{ "id": 1443786, "name": "Nora PARMLEY v. J.I. MOOSE, M.D", "name_abbreviation": "Parmley v. Moose", "decision_date": "1994-05-16", "docket_number": "93-1400", "first_page": "52", "last_page": "57", "citations": [ { "type": "official", "cite": "317 Ark. 52" }, { "type": "parallel", "cite": "876 S.W.2d 243" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "306 Ark. 4", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900926 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0004-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-111", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "313 Ark. 698", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914592 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0698-01" ] }, { "cite": "251 Ark. 680", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633229 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/251/0680-01" ] }, { "cite": "216 Ark. 77", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1614168 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/ark/216/0077-01" ] }, { "cite": "316 Ark. 366", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907742 ], "weight": 8, "year": 1994, "pin_cites": [ { "page": "371" }, { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/ark/316/0366-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-114-203", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1993, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-114-204", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 12, "year": 1993, "pin_cites": [ { "parenthetical": "\"Notice of intent to sue\"" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "310 Ark. 138", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898913 ], "weight": 9, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0138-01" ] } ], "analysis": { "cardinality": 546, "char_count": 9440, "ocr_confidence": 0.89, "pagerank": { "raw": 3.67043658446133e-07, "percentile": 0.8909239496202288 }, "sha256": "e0215256f010abd503438f2e509f99d36188850a6886e51a576b18398cee9c2b", "simhash": "1:a74e5f47c7eed135", "word_count": 1565 }, "last_updated": "2023-07-14T18:37:34.960752+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Nora PARMLEY v. J.I. MOOSE, M.D." ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThis appeal raises issues concerning the scope of our holding in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), a medical malpractice case, in relation to Ark. Code Ann. \u00a7 16-114-204 (Supp. 1993)(\u201cNotice of intent to sue\u201d)- In the present case, the trial court correctly dismissed appellant Nora Parmley\u2019s medical malpractice action with prejudice, ruling that the statute was invalidated in its entirety by Weidrick and that the two-year statute of limitations set forth in Ark. Code Ann. \u00a7 16-114-203(a) (Supp. 1993) is controlling.\nWe addressed this matter dispositively in Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994), a recent opinion handed down after the trial court had entered its findings in this case and counsel had submitted their briefs in this appeal. In the light of our holding in Thomas that the entire statute in question was in conflict with and superseded by Ark. R. Civ. P. 3, we affirm the decision of the trial court.\nOn April 7, 1993, the appellant, Nora Parmley, filed a medical malpractice action against the appellee, J.I. Moose, M.D., alleging that Dr. Moose had been negligent in rendering medical care between April 21, 1988, and February 7, 1991. She stated in her complaint that, during the course of her treatment by Dr. Moose, she experienced progressively worsening pulmonary problems. These, Ms. Parmley averred, eventually deteriorated to the point where she developed cyanosis, a condition defined as a \u201cdark bluish or purplish coloration of the skin and mucous membrane due to deficient oxygenation of the blood. .. .\u201d Steadman\u2019s Medical Dictionary, 383 (25th ed., 1990).\nAccording to the complaint, Ms. Parmley\u2019s condition began gradually to improve only after she discontinued treatment by Dr. Moose in February 1991, when she was admitted first to the intensive care unit at the Siloam Springs Memorial Hospital and then to the St. Francis Hospital in Tulsa, Oklahoma. Ms. Parmley stated that her serious condition resulted directly from the failure of Dr. Moose to provide a correct diagnosis and to employ a regimen of treatment consistent with generally accepted methods in the medical community. She requested compensation for her pain, anguish, mental and physical distress, and permanent heart damage.\nOn January 8, 1993, eighty-eight days before she filed her complaint, Ms. Parmley served a \u201cNotice of Intent to Sue\u201d upon Dr. Moose, pursuant to Ark. Code Ann. \u00a7 16-114-204 (Supp. 1993). That section states:\n(a) No action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed. Provided, service of the written notice of the alleged injuries and damages claimed may also be made by hand delivery.\n(b) If the notice is served within sixty (60) days of the expiration of the period for bringing suit described in \u00a7 16-114-203, the time for commencement of the action shall be extended ninety (90) days from the service of the notice. When service is by certified or registered mail, the date of service of the notice shall be the date of the mailing of the written notice.\nUnder Ark. Code Ann. \u00a7 16-114-203(a), except for cases involving obstetrical care or incompetents, \u201call actions for medical injury shall be commenced within two (2) years after the cause of action accrues.\u201d Subsection (b) provides that \u201cThe date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.\u201d\nThe final date on which Ms. Parmley alleged negligence, February 7, 1991, became, for the purposes of the lawsuit, the \u201cdate of the accrual of the cause of action.