Another Challenge to the Civil Justice Reform Act

posted Jan 13, 2012, 11:30 AM by Gerry Schulze
The Arkansas News covered my oral argument before the Arkansas Supreme Court yesterday (Thursday, January 11, 2012).  I had the privilege of representing Teresa Broussard in a challenge to a section of the Civil Justice Reform Act of 2003.  The oral argument can be seen on the Arkansas Supreme Court's webpage.

Ms. Broussard was under the care of a nephrologist and a general surgeon. She entered the hospital for purposes of surgery. The surgery went on as planned, however Ms. Broussard was severely burned during surgery. We do not know how the burn occurred. Ms. Broussard originally hired another lawyer who investigated the case on the theory -- not unreasonable -- that something must have gone wrong in the operating room for a woman to come out of surgery with a severe burn on her chest. At some point after taking on the case, that lawyer retired and Ms. Broussard had to find another lawyer. By the time she came to us the case had already been filed and was pending before the court.

Ms. Broussard had found an expert witness, Dr. Terence Baker, Dr. Baker is board certified in many areas, including family medicine and forensics.  Dr. Baker was not a specialist in the fields of nephrology or general surgery. After much investigation, we were unable to determine the cause of the fire. The best explanation, which isn't a very good one, is that she suffered an allergic reaction to betadine.   The reason that explanation was not terribly satisfactory is that she had been exposed to betadine on numerous occasions without any reactions in the past. 

Dr. Baker was more concerned with the care and treatment Ms. Broussard got after the surgery. Both the nephrologist and the surgeon saw her several times after the surgery. They recognized that they did not know what to do about burns.  That is not terribly surprising. Burn care is not in the expected area of practice for a nephrologist, and even a general surgeon has only limited exposure to patients with burns. Dr. Baker's problem with the care Ms. Broussard received was that regardless of his specialty, if a doctor recognizes that something is outside of his field of expertise, he should immediately find someone with the proper expertise. This was particularly true given the severity of the burns reported by Ms. Broussard.

Ms. Broussard was released from the hospital but re-hospitalized a few days later. After being released from the hospital the second time Ms. Broussard called her nephrologist and basically told him that she was going to the burn center in Tulsa, Oklahoma. With that, the nephrologist reluctantly granted her a referral.

At the burn center, it was determined that Ms. Broussard's burns were serious. She ultimately required extensive treatment. Dr. Baker testified that had Ms. Broussard been sent to the burn center when she should have been, the amount of treatment necessary and the amount of scarring that resulted would have been significantly reduced.

The nephrologist and the surgeon asked the trial judge to dismiss the case on summary judgment. Their argument was that Dr. Baker was not qualified under the Civil Justice Reform Act because he was not of the "same specialty" that they were.

Our response to that argument was that insofar as the tort reform act required a doctor to have the status of practicing in the same specialty as the defendant, it violated Amendment 80 to the Arkansas Constitution.  Rules regarding pleading, practice, and procedure in court are delegated exclusively to the Arkansas Supreme Court under that amendment. The Arkansas Supreme Court had promulgated a rule for determining whether an expert witness should be allowed to testify in a civil case. The legislature's insertion of a requirement that that expert witness also show that he practices in the same field as the defendant was an unconstitutional infringement on the authority of the Supreme Court.

The trial judge rejected that argument and held that Dr. Baker would not be allowed to testify against the defendants. He granted summary judgment for the doctors. We appealed.

All branches of government in Arkansas -- judicial, legislative, and executive -- have a duty to follow the Arkansas Constitution. At the time the Civil Justice Reform Act was passed, many commentators told their representatives that some of the provisions of violated the Arkansas Constitution. The legislature felt otherwise, and passed the act.  

Up to now several provisions of the act have been struck down as unconstitutional. See also Summerville v. Thrower.  We feel that the Arkansas Supreme Court's decisions in those cases strongly supported our position.

The matter is now before the Arkansas Supreme Court. I had the privilege of arguing the case before the court, and now I've also had the privilege of getting my name in the paper once again.  Whatever the result, I will post an update when the Supreme Court rules.
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Gerry Schulze,
Jan 13, 2012, 11:30 AM
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Gerry Schulze,
Jan 13, 2012, 11:30 AM
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