dissenting. For the third time in a year, the majority has erred in its application of the two-year statute of limitations to a wrongful-death claim that arose from a medical injury. See Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996); Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996). The catalyst for these errant decisions was the court’s analysis of the law in Hertlein v. St. Paul Fire & Marine Ins. Co. A review of the law to that point reveals the fallacies in the court’s opinion from which I respectfully dissent.
Like this case and Pastchol, the issue presented in Hertlein was whether the two year or three-year statute of limitations applies in a wrongful-death action where the death is allegedly caused by a medical injury. For medical malpractice, “all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.” Ark. Code Ann. § 16-114-203(a) (Supp. 1995). The medical malpractice act “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). Under the wrongful death act, the action must be commenced “within three years after the death of the person alleged to have been wrongfully killed.” Ark. Code Ann. § 16-62-102(c)(1) (Supp. 1995).
In Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), Mr. Matthews sued under medical malpractice and wrongful-death theories. The malpractice occurred on September 14, 1964, when the laboratory erroneously reported that tissues taken from Mrs. Matthews were not cancerous. The error was discovered on January 29, 1965, and Mrs. Matthews died on November 28, 1965. Mr. Matthews filed suit on June 14, 1967- — nearly three years after the negligent act. This court was forced to determine whether the two-year statute of limitations for medical malpractice or the three-year wrongful-death statute was controlling. Writing for the majority, Justice George Rose Smith offered this analysis:
In our opinion each statute is partly controlling. It is essential to recognize that two separate causes of action are being asserted by the appellant in his capacity as administrator of his deceased wife’s estate. The complaint seeks in part to recover compensation for the physical and mental anguish suffered by Mrs. Matthews before her death. At common law that cause of action would not have survived the death of Mrs. Matthews, but under our survival statute it may be asserted by her personal representative. In that situation the personal representative is asserting the decedent’s cause of action and must therefore bring suit within the period allowed by that statute of limitations which would have governed if the injured person had not died. That being the two-year malpractice act in this case, the administrator’s attempt to assert Mrs. Matthews cause of action for her physical and mental pain and suffering is barred, because the suit was not filed within two years after the wrongful act complained of.
Matthews, 245 Ark. at 249, 432 S.W.2d at 487-88 (citations omitted). We then recognized that the remaining statutory wrongful-death claim, as opposed to the survival claim, was not subject to the medical malpractice two-year limitations period. As a final justification for applying both statutes, we stated that public policy favors applying the longer statute of limitations when the issue is doubtful. Matthews, 245 Ark. at 250, 423 S.W.2d at 488.
The Medical Malpractice Act was enacted in 1979 and superseded any inconsistent provision of law. 1979 Ark. Acts 709, § 9; Ark. Code Ann. § 16-114-202 (1987). However, eight years after the enactment of the current Medical Malpractice Act, this court indicated that Matthews was still viable. In Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987) (Brown I), a patient at an alcoholism treatment center walked through an unlocked door to the roof of a building and jumped or fell to his death. Nearly three years later, the personal representative sued. We struggled with whether Brown’s death was a “medical injury” thereby invoking the two-year medical malpractice statute of limitation. In holding the three-year statute of limitations statute applicable, “we [stood] fast on our ruling in Matthews.” Brown I, 292 Ark. at 561, 732 S.W.2d at 131. We applied Matthews despite the fact that it interpreted former law:
Our wrongful death statute created a new and separate cause of action which could arise if death was caused by any wrongful act and which carries its own statute of limitations as part of that right. For this reason, the medical malpractice statute of Hmitations is irrelevant when a patient dies from his injuries before the two-year period has run.
Brown I, 292 Ark. at 562, 732 S.W.2d at 132. We then reversed the lower court and held that the wrongful-death action was timely filed.
Subsequently, we overruled Brown I in Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991). In Bailey, a nursing home resident left the home unnoticed in his wheelchair and was struck and killed by a pickup truck. Relatives sued, and after the jury returned a verdict for the nursing home, the plaintiffs appealed, challenging the instructions on negligence. In our analysis of the negligence instructions, we looked to the Brown I definition of “medical injury.” We concluded that the facts in Brown I did not fit within the definition of medical injury, and we overruled Brown I to that limited extent. Bailey, 307 Ark. at 19-20, 817 S.W.2d at 415. The effect of this analysis on Brown I was that only the wrongful-death statute of limitations was applicable because the injury was not a “medical injury” and, thus, the injury did not fall within the ambit of the Medical Malpractice Act. The language in Bailey did not speak to the Matthews rationale in Brown I, and as a result, Matthews remained unaffected.