\u201d The statute of limitations expired on February 7, 1993, and the January 8, 1993 notice of intent to sue was served within sixty days of the end of the statutory period. A grace period of ninety days was provided under such circumstances by Ark. Code Ann. \u00a7 16-114-204(b), extending the time for commencement of the action, and the filing on April 7, 1993, occurred, as noted above, eighty-eight days after service of the notice of intent to sue.\nDr. Moose filed a motion to dismiss on April 30, 1993, contending that this court\u2019s decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), abolished the sixty-day notice requirement and the ninety-day extension. We held in Weidrick that Ark. R. Civ. P. 3, which states that \u201c[a] civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing,\u201d directly conflicts with and supersedes Ark. Code Ann. \u00a7 16-114-204. Hence, Dr. Moose urged, the two-year limitation of Ark. Code Ann. \u00a7 16-114-203(a) was applicable, and the action, filed on April 7, 1993, two months after the expiration of the relevant period, was barred by the statute of limitations.\nOn September 2, 1993, following a hearing, the circuit court entered an order finding that Weidrick v. Arnold, supra, \u201ceffectively reduced the applicable statute of limitations in medical negligence cases to two (2) years\u201d and invalidated Ark. Code Ann. \u00a7 16-114-204 \u201cin its entirety,\u201d precluding Ms. Parmley from taking advantage of the ninety-day extension under subsection (b). The complaint was \u201cdismissed with prejudice based upon the applicable statute of limitations.\u201d From that decision, this appeal arises.\nI. Validity of Ark. Code Ann. \u00a7 16-114-204(b)\nIn her first point for reversal, Ms. Parmley argues that the trial court erred in dismissing her complaint on the basis that Ark. Code Ann. \u00a7 16-114-204 had been invalidated in its entirety. She contends that subsection (b), containing the authorization for the ninety-day extension for commencement of a malpractice action, was not affected by this court\u2019s holding in Weidrick v. Arnold, supra, and that its provisions may still be given effect.\nAs previously stated, this issue recently was settled conclusively in Thomas v. Cornell, supra, where we explicated our holding in Weidrick v. Arnold, supra, and determined that the two sections of Ark. Code Ann. \u00a7 16-114-204 \u201care dependent upon one another, and, accordingly, to have held in Weidrick that section (a) is superseded in its application is to render the entire statute superseded.\u201d 316 Ark. at 371, 872 S.W.2d at 373. Our rationale was grounded in the well-established principle that when the purpose of a statute is to accomplish a single object, and some of its provisions are invalid, the whole must fail unless sufficient language remains to effect the object without the aid of the invalid portion. Thomas v. Cornell, supra; Allen v. Langston, 216 Ark. 77, 224 S.W.2d 377 (1949).\nIn short, we have already decided this issue.\nII. Applicable statute of limitations\nFor her second point for reversal, Ms. Parmley asserts that, because the trial court below noted that this court had specifically invalidated only Ark. Code Ann. \u00a7 16-114-204(a), there was reasonable doubt regarding whether the ninety-day extension was available to her. Of course, our decisions in Thomas v. Cornell, supra, and Weidrick v. Arnold, supra, render this issue moot.\nIII. Strict construction of Ark. Code Ann. \u00a7 16-114-204\nMs. Parmley urges, in her third point on appeal, that the trial court erred in finding that Ark. Code Ann. \u00a7 16-114-204 is invalid in its entirety because the statute is in derogation of the common law and must be strictly construed in favor of those upon whom the burden sought to be imposed. See Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971). Again, the question is mooted by Thomas v. Cornell, supra, and Weidrick v. Arnold, supra.\nMoreover, the question was not specifically raised below, and no ruling was obtained on the issue. Arguments not raised at trial are not considered on appeal. Gilliam v. Thompson, 313 Ark. 698, 856 S.W.2d 877 (1993).\nIV. Constitutionality of Act 709 of 1979\nIn her fourth and final point for reversal, Ms. Parmley argues that, if Ark. Code Ann. \u00a7 16-114-204 is invalid in its entirety, then Act 709 of 1979, which addresses actions for medical injury, is unconstitutional, and the trial court erred in not declaring it so. She raised the constitutional question in her response to Dr. Moose\u2019s motion to dismiss but neglected, initially, to give notice to the Attorney General as required by Ark. Code Ann. \u00a7 16-111- 106(b) (1987). Subsequently, the trial court ordered her to raise the issue properly within twenty days or waive it.\nMs. Parmley notified the Attorney General of her constitutional challenge within the allotted period. However, she failed to pursue the issue further, neither filing motions with the trial court on the question nor requesting a ruling on her previous challenge. As a result, the trial court never ruled on the constitutional issue. The burden of obtaining a ruling is on the movant; matters left unresolved are waived and may not be raised on appeal. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).\nAffirmed.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Sexton Law Firm, P.A., by: Stephen H. Meeh, for appellant.", "Mitchell, Williams, Selig, Gates & Woodyard, by: Richard L. Angel and Amelia Mosley Russell, for appellee." ], "corrections": "", "head_matter": "Nora PARMLEY v. J.I. MOOSE, M.D.\n93-1400\n876 S.W.2d 243\nSupreme Court of Arkansas\nOpinion delivered May 16, 1994\nSexton Law Firm, P.A., by: Stephen H. Meeh, for appellant.\nMitchell, Williams, Selig, Gates & Woodyard, by: Richard L. Angel and Amelia Mosley Russell, for appellee." }, "file_name": "0052-01", "first_page_order": 78, "last_page_order": 83 }