Worden v. Kirchner , 431 S.W.3d 243 ( 2013 )

Cite as 2013 Ark. 509
SUPREME COURT OF ARKANSAS
No. CV-13-261
ELIZABETH WORDEN AND Opinion Delivered December 12, 2013
DOUGLAS SPIRES, AS HEIRS AT LAW
APPEAL FROM THE PULASKI
FOR ALFRED SPIRES (DECEASED)
COUNTY CIRCUIT COURT
APPELLANTS
[NO. 60-CV-11-5618]
V.
HONORABLE TIMOTHY DAVIS
FOX, JUDGE
DR. JEFFREY KIRCHNER, M.D.
(INDIVIDUALLY); ARKANSAS
HEALTH GROUP, D/B/A NORTH
LITTLE ROCK EMERGENCY
DOCTORS GROUP; BAPTIST
HEALTH, D/B/A BAPTIST HEALTH
MEDICAL CENTER - NORTH LITTLE
ROCK; BAPTIST MEDCARE, INC.,
AFFIRMED; COURT OF APPEALS’
D/B/A PRACTICE PLUS
OPINION VACATED
APPELLEES
COURTNEY HUDSON GOODSON, Associate Justice
Appellants Elizabeth Worden and Douglas Spires, as the heirs at law of Alfred Spires,
deceased, appeal an order entered by the Pulaski County Circuit Court dismissing their
complaint alleging claims for malpractice and wrongful death against appellees Dr. Jeffrey
Kirchner, M.D.; Arkansas Health Group, d/b/a North Little Rock Emergency Doctors
Group (Arkansas Health); Baptist Health, d/b/a Baptist Health Medical Center - North Little
Rock (Baptist Health); and Baptist MedCare, Inc., d/b/a Practice Plus (Baptist MedCare).
For reversal, appellants contend that the circuit court erred by granting summary judgment
prior to the completion of discovery; by dismissing their complaint against Dr. Kirchner
Cite as 2013 Ark. 509
pursuant to Arkansas Rule of Civil Procedure 12(b)(6) (2013); by dismissing their complaint
against Arkansas Health, Baptist Health, and Baptist MedCare on the ground that appellants’
claims were barred by the statute of limitations; and by ruling that they could not assert claims
on behalf of the decedent. We granted appellants’ petition for review from the court of
appeals’ decision in Worden v. Kirchner, 2013 Ark. App. 168. Therefore, our jurisdiction is
pursuant to Arkansas Supreme Court Rule 1-2(e) (2013). We find no error and affirm.
On November 21, 2011, appellants, pro se, instituted the present lawsuit against
appellees alleging “medical injury and the wrongful death of Alfred Spires (Deceased).”
According to the complaint, on June 27, 2008, the decedent, Alfred Spires, who was a
resident of Florida, became ill while visiting relatives in Sheridan, Arkansas. On that date
shortly before 10:00 a.m., an ambulance transported him to the emergency room at Baptist
Health Medical Center in North Little Rock. The decedent died later that day at 1:55 p.m.,
after collapsing in a hallway between emergency-room departments.
As grounds for their claims of negligence, appellants alleged that, upon arrival at the
emergency room, the decedent relayed a history of myocardial infarction, yet hospital staff
failed to perform a cardiovascular assessment. Appellants alleged that emergency-room
personnel misdiagnosed the decedent’s condition as abdominal pain because, in fact, the
decedent was having a heart attack, as evidenced by the findings of the decedent’s autopsy
listing arteriosclerotic cardiovascular disease as the cause of death. Appellants further asserted
that a myocardial infarction requires immediate medical attention and that treatment was
delayed in the care of the decedent.
2
Cite as 2013 Ark. 509
Appellees filed a joint answer to the complaint, and later each appellee filed separate
motions to dismiss. In Kirchner’s motion for dismissal, he argued that appellants’ complaint
should be dismissed pursuant to Rule 12(b)(6) because it failed to state facts upon which relief
could be granted. In particular, Kirchner asserted that the complaint did not set forth facts
pertaining to the applicable standard of care, how he failed to act in accordance with that
standard, or how that alleged failure proximately caused the decedent’s death. Kirchner stated
that “nothing in the Complaint even indicates that [I] personally saw [the decedent] or
provided him with any medical care or treatment.” Kirchner further alleged that appellants’
complaint against him should be dismissed with prejudice because the statute of limitations
had since expired. In addition, Kirchner argued that appellants’ complaint was a nullity,
insofar as appellants were seeking damages for injuries sustained by the decedent. He asserted
that such an action to recover damages for injuries to a decedent can only be brought by an
administrator or executor on behalf of the decedent’s estate. Kirchner claimed that appellants,
as the decedent’s heirs, lacked the ability to assert claims sought in the complaint for the
decedent’s pain and suffering, loss of life, medical expenses, funeral and burial expenses, or any
other alleged injury to the decedent.