We revisited the Brown saga in Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992) (Brown III). The issue in this third appeal was whether the case should be dismissed due to the untimely filing of the pleadings. We held that Brown I had decided that this was a wrongful-death action and that the three year statute of limitations applied. “Because this is a wrongful death action, compliance with the medical malpractice statutes, including § 16-114-204, is irrelevant. The doctrine of law of the case clearly applies.” Brown III, 308 Ark. at 363, 823 S.W.2d at 909. The case was reversed for a trial on the merits. Again, Brown III makes no mention of Matthews.
At this stage in the case history, Matthews, as explained in Brown I, is still good law. The break in the Matthews position began with a narrow decision in 1993. In Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), the plaintiff filed the complaint after the two-year medical malpractice statute had run but before the three-year wrongful-death statute had run. The complaint alleged that the doctors failed to properly diagnose and treat the deceased, resulting in his death. The doctors moved for a summary judgment on the grounds that the plaintiff had failed to comply with the sixty-day notice of intent to sue. That provision was nullified by our decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), but in Ruffins we applied the notice provision because the law was extant at the time the case was tried. We observed that in light of Weidrick v. Arnold, “this decision has very little significance as a precedent.” Rifffins, 313 Ark. at 177. We implemented the plain language of the medical malpractice act in affirming the trial court’s dismissal of the suit for failure to give the requisite notice. Under the statutes in force at the time the case was tried, there was no doubt that the medical malpractice claim was barred. We then addressed the wrongful-death portion of the claim:
The plaintiff-appellant tacitly asks us to ignore the clear language of the statute by arguing that our cases have recognized that medical malpractice and wrongful death are separate causes of action even though they may arise from the same negligent act and asserts this action is solely for wrongful death. Accordingly, she contends that she did not have to give the “notice of intent to sue” that is required by the Medical Malpractice Act. . . . She bolsters her argument by quoting a sentence of dictum from [ Brown I\ that states the Medical Malpractice Act is irrelevant to wrongful death actions.
Ruffins, 313 Ark. at 177-78, 853 S.W.2d at 879. The Ruffins court distinguished Matthews because:
[T]hat holding does not decide the issue in this case. The issue here, regardless of which statute of limitations controls, is whether the then required notice provision of the Medical Malpractice Act ... is applicable. Since this is undisputedly a suit for “medical injury,” the Medical Malpractice Act applies, and at the time this case arose, it required the sixty-day notice of intent to sue. The wrongful death statute does not require notice. . . . The Medical Malpractice Act was enacted long after the wrongful death statute was enacted, and the Medical Malpractice Act expressly “supersedes any inconsistent provision of law. . . We have no choice on the notice issue as we did when there were two statutes of limitations that were applicable.
Ruffins, 313 Ark. at 178, 853 S.W.2d at 879. The court further distinguished Matthews and Brown I in that after Bailey overruled Brown I, “the question of whether a wrongful death resulting from medical injury was subject to the period of limitations of the Medical Malpractice Act was an open question, and we had made no holdings whatsoever about the notice issue.” Ruffins, 313 Ark. at 179, 853 S.W.2d at 880.
The Ruffins court, thus, admitted that the case was of little precedential value. The court also stated that it dealt with the notice provision of the medical malpractice act as opposed to the statute of limitations. Within this narrow scope, Ruffins dictum was overbroad to the extent it intimates that the wrongful death statutes are inconsistent with the medical malpractice statutes simply because they overlap. As Brown I makes clear, the legislature has provided for two separate causes of action in wrongful-death cases, and Ruffins should be limited to effect that intent. To interpret the statutes differently would be to say that the General Assembly intended to give with the left hand what it takes away with the right.
Yet that is precisely what happened with our decision in Hertlein. Indeed, the majority relied only on Ruffins and the general repealer clause in the medical malpractice act when it held that the medical malpractice statute of limitations was exclusive of all causes of actions stemming from a medical injury because the wrongful-death statute of limitations was “an inconsistent provision of law.” Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. at 286, 914 S.W.2d at 305. The crux of the Hertlein decision rests on its interpretation of the repealer clause. Conspicuously absent from the opinion is a recitation of the applicable rules of statutory interpretation or an overruling of Matthews or Brown I.
