Plaintiff, the administrator of the decedent’s estate, filed this action against the defendants, ER of Arkansas, an emergency medical care professional association, and David Beam, Robert Parkman, and Lowell Ozment, medical doctors. The gravamen of the complaint is that the defendant doctors failed to properly diagnose and treat the deceased, failed to refer him to others for proper care, and that their negligence resulted in the death of the decedent. The prayer for damages asks only for those damages which can be assessed under the wrongful death statute. Plaintiff filed this action after the two-year statute of limitations provided by the Medical Malpractice Act had run, but before the three-year statute of limitations provided by the Wrongful Death Act had run.
Some time later, and after the three-year statute of limitations for wrongful death had also passed, the defendant doctors each filed, either motions to dismiss or motions for summary judgment and alleged that the plaintiff had not complied with the notice provisions of the Medical Malpractice Act. The plaintiff responded that she filed suit for wrongful death within the three-year limitation period and did not have to comply with the notice provisions of the Medical Malpractice Act, contained in Ark. Code Ann. § 16-114-204 (Supp. 1991). The trial court ruled that the plaintiffs suit had not been commenced before the running of the statute of limitations under the then existing law because the plaintiff had not given notice of intent to sue as required by the Medical Malpractice Act before the statute of limitations ran. Accordingly, the trial court dismissed the suit. Plaintiff appeals. We affirm the ruling of the trial court.
As a preliminary matter we note that in view of our decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), this decision has very little significance as a precedent. It is, however, obviously significant to the parties, and fairness requires that we apply the law extant at the time this case was tried.
The Medical Malpractice Act, which was enacted in 1979, provides that it applies to all causes of action for medical injury. Ark. Code Ann. § 16-114-202 (1987). An “action for medical injury” is “any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury,” Ark. Code Ann. § 16-114-201(1) (1987), and the act “applies to all causes of action for medical injury.” Ark. Code Ann. § 16-114-202 (1987) (emphasis added). A medical injury is defined as “any adverse consequence arising out of or sustained in the course of professional services being rendered by a medical provider.” Ark. Code Ann. § 16-114-201(3) (1987). Thus, the statute, by its clear language, applies to the facts of this case, and, under the then existing law, Ark. Code Ann. § 16-114-204 (1987), written notice of intent to sue “within 60 days of the expiration of the period for bringing suit” was required. Significantly, the statute additionally contains the provision that it “shall supersede any inconsistent provision of law.” Ark. Code Ann. § 16-114-202 (1987). Nothing more need be said about the Medical Malpractice Act. Its language is clear, and it mandates that the ruling of the trial court be affirmed.
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 one 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 at Ark. Code Ann. § 16-114-204. She bolsters her argument by quoting a sentence of dictum from Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1991), that states the Medical Malpractice Act is irrelevant to wrongful death actions.
In order to decide the issue, it is first necessary for us to look at our cases and fairly determine what they held. In Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), which was decided before the current Medical Malpractice Act became law, the complaint was for a medical injury. The question on appeal was whether the then existing medical malpractice statute of limitations or the wrongful death statute of limitations should apply. Recognizing that medical malpractice and wrongful death were separate statutory actions with conflicting limitations provisions, we said that “each statute is partly controlling.” Id. at 249, 432 S.W.2d at 487. We chose to apply the wrongful death statute of limitations, which was more liberal, on policy grounds. However, that 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, Ark. Code Ann. § 16-114-204 (Supp. 1991), is applicable. Since this is undisputedly a suit for a “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. See Ark. Code Ann. § 16-62-102 (1987). 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.” Ark. Code Ann. § 16-114-202 (1987). We have no choice of policy on the notice issue as we did when there were two statutes of limitations that were applicable. Nothing more need be said on this issue, and it too is decisive of this case.
In addition, contrary to the assertions of appellant, our case law has reserved ruling on the issue of whether actions for wrongful death resulting from medical malpractice are subject to the current Medical Malpractice Act. In Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987) (Brown I), we wrote that the decedent, Roy DeWayne Brown, died from a medical injury, but that the three-year statute of limitations contained in the wrongful death statute applied. We did not discuss the notice provision of the Medical Malpractice Act, and made no holding on the issue of notice. The holding of the case related only to the statute of limitations. We based the Brown I holding on our earlier holding in Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), which was decided before the Medical Malpractice Act was enacted. However, in Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991), we held that we were in error in Brown I when we wrote that the decedent died from a medical injury, and we overruled Brown I to that extent. Thus, after Bailey, 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.
In Dawson v. Gerritsen, 295 Ark. 206, 748 S.W.2d 33 (1988), we sought to clear up any misunderstanding about the issue and wrote, “We do not decide whether the legislature intended that actions for wrongful death resulting from medical malpractice be subject to Act 709 [the Medical Malpractice Act]. . . .” Id. at 209, 748 S.W.2d at 34. It is hard to think of a clearer way to say that we reserved ruling on the issue.
In Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992) (Brown III), which was the third appeal of Brown I, we said that the decedent, Roy DeWayne Brown, died from a medical injury and that the three-year statute of limitations contained in the wrongful death statute applied, but we expressly stated that our holding was based only on the law of the case from Brown I, and, as previously set out, we had already overruled the part of Brown I that held the injury was a medical injury. Unfortunately, one sentence of dictum says that the Medical Malpractice Act, including the notice provision, is irrelevant to wrongful death actions. That is the sentence on which appellant bases her argument. The sentence is dictum, not the holding of the case, and must be read in context of the whole paragraph which states that the holding is based on the law of the case. The concurring opinion of Justice Glaze issued a clear warning to attorneys who might later file medical malpractice actions that it would be prudent to assume that the notice provisions of the Medical Malpractice Act still apply. See Brown, 308 Ark. at 364, 823 S.W.2d at 910 (Glaze, J., concurring). Brown III is the latest holding on the statute of limitations issue. It contained no holding on the notice issue.
In sum, we have expressly reserved ruling on whether wrongful death resulting from medical malpractice is governed by the Medical Malpractice Act, and this is the first time we are squarely faced with the issue. The Medical Malpractice Act provides that it applies to “all causes of action for medical injury.” (Emphasis added.) The language is clear, and we are constrained to follow it. Accordingly, we hold that, under the then existing law, notice had to be given in compliance with the Medical Malpractice Act.
Affirmed.
Glaze, Corbin, and Brown, JJ., dissent.