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Whorton v. Dixon9/29/2005
In this appeal, Appellant Karen Mauldin Whorton ("Whorton") challenges the constitutionality of Ark. Code Ann. § 16-114- 207(3) (1987), which precludes a medical care provider from having to give expert testimony against himself or herself as to any matters set forth in Ark. Code Ann. § 16-114-206 (1987) regarding the plaintiff's burden of proof in an action for medical injury . The circuit court rejected Whorton's constitutional challenge below. In her sole point on appeal, Whorton argues that section 16-114-207(3) violates the equal protection clauses of the Arkansas and United States Constitutions. She further suggests that section 16-114-207(3) is "special legislation," which is prohibited under Amendment 14 to the Arkansas Constitution, and that the legislature's enactment of the challenged statutory provision violates the separation-of-powers doctrine. For the reasons stated below, we affirm.
The facts giving rise to this constitutional challenge are as follows. Whorton filed a medical malpractice lawsuit against Appellee Jerry W. Dixon, M.D., Saline Memorial Hospital, and St. Paul Fire and Marine Insurance Company as the liability carrier for Saline Memorial Hospital. In her complaint, Whorton alleged that Dr. Dixon was negligent in the "removal of lymph node masses by virtue of his severing the nerve which enervates the trapezius muscle and left paraspinal musculature, and in failing to properly evaluate, diagnose and treat her symptoms as set forth hereinabove." Moreover, she asserted that Saline Memorial Hospital was vicariously liable for negligent conduct which proximately caused her damages. In discovery, counsel for Dr. Dixon instructed him not to answer certain questions posed during his deposition, citing Ark. Code Ann. § 16-114-207(3) as his authority. Similarly, Dr. Dixon relied on the same statute when he moved in limine to prevent any questioning of him at trial regarding the standard of care. Meanwhile, Whorton filed a motion requesting a declaration that section 16-114-207(3) is unconstitutional. The circuit court denied the motion on the ground that Whorton failed to meet her burden of proving the statute unconstitutional.
At trial, Whorton called Dr. Andy Heiskell, a general surgeon, as an expert witness to testify that Dr. Dixon's conduct breached the applicable standard of care in that he failed to adequately warn Whorton about the risk that the nerve could be severed in the surgery, as well as the consequences of such damage, and he failed to see several signs post-surgery that clearly indicated the nerve had been severed. Dr. Heiskell opined that if the nerve severance had been caught earlier, the nerve could have been reconnected.
Dr. Dixon testified on his own behalf and called his own expert witness, Dr. Charles Mabry, also a general surgeon. Dr. Mabry refuted the testimony offered by Dr. Heiskell, opining that Dr. Dixon could not have diagnosed an injury to the spinal accessory nerve during the time he continued to treat Whorton post-surgery. It was Dr. Mabry's opinion that scar tissue caused by the surgery eventually severed the spinal accessory nerve. Ultimately, the jury found in favor of Dr. Dixon. Whorton now brings a timely appeal. We have jurisdiction of this appeal as it involves a question of law concerning the validity, construction, or interpretation of an act of the General Assembly. Ark. Sup. Ct. R. 1-2(b)(6) (2005).
Whorton's overarching point on appeal is that the circuit court erred in upholding the constitutionality of Ark. Code Ann. § 16-114- 207(3). Before we review the circuit court's decision, we must first determine what standard of review is appropriate. Whorton argues on appeal that strict-scrutiny review
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