May 17, 2022

In its opinion filed on March 9, 2022, the Arkansas Court of Appeals Division I (“Arkansas Appellate Court”) held in an Arkansas medical malpractice wrongful death case involving the stillborn delivery of a baby: “We affirm the dismissal of the amended survival claim because the initial claim, which was not brought in the name of A.B.’s personal representative as required by section 16-62-101(a)(1), was a nullity. We reverse the dismissal of the amended wrongful-death claim, however, because Ms. Branch validly brought the claim in the original complaint as A.B.’s only heir at law under section 16-62-102(b).”

The Underlying Facts

Emery Branch arrived at St. Bernards Medical Center’s emergency room shortly before midnight on December 22, 2016. She had elevated blood pressure, complaints of shortness of breath, and chest pain. The attending physician, defendant Dr. Martin Kosciuk, evaluated Ms. Branch for a pulmonary embolus, and finding none, he discharged her approximately three hours later.

Ms. Branch returned to the emergency room shortly before midnight on December 23, 2016, whereupon she presented with severe back pain and high blood pressure. She was admitted to St. Bernards inpatient labor and delivery department, where fetal monitors were unable to detect a heartbeat in Ms. Branch’s unborn child. Ms. Branch delivered A.B. stillborn later that day.

On December 21, 2018, just days before the expiration of the statute of limitations, Ms. Branch filed a complaint individually and as parent and for her use and benefit and for other statutory beneficiaries of her minor child, A.B. The Arkansas medical malpractice wrongful death and survival claim complaint alleged that the appellees were medically negligent because they failed to timely recognize the signs of severe preeclampsia and provide appropriate treatment, causing injury to Ms. Branch and causing A.B.’s death.

The circuit court ruled that Ms. Branch lacked standing to bring the survival claim because she had not yet been appointed administrator of A.B.’s estate, as required by Ark. Code Ann. § 16-62-101(a)(1) (Repl. 2005). The circuit court further ruled that the wrongful death claim was a nullity because Arkansas’s wrongful-death statute requires all of A.B.’s statutory heirs to bring those claims in the absence of an appointed personal representative, Ark. Code Ann. § 16-62-102(b), and A.B.’s putative father, Allen Buchanan, was not a plaintiff in the case. The circuit court also ruled that an amended survival claim, which Ms. Branch filed as the administrator of A.B.’s estate after the statute of limitations had expired, did not relate back to the timely filed complaint. Ms. Branch appealed.

Arkansas Appellate Court Opinion

The Arkansas Appellate Court stated, “The supreme court’s holding in Rager implies a conclusion that Joshua was required to establish Thomas’s paternity before he can be a wrongful-death beneficiary under section 16-62-102(d), even without an express requirement in the wrongful-death statute that he do so. For that reason, we are more persuaded by Scoggins’s corollary dicta suggesting that putative fathers must establish their paternity to claim wrongful-death benefits for their children … The legal rights of a father, in other words, are more than a matter of biology, and the parties here agree that Mr. Buchanan has not taken any steps to be legally recognized as A.B.’s father. Consequently, he is not a wrongful-death beneficiary under section 16-62-102(d) or, according to Brewer, an “heir at law” under section 16-62-102(b) … The circuit court’s judgment dismissing the wrongful-death claim, therefore, is reversed.”

The Arkansas Appellate Court further stated: “we must conclude that the circuit court did not err by finding that the amended survival claim was barred by the statute of limitations. Arkansas Code Annotated section 16-62-101(a) provides that a survival action may be brought “by the person injured, or after his or her death, by his or her executor or administrator[.]” A survival action, in other words, “is a statutory action, and pursuant to the statute, only the executor or administrator could bring suit” … Ms. Branch brought the initial survival claim in her individual capacity and not as administrator of A.B.’s estate, as she was later appointed. Because she therefore lacked standing under section 16-62-101, the initial survival claim was a nullity, and the amended claim substituting her as the administrator of A.B.’s estate was a new claim that was barred by the statute of limitations.”

The Arkansas Appellate Court continued: “We cannot agree, however, that the amended wrongful-death claim is also time-barred. As we have already concluded, Ms. Branch validly brought the original claim as A.B.’s only statutory heir, and the wrongful-death statute required her to pursue the claim as the personal representative of A.B.’s estate once she was appointed … The substitution of a new plaintiff in the amended wrongful-death claim, therefore, did not create a new cause of action preventing application of Rule 15(c) or Rule 17(a).”

Source Branch v. St. Bernards Healthcare, 2022 Ark. App. 123.

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