Haase v. Starnes

Robert H. Dudley, Justice,

dissenting. Roger Haase filed a medical malpractice action, which sounds in both tort and contract, against Dr. C. Wayne Starnes. Starnes holds himself out to be a specialist in hair transplant and scalp reduction surgery. In his complaint, Haase alleged that Starnes advertised, “We guarantee you a full, growing head of hair for the rest of your life” and “Transplants guaranteed to grow for the rest of your life.” Haase alleged that, as a result of his reliance on the advertisements, he contracted with Starnes to perform a series of hair transplants, grafts, and scalp reductions, and that during the course of the treatments, his scalp became infected, which caused a “permanent scar on his head which is incapable of sustaining hair transplants.” He concluded by alleging that Starnes breached the “representations and warranties” contained in his advertisements.

The complaint sounds in both tort and contract. Both the tort and the contract allegations are for a “medical injury.” “Action for medical injury” means 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). “Medical injury” means any adverse consequence sustained in the course of professional services being rendered by a medical doctor, “whether resulting from negligence, error, or omission in the performance of such services; ... or in breach of warranty or in violation of contract.” Id. § 16-114-201(3).

The Medical Malpractice Act provides that it “applies to all causes of action for medical injury accruing after April 2, 1979, and as to such causes of action, it shall supersede any inconsistent provision of law.” Id. § 16-114-202. Section 16-114-206(a) of the Arkansas Code Annotated provides the party having the burden of proof in “any” action for medical injury “shall” prove that the doctor failed to act in accordance with the degree of skill and learning used by other doctors in the same type of practice in the same or similar locality. Id. § 16-114-206(a)(1).

The trial court ruled that this was a suit for a medical injury and that it would be necessary for Haase to comply with the Medical Malpractice Act. Ark. Code Ann. §§ 16-114-201 to -209. Haase stipulated that at trial he would not offer expert testimony to prove that Starnes failed to maintain the proper standard of care of a doctor in the same or similar community. The trial court dismissed Haase’s complaint without prejudice. The majority opinion then holds that the trial court erred in dismissing the contract claim. I dissent from that part of the holding.

1.

We have often said that when the language of an act is clear and contains no ambiguity, we will interpret it to mean only what it provides. E.g., Arkansas Bank & Trust Co. v. Douglas, 318 Ark. 457, 885 S.W.2d 863 (1994). We have often written that the cardinal rule of statutory construction to which all other interpretive guides must yield is to give effect to the legislative intent. Graham v. Forrest City Hous. Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). In determining legislative intent, we have said that we look to the language of the act, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate matters. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The language contained in the act at issue is clear and certain. It provides that the Medical Malpractice Act “shall” apply to “any” and “all” actions for medical injury “whether based in tort, contract, or otherwise” and it shall apply to actions for “breach of warranty or .. . violation of contract.” The majority opinion construes the act to mean that a contract action is not subject to the burden-of-proof provision.

The purpose of the act and the object to be accomplished by the Medical Malpractice Act and the legislative history are set out in the act’s emergency clause, as follows:

It is hereby found, determined and declared by the General Assembly that the threats of legal actions for medical injury have resulted in increased rates for 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 actions 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.

Act 709 of 1979, § 11 (emergency clause). We have said the statute serves a valid purpose because it was enacted to prevent doctors from practicing “defensive medicine” and to help control the spiraling cost of medical care. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).

Statutes treating medical malpractice actions in both tort and contract together are not new. Earlier medical malpractice limitations acts discussed contract actions and tort actions in the same statute. Section 37-205 of the Arkansas Statutes Annotated provided that “all actions of contract or tort for malpractice . . . against physicians [and] surgeons . . . shall be commenced within two years.”

We have often written that, in enacting statutes, the General Assembly is presumed to have known of court decisions on the same subject and is presumed to have acted with reference to those decisions.J. L. McEntire & Sons, Inc. v. Hart Cotton Co., Inc., 256 Ark. 937, 511 S.W.2d 179 (1974). In enacting the Medical Malpractice Act and making it applicable to actions in both tort and contract, the General Assembly and the drafters of the act are presumed to have acted in reliance on our case of Helton v. Sisters of Mercy of St. Joseph’s Hospital, 234 Ark. 76, 351 S.W.2d 129 (1961). There, the plaintiff filed a tort malpractice action against a hospital and then separately filed a breach of contract malpractice action against the same hospital. The tort and contract actions were consolidated. In the tort action, we held that the hospital was a public charity and therefore not liable. In the contract action, we wrote:

We next come to the proposition of whether the hospital can be liable for the injuries sustained by the little girl on the theory that there was a breach of contract. There was no express contract setting out the duties and the obligations of the parties. Mr. Helton delivered his little girl to the hospital for the examination. At that time he signed an authorization for an examination to be made. In this written document neither party agrees to do anything, and it cannot be called a contract in any sense of the word. In order to invoke the doctrine that it was the duty of the hospital to use due care, and liability on its part for the failure to use such care, resort must be had to operation of law. In ordinary circumstances, no charitable institution being involved, the law would imply that it was the duty of the hospital to use due care, and there could be liability for the failure to use such care. But the law does not imply something that is against public policy. How can it be said that the law implies an obligation to use due care, and liability for the failure to use such care, where the public policy of the state imposes no duty and liability in that respect? The Cabbiness case clearly points out that immunity of a charitable corporation for liability for negligence is so thoroughly established in this State that the doctrine has become a rule of property. In these circumstances we cannot say that the law implies that it is the duty of the hospital to use due care, and liability for not doing so. It would appear that if there is any implication supplied by law it would be that there is no liability for the failure to use due care. “The law never implies an agreement against its own restrictions and prohibitions.” Los Angeles Warehouse Co. v. Los Angeles County, 139 Cal. App. 368, 33 P.2d 1058.

