{
  "id": 4016223,
  "name": "James Philip McKINNEY, Special Administrator of the Estate of Elijah James McKinney, Deceased v. Dr. Robert G. BISHOP; Dr. David A. Dias; and Van Buren H.M.A., Inc., D/B/A Crawford Memorial Hospital",
  "name_abbreviation": "McKinney v. Bishop",
  "decision_date": "2007-03-08",
  "docket_number": "06-1033",
  "first_page": "191",
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      "reporter": "Ark. Code Ann.",
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    {
      "cite": "Ark. Code Ann. \u00a7 16-114-209",
      "category": "laws:leg_statute",
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      "year": 2006,
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    {
      "cite": "Ark. Code Ann. \u00a7\u00a7 16-55-201",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
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    {
      "cite": "Ark. Code Ann. \u00a7 12-12-507",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 2005,
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  "last_updated": "2023-07-14T18:01:48.941240+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "James Philip McKINNEY, Special Administrator of the Estate of Elijah James McKinney, Deceased v. Dr. Robert G. BISHOP; Dr. David A. Dias; and Van Buren H.M.A., Inc., D/B/A Crawford Memorial Hospital"
    ],
    "opinions": [
      {
        "text": "Annabelle Clinton Imber, Justice.\nThis is an appeal from the circuit court\u2019s order of dismissal in favor of Appellees Dr. Robert G. Bishop (\u201cDr. Bishop\u201d), Dr. David A. Dias (\u201cDr. Dias\u201d), and Van Bur\u00e9n H.M.A., Inc., d/b/a Crawford Memorial Hospital (\u201cCrawford Memorial Hospital\u201d). Because the circuit court\u2019s order is not a final, appealable order as required by Arkansas Rule of Appellate Procedure \u2014 Civil 2 and Arkansas Rule of Civil Procedure 54(b), we dismiss the appeal without prejudice.\nAppellantjames Phillip McKinney (\u201cMcKinney\u201d), as special administrator of the estate of Elijah James McKinney, deceased, filed a complaint against Appellees and John Does 1-10, alleging survival and wrongful-death claims based on ordinary negligence, medical malpractice, and the violation of Ark. Code Ann. \u00a7 12-12-507 (Supp. 2005), which governs reports of suspected abuse or neglect. McKinney also sought a declaratory judgment declaring certain sections of Act 649 of 2003, codified at Ark. Code Ann. \u00a7\u00a7 16-55-201 through 16-55-220 (Repl. 2005), \u201cunconstitutional or otherwise invalid.\u201d\nPursuant to Rule 12(b) of the Arkansas Rules of Civil Procedure, Dr. Bishop and Crawford Memorial Hospital each filed a separate motion to dismiss McKinney\u2019s complaint, alleging that he failed to meet the requirements of Ark. Code Ann. \u00a7 16-114-209 (Repl. 2006). According to that statutory provision, an affidavit containing a medical expert\u2019s opinion as to the standard of care in the particular specialty, the breach of that standard, and the resulting injury, must be filed by the plaintiff within thirty days of filing a medical-malpractice action; otherwise, the action shall be dismissed by the circuit court. Ark. Code Ann. \u00a7 16-114-209. Pursuant to Rule 56 of the Arkansas Rules of Civil Procedure, Dr. Dias filed a motion for summary judgment, also alleging that McKinney failed to satisfy the requirements of section 16 \u2014 114\u2014 209.\nFollowing the filing of an amended complaint and a hearing on the motions, the circuit court entered an order of dismissal on May 24, 2006. The order states in relevant part:\nIT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the Motions to Dismiss filed on behalf of each of the respective Defendants in this case, Dr. Robert G. Bishop, Dr. David A. Dias, and Van Bur\u00e9n, H.M.A., Inc. d/b/a Crawford Memorial Hospital, should be and hereby are granted and the Plaintiffs Complaint and cause of action is DISMISSED in its entirety with prejudice.