dissenting. I respectfully dissent from the Court’s holding today for three reasons: (1) this issue was decided eight years ago and today’s overruling of Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984) significantly detracts from the doctrine of stare decisis; (2) the Court today violates the separation of powers of the Arkansas Constitution when it holds that a court-imposed Rule of Civil Procedure preempts a statute enacted by the legislature after the court promulgated the Rules; and (3) the Court misconstrues the application of Ark. R. Civ. P. 81(a) to Ark. Code Ann. § 16-114-204 (1987). I write not because the individual statute, Ark. Code Ann. § 16-114-204, warrants the attention but because I believe the Court today arrogates to itself the prerogatives of the legislature.
I. STARE DECISIS
As the majority notes, we held that Ark. R. Civ. P. 3 (“Rule 3”) did not supersede or preeempt Ark. Code Ann. § 16-114-204 (“§ 16-114-204”). Jackson v. Ozment, supra. The issue in this case was squarely presented in Jackson: whether Rule 3, as amended in 1983, superseded the statute enacted in 1979. We held that it did not.
In Dawson v. Gerritson, 290 Ark. 499, 720 S.W.2d 714 (1986) (“Dawson I”), we indicated a willingness to reexamine our holding in Jackson. Jackson and a related case, Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984), were the products of a sharply divided court, perhaps leaving an impression that the underpinnings of those cases were infirm. But a disposition to reexamine is not a commitment to reverse, merely a proposal to revisit. Six years have elapsed, during which Cox v. Bard, 302 Ark. 1, 786 S.W.2d 570 (1990) and Ofili v. Osco Drug, Inc., 300 Ark. 431, 780 S.W.2d 11 (1989), and Dawson v. Gerritson, 295 Ark. 206, 748 S.W.2d 33 (1989) (“Dawson II”) were decided. After reexamination of Jackson and its several companion cases, I believe the position of the majority in Jackson and Simpson was sound and merits affirmance.
Stare decisis is the principal reason for upholding the validity of § 16-114-204 today. Stare decisis is a policy of adhering to precedent that gives predictability to the law. To avoid unsettling things, it is fundamental to the common law. Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a breakdown becomes unavoidable. See Parish v. Pitts, et al.,255 Ark. 1239, 1252, 429 S.W.2d 45 (1968). There are limits to the effects of stare decisis; precedent may not implicitly govern but should discretely guide the Court. See, Id. (citations omitted.) In this case, there is no reason to overturn precedent.
In more than a decade since § 16-114-204 was passed as Act 709, numerous challenges to the act, including constitutional arguments of due process and equal protection have been repelled: See Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983); Dawson v. Gerritson, 290 Ark. 499, 720 S.W.2d 714 (1986), (“Dawson I”); Dawson v. Gerritson, 295 Ark. 706, 748 S.W.2d 33 (1988) (“Dawson II”); Lambert v. Beverly Enterprises, Inc., 753 F. Supp. 267 (W.D. Ark. 1990); Cox v. Bard, supra; Ofili v. Osco Drug, Inc., supra; Jackson v. Ozment, supra; and Simpson v. Fuller, supra.
There is no manifest injustice here. The facts show that the complaint was filed before notice was served. Upon receiving the “Motion to Dismiss” for failure to serve notice, plaintiff had a clear alternative to defending the motion and could have avoided the problem entirely. Plaintiff could have taken a voluntary nonsuit. Ark. R. Civ. P. 41(a). Plaintiff subsequently could have met the notice requirement, waited sixty days, and refiled suit within the one-year extension of the statute of limitations. See Ark. Code Ann. § 16-56-126 (1987). This is precisely the procedure we outlined in Dawson I.
Now the majority overrides the Arkansas Legislature, on perhaps the weakest ground available, and holds that the sixty-day notice is nothing more than “a cog in the wheel of civil procedure” and, hence, the prerogative of this court under Rule 3. Today’s decision directly overrules a 1984 decision without giving sufficient weight to the need for certainty, uniformity, and finality of result.
II. SEPARATION OF POWERS
I have previously noted my disagreement with the direction of the Court’s Separation of powers analysis concerning these issues. I dissented without opinion in Ricarte v. State, 290 Ark. 100, 718 S.W.2d 488 (1986); and joined in the dissenting opinion in State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990). I write to further express my disagreement with the direction the Court has taken in such matters.
