November 7, 2020

The Supreme Court of Arkansas (“Arkansas Supreme Court”), in its opinion dated October 15, 2020, overturned a trial judge’s verdict in the amount of $821,635 in an Arkansas medical malpractice case because the trial court improperly deprived the defendants of their demand for a jury trial.

The Underlying Facts

Plaintiff Mildred Vick filed her Arkansas medical malpractice complaint on April 16, 2018, alleging medical negligence by defendant Dr. Bandy related to the surgery he performed on her on June 21, 2013. Vick’s complaint included a demand for a trial by jury. The defendants answer and amended answer also contained a demand for a jury trial.

The circuit court’s scheduling order required that mediation be completed thirty days prior to the pretrial hearing date. The order stated, “Failure to comply with the pre-trial requirements may result in removal from the jury trial docket, dismissal of claims, striking of affirmative defenses, or the prohibition of the introduction of certain testimony and/or exhibits.”

At the pretrial hearing on August 13, 2019, the circuit court addressed the defendants’ motion to dispense with mediation or, in the alternative, for enlargement of time, which had been filed on August 8, 2019. The motion stated that Dr. Bandy refused to give his consent to settlement and that a mediation would therefore “be unproductive and a waste of time and resources.” Defense counsel admitted to an error in failing to timely file the motion, but objected to the court striking the defendants’ request for a jury trial.

Arkansas Supreme Court Opinion

Article 2, § 7 of the Arkansas Constitution provides in pertinent part: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law[.]”

Arkansas Rule of Civil Procedure 38(a) sets out the manner of demanding a trial by jury, while Rule 38(c) states that a demand for trial by jury may not be withdrawn without the consent of the parties. Rule 39(a) sets out the ways a proper demand for a trial by jury may not result in a jury trial:

(a) By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court, upon motion or of its own initiative, finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of this State.

The Arkansas Supreme Court held: “Of course, neither circumstance set out in Rule 39(a) applies here—the defense did not consent to a bench trial, and the medical malpractice claim is a legal claim to which the right of a jury trial attaches. Nor is there statutory authority for the striking of a jury-trial demand for failure to comply with a court order for mediation … We [ ] reject Vick’s argument that appellants’ actions in refusing to mediate and delay in seeking relief from compliance with the scheduling order constituted “consent” to the withdrawal of the jury trial demand … Based on our analysis above, there is no law prescribing a waiver of the right to a jury trial as a sanction for failing to comply with a court’s order to mediate. Accordingly, on this record, we hold that the circuit court lacked the authority to divest appellants of their fundamental constitutional right to a jury trial … Here, the circuit court erred in striking the defendants’ jury-trial demand as a sanction for failing to mediate as required by the scheduling order; we are persuaded that the sanction imposed here—deprivation of the fundamental constitutional right to a trial by jury—was beyond the circuit court’s authority.”

Source Bandy v. Vick, 2020 Ark. 334.

If you or a loved one may have been injured as a result of medical negligence in Arkansas or in another U.S. state, you should promptly consult with an Arkansas medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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