When interpreting statutes, the first rule of construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Henson v. Fleet Mortgage Co., 319 Ark. 491, 892 S.W.2d 250 (1995). Yet the basic rule of statutory interpretation to which all other interpretive guides must yield is to give effect to the intent of the legislature. Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996); Henson v. Fleet Mortgage Co., supra. In ascertaining an act’s intent, the appellate court examines the statute historically, as well as the contemporaneous conditions at the time of the enactment, the object to be accomplished, the remedy to be provided, the consequences of interpretation, and matters of common knowledge within the court’s jurisdiction. Rogers v. Tudor Ins. Co., supra; Henson v. Fleet Mortgage Co., supra; City of Little Rock v. AT&T Communications of the S.W., Inc., 318 Ark. 616, 888 S.W.2d 290 (1994).
A statute of a general nature does not repeal a more specific statute unless there is a plain, irreconcilable conflict between the two. Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980); Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979). Thus, the treatment of a general repealer clause does not differ from the rules applicable to a repeal by implication. The fundamental rule of that doctrine is that a repeal by implication is not favored and is never allowed except when there is such an invincible repugnancy between the provisions that both cannot stand. Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994); Uilkie v. State, 309 Ark. 48, 827 S.W.2d 131 (1992). “[A] repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject matter of a former statute and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new.” Uilkie v. State, 309 Ark. at 53, 827 S.W.2d at 134, quoting Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964); see also Bryant v. English, 311 Ark. 187, 843 S.W.2d 308 (1992) (constitutional provision). Hence, the older act will be “repealed” if it is apparent that the latter act was intended to substitute for the prior one. Uilkie v. State, supra.
The error in the Hertlein decision is that it does not recognize that the statutes of limitations for the separate causes of action can be read harmoniously as is demonstrated by this court’s decisions in Matthews v. Travelers Indemnity Ins. Co., supra, and Brown v. St. Paul Mercury Ins. Co. (Brown I), supra. This court’s broad dictum in Riiffins does not diminish this fact. In the absence of the General Assembly’s specific directive to limit a cause of action for wrongful death, this court erred in producing its own limitation without sufficient justification for doing so. Unfortunately, that error has been compounded by the court’s adherence to Hertlein in Pastchol v. St. Paul Fire & Marine Ins. Co., supra, and now this case.
The question then becomes what effect the time-honored doctrine of stare decisis has on the faulty Hertlein decision. I turn to this court’s discussion of stare decisis in 1968:
This policy of adhering to precedent to give predictability to the law, and to avoid unsettling things, is fundamental to the common law. So too is the power to overrule a line of decisions, even those under which property rights were acquired. Carter Oil Co. v. Weil, 209 Ark. 653, 192 S.W.2d 215 (1946). Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Any rule of law not leading to the right result calls for rethinking and perhaps redoing. Llewellyn, Jurisprudence, 217 (1962). The proper limitations on the doctrine of stare decisis have ever been recognized by this Court. “Precedent, it is said, should not implicitly govern, but discretely guide . . .”, Roane v. Hinton, 6 Ark. 525, 527 (1846).
Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968). This court has said that a revision of erroneous case law is preferred “rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.” Brickhouse v. Hill, 167 Ark. 513, 519, 268 S.W. 865, 867 (1925), quoting Whittington v. Flint, 43 Ark. 504 (1884) (overruling five prior decisions). Later in the Brickhouse opinion, this court commented that it is our duty to correct and not to perpetuate a decision founded in error.
Legislative silence can be a factor in determining the viability of a court’s statutory interpretation, but such reliance is treacherous and should not control the outcome. Despite the 1996 Hertlein opinion, the General Assembly in its 1997 session failed to offer any pronouncement on this issue one way or the other. However, the General Assembly also took no action after Brown I, which reaffirmed the Matthews principles. Considering the Legislature’s inaction both before and after this court’s decisions in Hertlein and Ruffins, the General Assembly’s refusal to speak is entitled to no weight.
Hertlein is not based on sound legal principles, and the decision limits a cause of action resulting in horrendous consequences without properjudicial or legislative justification. It is our duty to correct this situation and not to perpetuate a decision founded in error. Brickhouse v. Hill, supra.
I respectfully dissent.
Arnold, C.J., and Glaze, J., join.