Worden v. Kirchner

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
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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.

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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

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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

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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

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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

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—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.

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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

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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.

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