
filed.
     Subsequently, we overruled Brown I in Bailey v. Rose care
Center, 307 Ark. 14, 817 S.W.2d 412 (1991).  In Bailey, a nursing
home resident left the home unnoticed in his wheelchair and was
struck and killed by a pickup truck.  Relatives sued, and after the
jury returned a verdict for the nursing home, the plaintiffs
appealed, challenging the instructions on negligence.  In our
analysis of the negligence instructions, we looked to the Brown I
definition of "medical injury."  We concluded that the facts in
Brown I did not fit within the definition of medical injury, and we
overruled Brown I to that limited extent.  Bailey, 307 Ark. at 19-
20, 817 S.W.2d  at 415.  The effect of this analysis on Brown I was
that only the wrongful death statute of limitations was applicable
because the injury was not a "medical injury" and, thus, the injury
did not fall within the ambit of the Medical Malpractice Act.  The
language in Bailey did not speak to the Matthews rationale in Brown
I, and as a result, Matthews remained unaffected.
     We revisited the Brown saga in Brown v. St. Paul Mercury Ins.
Co., 308 Ark. 361, 823 S.W.2d 908 (1992) (Brown III).  The issue in
this third appeal was whether the case should be dismissed due to
the untimely filing of the pleadings.  We held that Brown I had
decided that this was a wrongful death action and that the three
year statute of limitations applied.  "Because this is a wrongful
death action, compliance with the medical malpractice statutes,
including  16-114-204, is irrelevant.  The doctrine of law of the
case clearly applies."  Brown III, 308 Ark. at 363, 823 S.W.2d  at
909.  The case was reversed for a trial on the merits.  Again,
Brown III makes no mention of Matthews.
     At this stage in the case history, Matthews, as explained in
Brown I, is still good law.  The break in the Matthews position
began with a narrow decision in 1993.  In Ruffins v. ER Arkansas,
P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), the plaintiff filed the
complaint after the two-year medical malpractice statute had run
but before the three-year wrongful death statute had run.  The
complaint alleged that the doctors failed to properly diagnose and
treat the deceased, resulting in his death.  The doctors moved for
a summary judgment on the grounds that the plaintiff had failed to
comply with the sixty-day notice of intent to sue.  That provision
was nullified by our decision in Weidrick v. Arnold, 310 Ark. 138,
835 S.W.2d 843 (1992), but in Ruffins we applied the notice
provision because the law was extant at the time the case was
tried.  We observed that in light of Weidrick v. Arnold, "this
decision has very little significance as a precedent."  Ruffins,
313 Ark. at 177.  We implemented the plain language of the medical
malpractice act in affirming the trial court's dismissal of the
suit for failure to give the requisite notice.  Under the statutes
in force at the time the case was tried, there was no doubt that
the medical malpractice claim was barred.  We then addressed the
wrongful death portion of the claim:
          The plaintiff-appellant tacitly asks us to ignore
     the clear language of the statute by arguing that our
     cases have recognized that medical malpractice and
     wrongful death are separate causes of action even though
     they may arise from the same negligent act and asserts
     this action is solely for wrongful death.  Accordingly,
     she contends that she did not have to give the "notice of
     intent to sue" that is required by the Medical
     Malpractice Act....  She bolsters her argument by quoting
     a sentence of dictum from [Brown I] that states the
     Medical Malpractice Act is irrelevant to wrongful death
     actions.
Ruffins, 313 Ark. at 177-78, 853 S.W.2d  at 879.  The Ruffins court
distinguished Matthews because:
     [T]hat holding does not decide the issue in this case. 
     The issue here, regardless of which statute of
     limitations controls, is whether the then required notice
     provision of the Medical Malpractice Act ... is
     applicable.  Since this is undisputedly a suit for
     "medical injury," the Medical Malpractice Act applies,
     and at the time this case arose, it required the sixty-
     day notice of intent to sue.  The wrongful death statute
     does not require notice....  The Medical Malpractice Act
     was enacted long after the wrongful death statute was
     enacted, and the Medical Malpractice Act expressly
     "supersedes any inconsistent provision of law...."  We
     have no choice on the notice issue as we did when there
     were two statutes of limitations that were applicable.
Ruffins, 313 Ark. at 178, 853 S.W.2d  at 879.  The court further
distinguished Matthews and Brown I in that after Bailey overruled
Brown I, "the question of whether a wrongful death resulting from
medical injury was subject to the period of limitations of the
Medical Malpractice Act was an open question, and we had made no
holdings whatsoever about the notice issue."  Ruffins, 313 Ark. at
179, 853 S.W.2d  at 880.
     The Ruffins court, thus, admitted that the case was of little
precedential value.  The court also stated that it dealt with the
notice provision of the medical malpractice act as opposed to the
statute of limitations.  Within this narrow scope, Ruffins dictum
was overbroad to the extent it intimates that the wrongful death
statutes are inconsistent with the medical malpractice statutes
simply because they overlap.  As Brown I makes clear, the
legislature has provided for two separate causes of action in
wrongful death cases, and Ruffins should be limited to effect that
intent.  To interpret the statutes differently would be to say that
the General Assembly intended to give with the left hand what it
takes away with the right.
     Yet that is precisely what happened with our decision in
Hertlein.  Indeed, the majority relied only on Ruffins and the
general repealer clause in the medical malpractice act when it held
that the medical malpractice statute of limitations was exclusive
of all causes of actions stemming from a medical injury because the
wrongful death statute of limitations was "an inconsistent
provision of law."  Hertlein v. St. Paul Fire & Marine Ins. Co.,
323 Ark. at 286, 914 S.W.2d  at 305.  The crux of the Hertlein
decision rests on its interpretation of the repealer clause. 
