concurring. I concur in the result.
One issue in this case raises the identical issue that this court confronted in Hertlein v. St. Paul Fire and Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996) — whether a general applicability clause in the Medical Malpractice Act operates to eliminate a separate cause of action for wrongful death which arises out of a medical injury. The relevant clause in the Medical Malpractice Act reads: “This subchapter 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). It is clear to me that this clause must be read in the context of the Medical Malpractice Act (Ark. Code Ann. §§ 16-114-201 through 16-114-209 (1987 & Supp. 1995)), which relates to causes of action for medical negligence, and not as a repealer to our separate Wrongful Death Act (Ark. Code Ann. § 16-62-102 (Supp. 1995)).
I dissented in Hertlein and said:
Because of today’s opinion, the survivor of a person who dies two years after suffering a medical injury has no cause of action for wrongful death. Wrongful death actions have existed in this state since 1883. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994) (citing Act 53 of 1883). Had the General Assembly desired to repeal the wrongful death cause of action for medical injuries in any respect, it could easily have done so in 1979 by a specific repealer in the Medical Malpractice Act. It did not. Nor did it do so after our decision in Brown v. St. Paul Mercury Ins. Co., supra, where we expressly affirmed use of the statute of limitations under the Wrongful Death Act for a medical injury. Now, almost 20 years after the enactment of the Medical Malpractice Act, we hold that a repeal was contemplated. I cannot make that interpretative leap.
The majority decision in Hertlein decides the issue in this case. I still maintain, though, that had the General Assembly intended to repeal the wrongful death cause of action for medical injuries, it could have clearly and specifically done so in 1979. It did not. It takes more, in my opinion, than a general applicability statement to eliminate a cause of action in Arkansas. I commend this matter to the General Assembly for renewed legislative scrutiny.