Arkansas malpractice law illegal, Griffen rules before trial

This story is from NWA Arkansas Democrat Gazette. Please click here for the original article.

January 9, 2018

By John Lynch

A Pulaski County circuit judge has declared as unconstitutional a law that shields Arkansas doctors accused of malpractice from being questioned at trial about whether their performance was adequate.

In a lawsuit against a Little Rock plastic surgeon scheduled for to begin January 9, 2018, Pulaski County Circuit Judge Wendell Griffen ruled that the law, a provision of the Arkansas Medical Malpractice Act, illegally bars patients who have sued their doctors from being able to ask the physicians about the “core” issue of their litigation.

“This statute prevents a plaintiff from inquiring, cross-examining or introducing probative evidence at trial that go to the core of a medical malpractice claim,” Griffen stated in his three-page order on Friday. “This preclusion infringes on an absolute fundamental right to cross examine witnesses and as a result, strips the plaintiff of his right to a fair trial. The right to cross examine witnesses is fundamental … absolute.”

The law prevents medical professionals accused of malpractice from being questioned about whether they know what standard of care they are expected to provide for their patients and whether they lived up to those standards when providing the treatment or service in question.

Doctors are not the only medical professionals shielded by the law. It also includes nurses, pharmacists, physician’s assistants and veterinarians, among others, stating that “no medical care provider shall be required to give expert opinion testimony against himself or herself.”

The Arkansas Supreme Court has ruled the law also bars those professionals from testifying about professional standards against the clinics, hospitals or nursing homes that employ them.

Searcy attorney Jimmy Simpson, whose arguments persuaded the judge to strike down the provision, said he can’t find any other type of professionals who receive this kind of protection from the Arkansas Legislature.

“Simply put, [the] subsection … prevents the jury from hearing what the person who is charged with breaching the standard of care thinks the standard of care is in a trial that is all about breaching the standard of care,” Simpson stated in his motion.

He called the prohibition “contrary to all sense of reason and justice.”

“It is tantamount to preventing questioning a car designer about how to design a car, a bridge-builder about how to build a bridge or an architect about how to design a building,” Simpson wrote.

The part of the statute in question — Arkansas Code 16-114-207 — has never been challenged before on these grounds, according to Simpson.

Griffen’s ruling comes just as Dr. Jim English goes on trial today.

The surgeon, who owns English Plastic and Cosmetic Surgery Center in Little Rock, is accused of mishandling skin removal surgery in 2012 on Simpson’s client, Tommy Hale of Judsonia. Hale sued English in 2014, alleging he developed a pustule-like fluid buildup on the surgical incision site from the abdominoplasty procedure performed in July 2012. Hale saw English almost daily over the following month for follow-up treatment.

The lawsuit alleges that the the surgical procedure English performed to alleviate the condition — known as a seroma — was not properly performed, causing Hale intense pain and tissue damage while forcing him to endure open wounds for almost a year.