Conspicuously absent from the opinion is a recitation of the
applicable rules of statutory interpretation or an overruling of
Matthews or Brown I.
     When interpreting statutes, the first rule of construction is
to construe the statute just as it reads, giving the words their
ordinary and usually accepted meaning in common language.  Henson
Fleet Mortgage Co., 319 Ark. 491, 892 S.W.2d 250 (1995).  Yet the
basic rule of statutory interpretation to which all other
interpretive guides must yield is to give effect to the intent of
the legislature.  Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996); Henson v. Fleet Mortgage Co., supra.  In
ascertaining an act's intent, the appellate court examines the
statute historically, as well as the contemporaneous conditions at
the time of the enactment, the object to be accomplished, the
remedy to be provided, the consequences of interpretation, and
matters of common knowledge within the court's jurisdiction. 
Rogers v. Tudor Ins. Co., supra; Henson Fleet Mortgage Co., supra;
City of Little Rock v. AT&T Communications of the S.W., Inc., 318
Ark. 616, 888 S.W.2d 290 (1994).
     A statute of a general nature does not repeal a more specific
statute unless there is a plain, irreconcilable conflict between
the two.  Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980);
Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979).  Thus, the
treatment of a general repealer clause does not differ from the
rules applicable to a repeal by implication.  The fundamental rule
of that doctrine is that a repeal by implication is not favored and
is never allowed except when there is such an invincible repugnancy
between the provisions that both cannot stand.  Donoho v. Donoho,
318 Ark. 637, 887 S.W.2d 290 (1994); Uilkie v. State, 309 Ark. 48,
827 S.W.2d 131 (1992).  "[A] repeal by implication is accomplished
where the Legislature takes up the whole subject anew and covers
the entire ground of the subject matter of a former statute and
evidently intends it as a substitute, although there may be in the
old law provisions not embraced in the new."  Uilkie v. State, 309
Ark. at 53, 827 S.W.2d  at 134, quoting Berry v. Gordon, 237 Ark.
547, 376 S.W.2d 279 (1964); see also Bryant v. English, 311 Ark.
187, 843 S.W.2d 308 (1992) (constitutional provision).  Hence, the
older act will be "repealed" if it is apparent that the latter act
was intended to substitute for the prior one.  Uilkie v. State,
supra.
     The error in the Hertlein decision is that it does not
recognize that the statutes of limitations for the separate causes
of action can be read harmoniously as is demonstrated by this
court's decisions in Matthews v. Travelers Indemnity Ins. Co.,
supra, and Brown v. St. Paul Mercury Ins. Co. (Brown I), supra. 
This court's broad dictum in Ruffins does not diminish this fact. 
In the absence of the General Assembly's specific directive to
limit a cause of action for wrongful death, this court erred in
producing its own limitation without sufficient justification for
doing so.  Unfortunately, that error has been compounded by the
court's adherence to Hertlein in Pastchol v. St. Paul Fire & Marine
Ins. Co., supra, and now this case.
     The question then becomes what effect the time-honored
doctrine of stare decisis has on the faulty Hertlein decision.  I
turn to this court's discussion of stare decisis in 1968:
     This policy of adhering to precedent to give
     predictability to the law, and to avoid unsettling
     things, is fundamental to the common law.  So too is the
     power to overrule a line of decisions, even those under
     which property rights were acquired.  Carter Oil Co. v.
     Weil, 209 Ark. 653, 192 S.W.2d 215 (1946).  Precedent
     governs until it gives a result so patently wrong, so
     manifestly unjust, that a break becomes unavoidable.  Any
     rule of law not leading to the right result calls for
     rethinking and perhaps redoing.  Llewellyn, Juris-
     prudence, 217 (1962).  The proper limitations on the
     doctrine of stare decisis have ever been recognized by
     this Court.  "Precedent, it is said, should not
     implicitly govern, but discretely guide ...", Roane v.
     Hinton, 6 Ark. 525, 527 (1846).
Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968). 
This court has said that a revision of erroneous case law is
preferred "rather than to have the character of our law impaired,
and the beauty and harmony of the system destroyed by the
perpetuity of error."  Brickhouse v. Hill, 167 Ark. 513, 519, 268 S.W. 865, 867 (1925), quoting Whittington v. Flint, 43 Ark. 504
(1884) (overruling five prior decisions).  Later in the Brickhouse
opinion, this court commented that it is our duty to correct and
not to perpetuate a decision founded in error.
     Legislative silence can be a factor in determining the
viability of a court's statutory interpretation, but such reliance
is treacherous and should not control the outcome.  Despite the
1996 Hertlein opinion, the General Assembly in its 1997 session
failed to offer any pronouncement on this issue one way or the
other.  However, the General Assembly also took no action after
Brown I, which reaffirmed the Matthews principles.  Considering the
Legislature's inaction both before and after this court's decisions
in Hertlein and Ruffins, the General Assembly's refusal to speak is
entitled to no weight.
     Hertlein is not based on sound legal principles, and the
decision limits a cause of action resulting in horrendous
consequences without proper judicial or legislative justification. 
It is our duty to correct this situation and not to perpetuate a
decision founded in error.  Brickhouse v. Hill, supra.
     I respectfully dissent.
     Arnold, C.J., and Glaze, J., join.