The statute at issue is more than a mere “procedural cog.” Section 16-114-204 cannot be read as a single procedural rule enacted by the legislature. Rather, it is part and parcel of a series of substantive laws that completely supplant the common-law medical malpractice action. In particular, § 16-114-204 must be read in conjunction with § 16-114-203, the statute of limitations in a statutory medical injury case, and § 16-114-205, providing for the elimination of any allegation of damages in the complaint.
I set out the current statutory provisions for clarity, because the Court today invalidates those provisions, not merely the law as it stood when the lower court decided this case. The amended text is underlined:
§ 16-114-204. Notice of intent to sue.
(a) No action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed. Provided, service of the written notice of the alleged injuries and damages claimed may also be made by hand delivery.
(b) If the notice is served within sixty (60) days of the expiration of the period for bringing suit described in § 16-14-203, the time for commencement of the action shall be extended ninety (90) days from the service of the notice. When service is by certified or registered mail, the date of service of the notice shall be the date of mailing of the written notice.
First, and albeit as an aside, the legislature disagreed with some of our interpretations of the statute. In order to ameliorate the effects of those decisions, the legislature permitted delivery of the written notice by hand (responding to Cox, supra). The legislature also provided that the service date of the notice was the date of mailing the certified or registered letter. Finally, the legislature amended the extension of the statute of limitations from seventy to ninety days.
The statute, then, does several things: When read in conjunction with §16-114-205, it provides the basis for changing the form of the complaint: damages cannot be specified in the publicly-filed complaint but must be specified in the privately-mailed notice and by subsequent special interrogatory. The Court considered this provision this term. See Travis v. Hook, 307 Ark. 84, 817 S.W.2d 207 (1991) (reversing circuit court’s dismissal without prejudice and holding that amended pleading striking the dollar amount was sufficient, under Ark. R. Civ. P. 15(a) to fulfill the statutory requirement.1
The statutory scheme also provides that service of the notice to sue will automatically extend the statutory limitations period. So, for example, one reading of the statute permits a person to mail a notice of intent to sue on the last possible day, i.e., on the 730th day or two full years after the date of the tortious act. Service is complete on mailing and suit may subsequently be filed not less than sixty days later and not more than ninety days later. Another reading of the statute might be that the limitations period actually expired; plaintiff mails a certified letter on the 59th day after the expiration of the statutory limitations period; not less than sixty days later and not more than ninety days later, plaintiff files suit. Thus the language of § 16-114-204(b) (notice “served within sixty days of the expiration” of limitations period) arguably permits the filing of a valid complaint some five (5) months after the expiration of the statutory limitations period. While no one has attempted to argue these interpretations to the Court, such argument would certainly ameliorate the harsh consequences of the notice requirements. These are not implausible interpretations given the language of the statute.
The point of this exercise is that the notice requirement cannot be read alone and should not be read so restrictively. The sixty-day notice requirement is clearly more than a mere procedural step in the commencement of an action at law so as to bring it under Rule 3. Mechanically, it is that, of course. But as noted above, it is patently more than that. The notice requirement is an integral part of a statutory scheme intended to alleviate what the General Assembly of Arkansas saw as a matter of critical concern to the people of this state. That concern is forcefully expressed in the emergency clause:
It is hereby found, determined and declared by the General Assembly that the threat of legal actions for medical malpractice insurance which in turn causes and contributes to an increase in health care costs placing a heavy burden on those who can least afford such increases and that the threat of such action contributes to expensive medical procedures to be performed by physicians and others which otherwise would not be considered necessary and that this Act should be given effect immediately to help control the spiraling cost of health care.
The effect of today’s decision is the first step in unraveling the entire statutory scheme. Assuming § 16-114-205 (providing for a complaint without a prayer for a specific amount of damages) remains unchallenged, defendants now have only one means of ascertaining the monetary amount of the prayer in the complaint; that is by filing special interrogatories. Plaintiffs are arguably worse off than they were before: the effect of today’s decision reduces the statutory limitations period back to two years from, arguably, as much as two years and five months.
