MALPRACTICE LAWSUIT SENT BACK TO PINE BLUFF COURT FOR NEW TRIAL

By Ray King/OF THE COMMERCIAL STAFF

The Arkansas Court of Appeals on Wednesday said a Jefferson County Circuit Court judge was wrong when he dismissed a medical malpractice and wrongful death lawsuit because of a lack of jurisdiction.

The Appeals Court said Judge Berlin Jones, “erred as a matter of law,” and sent the case back to Jones to reinstate the complaint.

At issue was a suit filed by Florine McDonald and Babbye Davis as the representatives of the late Miriam Davis against Dr. Randel Brown and Jefferson Hospital Association, dba Jefferson Regional Medical Center, in 2003.

Davis was injured in an automobile accident on Jan. 31, 2002, and taken to JRMC where Brown was the attending physician and according to the complaint, died the same day.

The initial complaint against Brown, the hospital and others was filed Jan. 17, 2003, by McDonald, who was appointed as personal representative of the estate six days later. On Feb. 13, she filed an amended complaint.

Later that year, McDonald and Davis were named co-representatives of the estate, and filed other amended complaints against Brown and JRMC.

Brown and the hospital each filed motions asking that the lawsuit be dismissed, claiming that McDonald filed the complaint before being named personal representative for the estate, and because no letters of administration were issued.

In its ruling, the appeals court said the 2007 General Assembly adopted Act 438, which amended provisions relating to letters of administration, and said an order “appointing an administrator “empowers the administrator to act and that letters of administration are not necessary to empower the person appointed to act for the estate.”

The state Supreme Court ruled later that year that Act 438 was procedural “and was intended to be applied retroactively.”

The Appeals Court said although McDonald filed her original complaint before being appointed to represent Ms. Davis’ estate, the amended complaint was filed after her appointment, and because of that, the lawsuit should be reinstated.