Davis v. Parham5/12/2005
ts. Because the statute of limitations has been rationally related to a legitimate governmental objective (i.e., addressing the legislature's concern of the rising costs of healthcare and imposing legislation in an effort to curb those costs), we hold that appellant's due-process rights are not violated.
As an alternative argument, appellant contends that the statute of limitations was tolled by fraudulent concealment. Specifically, appellant contends that there is a question of fact on whether the "negligence was perpetrated in such a way that concealed itself."
When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. Adams, 333 Ark. at 63, 969 S.W.2d 598 at 602-603. Once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden then shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id. Fraud suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. Id. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Id.
Following these discussions, we proceeded in Adams to address what constitutes fraudulent concealment. In order to toll the statute of limitations, we said that the plaintiffs were required to show something more than a continuation of a prior nondisclosure. We said that there must be evidence creating a fact question related to "some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed, or perpetrated in a way that it conceals itself." Adams, 333 Ark. at 68, 969 S.W.2d at 605 (citing Norris v. Bakker, 320 Ark. 629, 633, 899 S.W.2d 70, 72 (1995)).
In the present case, appellant did not meet his burden of proving by a preponderance of the evidence that the statute of limitations was tolled. Adams, supra. Here, after examining the assertions appellant makes in his complaint, we conclude that they all related to a failure of the physicians and clinic to inform the decedent of the aortic aneurysm, failure to diagnose, failure to read the x-ray correctly, and failure to provide follow-up care. Thus, none of the points rise to the level of a positive act of fraud. See Martin v. Arthur, 339 Ark. 149, 155, 3 S.W.3d 684, 687 (1999). For these reasons, appellant's alternative argument fails.
Until the General Assembly enacts legislation stating otherwise, we are bound by the holdings in our prior cases, such as Ruffins, Hertlein, and their progeny, that stand for the following proposition: the medical-malpractice statute of limitations governs when the medical injury results in a death. Further, we are bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law. Scamardo v. Jaggers, 356 Ark. 236, 242, 149 S.W.3d 311, 314 (2004). Based upon the foregoing conclusions, as well as the principles of stare decisis, we hold that the trial court was correct in granting summary judgment. Accordingly, we affirm.
Affirmed.
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