LITTLE ROCK — The state Supreme Court struck down another provision of Arkansas' tort reform law Thursday.
LITTLE ROCK — The state Supreme Court struck down another provision of Arkansas’ tort reform law Thursday.
The high court declared unconstitutional a provision of the Civil Justice Reform Act of 2003 requiring that expert testimony in a medical malpractice case be given by a health care provider of the same specialty as the defendant.
The provision dictates court procedures, which are outside the Legislature’s authority, justices concluded.
The court previously has struck down provisions of the law regarding evidence, damages and permissible defenses.
The ruling came in a lawsuit filed by Teresa Broussard of Waldron, who claims she was injured during a procedure at St. Edward Mercy Medical Center in Fort Smith and that two doctors who saw her injury failed to secure proper treatment for her.
Broussard developed severe burns to her neck and upper chest after undergoing thyroid surgery at the hospital in 2006. She alleges that because of negligence by Drs. Stephen Seffense and Michael Coleman, she did not receive proper treatment for the burns until about three weeks after they appeared.
The defendants argued that Broussard’s expert witness, Dr. Terrence Baker of Baltimore, could not testify in the case because he was not of the same specialty as Seffense or Coleman. Sebastian County Circuit Judge Stephen Tabor agreed and dismissed the suit.
In oral arguments before the Supreme Court last week, an attorney for Broussard argued that the provision of state tort reform law regarding the qualifications of expert witnesses is unconstitutional because it is the province of the judicial branch of state government, not the legislative branch, to establish procedural matters for the courts.
In its unanimous opinion Thursday, the Supreme Court reversed Tabor’s ruling and sent the case back to Sebastian County Circuit Court for new proceedings.
“The authority to decide who may testify and under what conditions is a procedural matter solely within the province of the courts pursuant to Section 3 of Amendment 80 and pursuant to the inherent authority of common-law courts,” Chief Justice Jim Hannah wrote in the opinion.
Section 3 of Amendment 80 to the Arkansas Constitution states in part, “The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts.”
The defendants also claimed that Tabor’s ruling should be upheld because Broussard’s complaint alleges negligence only in the operating room, not occurring after the surgery. The Supreme Court said it was sending the case back to circuit court for a determination of whether Broussard may amend her complaint.
State Sen. Gilbert Baker, R-Conway, who co-sponsored the Civil Justice Reform Act, expressed disappointment Thursday in the court’s ruling.
“Once again the court is, I believe, moving into an area where the people have spoken through their elected representatives, and I know it’s a thoughtful approach to their view, but you have three branches of government that need to be in balance here,” he said.
“I think it’s important as we move forward for the people to have a voice through their Legislature … one that is not overturned by the courts,” Baker said.
Thursday’s Supreme Court ruling is the second in two months striking down a portion of the tort reform law. In December, the court ruled that a provision of the law limiting punitive damages was unconstitutional because the Legislature had exceeded its authority in passing it.
In 2009, the Supreme Court ruled that provisions of the law limiting evidence of medical costs and allowing defendants to reduce their liability by naming “non-parties at fault” were unconstitutional for the same reason.