\nMcKinney subsequently filed a motion for clarification and reconsideration, requesting that the circuit court clarify whether the dismissal was with or without prejudice. In the event the dismissal order was intended to be with prejudice, McKinney requested a ruling on each issue raised and argued so the issues would be preserved for appeal. On June 26,2006, the circuit court entered an order denying McKinney\u2019s motion for clarification and reconsideration. More specifically, the circuit court found that the required affidavit was not timely filed and that the amended complaint did not relate back to the filing of the original complaint. With regard to McKinney\u2019s constitutional challenge, the circuit court made the following rulings: Act 649 of2003 is not special legislation in violation of Amendment 14 of the Arkansas Constitution; the Act does not deny McKinney due process of law and equal protection of the laws as guaranteed by the Arkansas and United States Constitutions; the Act does not violate the \u201copen courts\u201d provision of the Arkansas Constitution; the Act does not violate the separation-of-powers doctrine of the Arkansas and United States Constitutions; the Act is not in violation of the supersession rule adopted by the Arkansas Supreme Court; and the Act is not in violation of Act 38 of 1973, codified at Ark. Code Ann. \u00a7 16-11-302 (repealed 2003). Furthermore, the circuit court upheld the constitutionality of the provisions of Act 649 of 2003 fixing venue in Crawford County and requiring McKinney to file an affidavit signed by an expert in a similar area of medical care as each defendant medical care provider. From that order, McKinney now appeals.\nArkansas Rule of Civil Procedure 54(b) provides in relevant part that\nany judgment, order, or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.\nArk. R. Civ. P. 54(b)(2) (2006) (emphasis added). While none of the parties raise this issue, the question of whether an order is final and subject to appeal is a jurisdictional question that this court will raise sua sponte. See Jones v. Huckabee, 363 Ark. 239, 213 S.W.3d 11 (2005).\nIn the instant case, there is neither a final order as to John Does 1-10, nor is there a 54(b) certification. Accordingly, we conclude that McKinney\u2019s claims against John Does 1-10 are still pending. Because there is not a final order as to these defendants nor a Rule 54(b) certification, we do not have jurisdiction to hear this case and we dismiss this appeal without prejudice so that the circuit court may enter an order as to the remaining defendants, John Does 1-10. See Jones v. Huckabee, supra; Moses v. Hanna\u2019s Candle Co., 353 Ark. 101, 110 S.W.3d 725 (2003); Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998).\nAppeal dismissed without prejudice.",
        "type": "majority",
        "author": "Annabelle Clinton Imber, Justice."
      }
    ],
    "attorneys": [
      "Law Offices of Charles Karr, P.A., by: Charles Karr; and James R. Filyaw, for appellant.",
      "Ledbetter, Cogbill, Arnold & Harrison, LLP, by: J. Michael Cogbill and Rebecca D. Hattabaugh, for appellee Van Bur\u00e9n H.M.A. d/b/a Crawford Memorial Hospital.",
      "Warner, Smith Harris, PLC, by: Wayne Harris and Stephanie Harper Easterling, for appellee Dr. David A. Dias."
    ],
    "corrections": "",
    "head_matter": "James Philip McKINNEY, Special Administrator of the Estate of Elijah James McKinney, Deceased v. Dr. Robert G. BISHOP; Dr. David A. Dias; and Van Buren H.M.A., Inc., D/B/A Crawford Memorial Hospital\n06-1033\n252 S.W.3d 123\nSupreme Court of Arkansas\nOpinion delivered March 8, 2007\nLaw Offices of Charles Karr, P.A., by: Charles Karr; and James R. Filyaw, for appellant.\nLedbetter, Cogbill, Arnold & Harrison, LLP, by: J. Michael Cogbill and Rebecca D. Hattabaugh, for appellee Van Bur\u00e9n H.M.A. d/b/a Crawford Memorial Hospital.\nWarner, Smith Harris, PLC, by: Wayne Harris and Stephanie Harper Easterling, for appellee Dr. David A. Dias."
  },
  "file_name": "0191-01",
  "first_page_order": 215,
  "last_page_order": 218
}