On January 19, 2012, the Supreme Court of Arkansas (“Court”) determined that a part of Arkansas’ medical malpractice law is unconstitutional because it violates the separation-of-powers doctrine. Specifically, the Supreme Court of Arkansas found that Arkansas Code Annotated Section 16-114-206, which requires that proof in a medical malpractice case must be made by expert testimony by “medical care providers of the same specialty as the defendant,” violates the separation-of-powers doctrine and “the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants.”
The Court focused on the difference between substantive law (which “creates, defines, and regulates the rights, duties, and powers of parties”) and procedural law (which establishes “the steps for having a right or duty judicially enforced, as opposed to the law that defines specific rights or duties themselves”). Because procedural matters lie solely within the province of the courts, the General Assembly has no authority to create procedural rules.
The Court determined that the Arkansas medical malpractice law was, in general, a substantive law because it sets forth the burden of proof that must be met in medical malpractice cases, and a burden of proof defines and regulates a party’s right to recovery. However, the particular phrase that stated “By means of expert testimony provided only by a medical care provider of the same specialty as the defendant” does not set forth a party’s right or duty but rather establishes the necessary qualifications of a witness before he can testify, which is a matter left to the determination of the trial judge. Hence, by including that phrase in the statute, the legislative branch unconstitutionally infringed on the judicial branch of government and therefore violated the separation-of-powers doctrine.
The Court noted that Arkansas Rule of Evidence 702 (“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise”) applies to all types of expert testimony, including in medical malpractice cases. Since the objectionable phrase adds to the requirements of Rule 702, it dictates procedure and invades the judicial authority to set and control procedure.
Because the offending phrase could be severed from the rest of the medical malpractice law, the remainder of the Arkansas medical malpractice law was unaffected by the Court’s decision.
Source Broussard v. St. Edward Mercy Health System, Inc., et al, 2012 Ark. 14.
In this particular instance, the Supreme Court of Arkansas determined that a particular legislative tort reform effort that attempted to restrict those who could testify as experts in medical malpractice cases crossed the line between constitutional and unconstitutional legislation. This small but significant set-back in medical malpractice tort reform efforts in Arkansas will probably be short-lived — the tort reformers have substantial monetary resources that can result in political support behind their efforts to make it increasingly difficult for innocent victims of medical malpractice to receive full compensation for their devastating injuries and life-long losses.
If you have been injured as a result of medical malpractice in Arkansas or in another state in the U.S., you owe it to yourself and your family to consult with a local medical malpractice attorney regarding your possible medical malpractice claim.
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