Helton v. Sisters of Mercy of St. Joseph’s Hosp., 234 Ark. at 81-82, 351 S.W.2d at 131-32 (emphasis added).

The General Assembly presumably read the foregoing to mean that a malpractice action is subject to the public policy of this state regardless of whether it is labeled an action in tort or a contract. The members of the General Assembly likely understood that a Medical Malpractice Act that was designed to limit the increase in medical care costs could, as a matter of public policy, be applied to both tort and contract causes of action. The General Assembly has the authority to limit malpractice actions for a legitimate state purpose. Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984). As an additional factor, the General Assembly presumably considered all of the issues involved, and in addition to limiting costs of medical care, sought to avert personal financial disaster for physicians since a suit for breach of contract is usually not covered by malpractice insurance. Jack W. Shaw, Jr., Annotation, Recovery Against Physician On Basis of Breach of Contract To Achieve Particular Result or Cure, 43 A.L.R.3d 1221, 1227 (1972 & Supp. 1994).

In summary, the words “any action against a medical care provider, whether based in tort, contract or otherwise,” have a clear meaning. The legislative intent was for compliance with the act whether the malpractice action was filed in contract or tort. It should be presumed that in drafting the act, the General Assembly was aware that our prior case law treats medical malpractice actions with a single public policy, regardless of whether the action is labeled tort or contract. Our case law provides that, while contract warranties may be implied by law, they should never be implied when it is against public policy to do so.

2.

From the foregoing, it seems undisputed that the burden-of-proof section of the Medical Malpractice Act, section 16-114-206, must be complied with in malpractice actions sounding in tort. In addition, when a person goes to a physician for medical services and the physician accepts that person as a patient, a contract is implied in law. This implied contract is governed by the Medical Malpractice Act. It would seem to be beyond any real dispute that, to apply the public policy and standard of care expressed in the Medical Malpractice Act, the same burden-of-proof section, 16-114-206, must be complied with in a malpractice action grounded on an a breach of a warranty implied by law. This is because the law should never imply a warranty that is contrary to public policy. The issue in this case, however, is whether the burden-of-proof section must be complied with in malpractice actions based on an express contact.

The majority opinion holds that a physician may bind himself to a specific result by express contract and when the physician breaches that contract, it is not necessary for the injured party to comply with the burden-of-proof section of the Medical Malpractice Act. There is no real dispute that ordinarily a physician may by express contract bind himself to perform a specific result with an operation. See Annotation, Physician’s or Surgeon’s Warranty of Success of Treatment or Operation, 27 A.L.R. 1250, 1255 (1923).

The first question is whether such a contract is contrary to the public policy expressed in the Medical Malpractice Act. Without discussing the matter in any of the myriad of possible details, it seems that the better policy is to hold that a physician should be able to enter into an express contract for specified results. It appears that all jurisdictions hold that, without an express contract, a physician does not contract to achieve a particular result. See Annotation, 43 A.L.R.3d at 1230. In addition, a number of jurisdictions have held that such an express contract will not be supported by the consideration paid for the physidan’s normal undertaking to use ordinary skill, but must be supported by a separate consideration. 43 A.L.R.3d at 1233. Haase did not plead any special consideration in this case, and the majority opinion tacitly rejects special consideration as an element of a contract for specified results.

The majority opinion holds, without meaningful discussion, that Haase’s reliance on an advertisement constitutes an express contract for a particular result. As authority, it cites a warranty-of-goods case that involved the Uniform Commercial Code, Little Rock School District v. Celotex Corp., 264 Ark. 757, 574 S.W.2d 669 (1978). However, other jurisdictions treat contracts for personal services of a physician as being different from ordinary goods. In light of the Medical Malpractice Act, it would seem reasonable to hold, as many other jurisdictions have done, that in order for there to be a valid express contract it must be supported by a separate consideration. See, e.g., Sard v. Hardy, 367 A.2d 525 (Md. App. 1976). Some jurisdictions require such a contract to be in writing. See, e.g., Zapata v. Rosenfeld, 811 S.W.2d 182 (Tex. App. 1991). The underlying reason for a written contract is obvious. A physician should, as a part of the treatment, reassure the patient that he or she will be all right and will get well, and because such statements are therapeutic they should not be discouraged by law. If such statements might form the basis of an express contract, they will not be made and their value will be lost.

Even when one accepts the majority opinion’s holding that the reliance on an advertisement, without more, can constitute an express contract, the trial court was correct in dismissing this case. The express contract, as upheld in the majority opinion, was for a “full, growing head of hair for the rest of your life” and for transplants “to grow for the rest of your life.” Starnes did not advertise, and therefore did not expressly contract, that the patient would not become infected. The alleged warranty did not mention infection. The allegation sounds in tort and comes within the purview of the Medical Malpractice Act. Haase next alleged that, as a result of the infection, he had a scar and that the scar is incapable of sustaining hair transplants. The advertisement assured that transplants would grow a full and growing head of hair for the rest of the patient’s life. Haase does not allege that the transplants have not grown, nor does he allege that he does not have a full head of hair. He alleges that he has a scar and that the scar will not sustain transplants. Thus, the trial court correctly dismissed the cause of action without prejudice, and left Haase free to plead further if, in fact, he has a valid cause of action based upon an express contract.

As an alternate ground for reversal, the majority opinion holds that, even if the burden-of-proof section of the Medical Malpractice Act should be applicable to this case, the trial court erred in ruling that expert testimony is necessary to prove Haase’s case. The holding is simply incorrect. Surgical scalp reduction, hair transplantation, and infections as a result of such procedures, are not matters that lie within the common knowledge of jurors. Thus, expert testimony is necessary. Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995).