In their motions to dismiss, Arkansas Health, Baptist Health, and Baptist MedCare
argued primarily that dismissal was warranted because appellants did not commence an action
against them within the applicable two-year statute of limitations. On this issue, appellees
alleged that appellants previously had nonsuited their cause of action. Appellees stated that
the original lawsuit was instituted against other defendants on June 24, 2010, within the
3
Cite as 2013 Ark. 509
limitations period. Appellees asserted, however, that they were not named as defendants in
that lawsuit until appellants filed an amended complaint on October 1, 2010, which was
outside the limitations period. They also argued that appellants could not seek damages for
injuries suffered by the decedent for the same reason offered by Kirchner.
Appellants did not file responses to appellees’ motions to dismiss. After appellants’
response time had lapsed, appellees submitted a proposed order of dismissal to the circuit
court. On February 3, 2012, the circuit court granted appellees’ motions and dismissed
appellants’ complaint with prejudice. Subsequently, appellants filed a motion for the circuit
court to reconsider its decision, and they requested a hearing on the motions. The circuit
court did not hold a hearing, nor did it act on the motion to reconsider. Therefore, the
motion to reconsider was deemed denied by operation of law. Appellants timely filed a notice
of appeal.
The court of appeals affirmed the circuit court’s order in Worden v. Kirchner, supra. We
subsequently granted appellants’ petition for review. When this court grants a petition for
review, we treat the appeal as if it had been originally filed in this court. McNutt v. Yates,
2013 Ark. 427, ___ S.W.3d ___.
Appellants first argue that the circuit court erred in granting appellees’ motions for
“summary judgment” before the completion of discovery. In support of this argument,
appellants refer us to our decision in First National Bank v. Newport Hospital & Clinic, Inc., 281
Ark. 332, 663 S.W.2d 742 (1984), where we held that a plaintiff is entitled to have the benefit
of adequate discovery “as the nature of the case requires” before a motion for summary
4
Cite as 2013 Ark. 509
judgment should be granted. First Nat’l Bank, 281 Ark. at 335, 663 S.W.3d at 744.
However, in this case, appellants did not alert the circuit court that any discovery efforts were
ongoing that were pertinent to their defense of motions to dismiss, nor did they urge the
court to delay consideration of the motions to dismiss until discovery was completed.
Therefore, it is clear that appellants failed to bring this issue to the attention of the circuit
court. It is well settled that this court will not consider arguments raised for the first time on
appeal. Scudder v. Ramsey, 2013 Ark. 115, ___ S.W.3d ___. Moreover, to prevail on this
issue, appellants had to show that additional discovery would have changed the outcome of
the case. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995); Jenkins v. Int’l Paper Co.,
318 Ark. 663, 887 S.W.2d 300 (1994). Appellants have failed to meet this burden.
Accordingly, we affirm on this point.
Next, appellants contend that they alleged sufficient facts in their complaint to survive
Kirchner’s motion for dismissal under Rule 12(b)(6). Specifically, they argue that their
complaint clearly stated facts pertaining to the care that the decedent received, the negligence
of Kirchner, and their claims for damages.
Our standard of review regarding a motion to dismiss is well established. In reviewing
a circuit court’s decision on a motion to dismiss, we treat the facts alleged in the complaint
as true and view them in the light most favorable to the plaintiff. Deer/Mt. Judea Sch. Dist.
v. Kimbrell, 2013 Ark. 393, ___ S.W.3d ___. In testing the sufficiency of a complaint on a
motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and
the pleadings are to be liberally construed. Baptist Health v. Murphy, 2010 Ark. 358, 373
5
Cite as 2013 Ark. 509
S.W.3d 269. Our standard of review for the granting of a motion to dismiss under Rule
12(b)(6) is whether the circuit judge abused his or her discretion. St. Vincent Infirmary Med.
Ctr. v. Shelton, 2013 Ark. 38, ___ S.W.3d ___.
Arkansas Rule of Civil Procedure 8(a)(1) requires that a complaint state facts, not mere
conclusions, in order to entitle the pleader to relief. Born v. Hosto & Buchan, PLLC, 2010
Ark. 292, 372 S.W.3d 324. Only facts alleged in the complaint are treated as true, not the
plaintiff’s theories, speculation, or statutory interpretation. Dockery v. Morgan, 2011 Ark. 94,
380 S.W.3d 377. Rules 8(a)(1) and 12(b)(6) must be read together in testing the sufficiency
of a complaint. Id. In an action concerning medical injury, the elements to be proved are the
applicable standard of care, that the medical provider failed to act in accordance with that
standard, and that such failure was a proximate cause of the plaintiff’s injuries. Ark. Code
Ann. § 16-114-206 (Repl. 2006); Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002).