Finally, the Court’s interpretation of the statue today conflicts with the interpretation of the statute given by the federal courts in this state. In federal court, purely procedural rules are governed by federal law, not by state law. In Lambert v. Beverly Enterprises, Inc., 753 F. Supp. 267, the federal district court applied § 16-114-204 because the court interpreted it as a state substantive law that had to be applied in a diversity case. Were the notice requirement a “mere procedural cog,” it would not apply in federal court at all.
As Justice Darrell Hickman said:
I question the opinion in this case which contains dictum that could lead to an extension of this court’s rule making power. We do not need to extend that power: we need to limit it and use it with careful restraint. That we have not done.
Curtis v. State, 301 Ark. 208, 216, 783 S.W.2d 47 (1990) (Hickman, J., dissenting). There are some “procedural” elements of the law that are beyond this Court’s powers. Statues of limitations are one example. I believe § 16-114-204 does not conflict with this Court’s Rules of Procedure any more than statutes of limitations. It conflicts with our Court Rules less so than does § 16-114-205. Yet, the Court today tells the legislature that it may not enact such a statute in the future absent a modification to the state constitution. I cannot agree with the majority on this point.
III. APPLICATION OF RULE 81(a)
The Court today too narrowly construes the application of Ark. R. Civ. P. 81(a) to § 16-114-201 et seq. As discussed above, this is a comprehensive statutory scheme that completely replaces the common-law action for medical malpractice. It regulates the statute of limitations, the content of the complaint concerning allegations of damages, the allocation of burdens of proof at trial, limitations on expert witnesses, the timing of future payments for damages, and the consequences of deliberately false pleadings as well as the notice of intent to sue. Either this entire section must stand together or it must fall. Certainly, though, until today’s decision, it was generally understood that the legislature abolished common law actions for medical malpractice.
The majority concludes that the General Assembly cannot do what it attempted to do here because it did not go far enough. The Court leaves open to the General Assembly the possibility that it might adopt mandatory arbitration procedures, as other states have done, or, as the securities industry has done. The court previously noted as much in Gay v. Rabon:
We note that recent statutes providing special pretrial procedures in medical malpractice actions, such as the mandatory requirement that a claim for medical malpractice be submitted to a review board before filing an action, have been enacted in a number of states and it appears that a majority of courts have upheld them. Lacey v. Green, 428 A.2d 1171 (Del. Super. 1981) and cases cited therein. Obviously, this precondition is more burdensome and delaying than the 60 day notice in issue here.
Gay, 280 Ark. 5, 652 S.W.2d 836, 838. I do not read today’s opinion any differently.
I cannot agree that Ark. R. Civ. P. 81(a) can be circumvented by limiting the exception to “special proceedings created exclusively by statute where a special procedure is appropriate and warranted.” The majority has redefined Arkansas law by declaring that medical malpractice is still an action at common-law. The holding implicitly moots the entire statutory scheme — not simply the notice requirement — enacted by the legislature to limit common-law liability in medical malpractice actions. The majority opinion certainly goes beyond the issue in this case, and it opens the possibility that none of the statutory modifications to the law of professional liability are valid.
Moreover, the language from the majority opinion quoted above implies that this Court does not consider a “special proceeding” either “approprite” or “warranted” in medical malpractice actions. I cannot agree that this Court may impose its own views as to the “appropriateness” of substantive legislation. Whether or not the statutory scheme is warranted is not a question for this Court; it is solely a question for the General Assembly.
It is a safe prediction that today’s decision will at once increase and compound the confusion begun with Ricarte and perfected in Sypult as to which branch of government has the final word in the enactment of rules of evidence and procedure. For further discussion and for the source of much of this dissent, see M. Gitelman & J. Watkins, No Requiem for Ricarte: Separation of Powers, the Rules of Evidence, and the Rules of Civil Procedure, 1991 Ark. L. Notes, at 27.
For the foregoing reasons, I respectfully dissent.
Compared to§ 16-114-204,§ 16-114-205 is far more intrusive on the Rules of Civil Procedure. Section 16-114-205 represents a partial return to pre-reform days when there were numerous “forms of complaint” and filing the wrong form with the wrong court or for the wrong reason was enough to have the complaint dismissed. This is a purely procedural matter.