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SMITH v. WASHINGTON2/24/2000
Appellant Brenda Lee Robinson Smith brings this appeal of the Jefferson County Circuit Court's dismissal of her medical malpractice claim against appellee Dr. Erma S. Washington, for alleged medical negligence arising out of surgery performed on appellant while she was an inmate at the Arkansas Department of Correction. Because we have determined that the trial court erred in dismissing appellant's complaint pursuant to the two-dismissal rule of Ark.R.Civ.P. 41(a), we reverse the grant of appellee's Motion to Dismiss and return the action to the trial court for further proceedings consistent with this opinion.
Appellant filed a pro se complaint in federal court against appellee and the prison healthcare provider on March 12, 1993, alleging violations of the federal Civil Rights Act, 42 U.S.C. § 1983, arising from the total abdominal hysterectomy that appellee performed on appellant on June 10, 1992. Appellant alleged that her attempts to discuss her concerns with appellee had been fruitless and that she was given the "runaround" by prison officials when she complained about the uneven stitches and loss of feeling in her sagging abdomen following the surgery. Appellant sought damages for her physical and mental injuries as well as reconstructive surgery to be performed by an outside physician.
Counsel was appointed by the federal district court to represent appellant in this action, but the merits were not reached because appellant and appellee filed a joint stipulation of dismissal of the action on January 3, 1995. The document was executed by both parties pursuant to Fed.R.Civ.P. 41(a)(1) and stipulated to a dismissal without prejudice. The federal court order dismissing appellant's federal civil rights action was entered the same day.
Prior to the dismissal of her federal civil rights action, appellant had filed suit against appellee in Jefferson County Circuit Court, asserting a cause of action against the doctor for medical malpractice and failure to obtain informed consent to undergo the hysterectomy under state tort law. Specifically, appellant alleged that appellee negligently advised her that her pap smear indicated that she suffered from severe epithelial dysplasia which would develop into cancer unless she submitted to a total abdominal hysterectomy, a recommendation made notwithstanding appellant's stated desire to have more children. A second allegation charged that appellee negligently performed the hysterectomy, producing unnecessary and unsightly permanent scarring on appellant's abdomen. This complaint was filed on June 8, 1994. Although the parties conducted some discovery, this action was never set for trial. Instead, appellant filed a motion for voluntary nonsuit and an order of dismissal without prejudice was entered on June 21, 1996, dismissing appellant's complaint.
Appellant timely filed a second cause of action mirroring the allegations of medical malpractice and failure to obtain informed consent contained in her first state court action. On August 13, 1997, appellee filed a motion to dismiss on the basis of the two-dismissal
rule of Rule 41(a)(2) of the Arkansas Rules of Civil Procedure, contending that appellant's federal civil rights action under § 1983 and her first state court action against appellee for medical negligence were actions based on the same claim for purposes of the two-dismissal rule, and that, as a result, appellee's voluntary dismissal of her first state court action constituted an adjudication on the merits of her claim against appellee.
The trial court accepted appellee's contention that appellant's dismissal by stipulation of her federal court action coupled with her voluntary nonsuit of her first
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