The gravamen of appellants’ claim against Kirchner is the allegation that Kirchner
“deviated from the acceptable standard of care resulting in the misdiagnosis of Plaintiff, Alfred
Spires’s condition delaying life saving treatment on June 27, 2008.” However, the complaint
provides no facts in support of this allegation. Bereft of any factual support, this statement is
conclusory, as it does not state in specific terms how Kirchner “deviated from the acceptable
standard of care resulting in the misdiagnosis” of the decedent. Moreover, the complaint does
not contain sufficient facts on the element of proximate causation. In this regard, the
complaint states only that “[a]s a proximate cause of the aforesaid actions and negligence,
Plaintiffs have sustained damages.” Yet, the complaint fails to allege how Kirchner’s actions
6
Cite as 2013 Ark. 509
—or lack thereof—specifically caused the decedent’s death. We conclude that these
conclusory statements are not sufficient under the Arkansas Rules of Civil Procedure, which
identify Arkansas as a fact-pleading state. See Ark. R. Civ. P. 8(a)(1); see also DeSoto Gathering
Co., LLC v. Smallwood, 2010 Ark. 5, 362 S.W.3d 298. For this reason, the circuit court did
not abuse its discretion in granting Kirchner’s motion to dismiss.
Next, appellants argue that the claims they asserted against appellees Arkansas Health,
Baptist Health, and Baptist MedCare are not barred by the statute of limitations. Appellants
maintain that they filed their complaint in the original action within the statute of limitations.
Further, appellants contend that the amended complaint in that lawsuit naming these appellees
as defendants related back to the date of the original complaint pursuant to Arkansas Rule of
Civil Procedure 15(c) (2013), thereby satisfying the statute of limitations.
In their motions to dismiss, appellees Arkansas Health, Baptist Health, and Baptist
MedCare did not argue that appellants failed to refile their complaint within the one-year
period following the nonsuit, as accorded by the savings statute found at Arkansas Code
Annotated section 16-62-102(c)(2) (Repl. 2005). Instead, it was their argument that, in order
to invoke the protections of the savings statute, the appellants must have commenced the
original action against them within the statute of limitations. See, e.g., Smith v. Sidney Moncrief
Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003) (holding that a plaintiff must
timely commence the original lawsuit for a savings statute to apply). Here, the statute of
limitations for appellants’ cause of action against appellees was two years pursuant to Arkansas
Code Annotated section 16-114-203 (Repl. 2006). See St. Paul Mercury Ins. Co. v. Circuit Ct.
7
Cite as 2013 Ark. 509
of Craighead Cnty., 348 Ark. 197, 73 S.W.3d 584 (2002) (holding that the two-year statute-of-
limitations period for medical-malpractice actions set forth in section 16-114-203 applies to
all causes of action for medical injury, including wrongful-death actions). The alleged
wrongful acts occurred on June 27, 2008. Therefore, the statute of limitations expired two
years later on June 27, 2010. As alleged by appellees, appellants filed the complaint in the
original action on June 24, 2010, a few days before the statute of limitations expired.
Subsequently, on October 1, 2010, appellants filed an amended complaint adding appellees
as defendants. However, appellants filed this October 1, 2010 amended complaint against
appellees outside the two-year statute of limitations, as this period expired on June 27, 2010.
Because appellees were not named as party defendants until after the statute of limitations had
expired, the savings statute does not apply, and the suit against them is time-barred.
Nonetheless, appellants argue that their claims are not barred by the statute of
limitations because the amended complaint filed on October 1, 2010, relates back to the filing
of the initial complaint on June 24, 2010. This argument is based on the provisions of
Arkansas Rule of Civil Procedure 15(c) (2013):
(c) Relation Back of Amendments. An amendment of a pleading relates back
to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading, or
(2) the amendment changes the party or the naming of the party against whom
a claim is asserted if the foregoing provision (1) is satisfied and, within the
period provided by Rule 4(i) for service of the summons and complaint, the
party to be brought in by amendment (A) has received such notice of the
institution of the action that the party will not be prejudiced in maintaining a
8
Cite as 2013 Ark. 509
defense on the merits, and (B) knew or should have known that, but for a
mistake concerning the identity of the proper party, the action would have
been brought against the party.
However, appellants neglected to raise this issue in the circuit court. It is axiomatic
that this court will not consider arguments raised for the first time on appeal. Boellner v.
Clinical Study Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745. Because this issue was not raised
below, there is nothing in the record to support appellants’ argument that they met the
relation-back requirements set out in Rule 15(c)(2). Therefore, we are unable to decide this
issue.
Finally, appellants contest appellees’ assertions that they could not bring claims on
behalf of the decedent. We need not address this argument. Because we are affirming the
circuit court’s dismissal order on other grounds, any question of appellants’ ability to assert
claims on behalf of the decedent is moot. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290
(2001) (observing that an issue becomes moot when any judgment rendered would have no
practical legal effect upon a then existing legal controversy).
Affirmed; court of appeals’ opinion vacated.
Elizabeth Worden and Douglas Spires, pro se appellants.
Friday, Eldredge & Clark, LLP, by: Kathryn A. Kirkpatrick, for appellees.
9