If you're thinking about filing a medical malpractice lawsuit in Arkansas, there are a number of state laws that could have an impact on the outcome of your claim. These cases are typically extremely complicated, and you'll almost certainly need the help of an experienced medical malpractice attorney. But it's also useful to understand the basics before you get started. Read on for some highlights of Arkansas's medical malpractice laws, including the amount of time a plaintiff (the person filing the lawsuit) has to file the lawsuit, what you'll need to prove in the case, the state's rules on damages, and what happens if you're found to be partially responsible for your own injuries.
All states have very specific deadlines for filing medical malpractice lawsuits, set by laws called "statutes of limitations." In Arkansas, the basic statute of limitations for medical malpractice cases sets a deadline of two years "after the cause of action accrues." Under this law, the "accrual" date is the date on which the malpractice occurred.
Many states apply what's known as the "discovery rule" to medical malpractice cases. Arkansas' discovery rule is limited only to malpractice cases that are based on a foreign object that was left in a patient's body. In that situation, if the object has not been, and could not reasonably have been, discovered during the two-year period described above, the filing deadline is one year from the date the object was discovered, or the date on which the object should reasonably have been discovered, whichever is earlier.
In addition, Arkansas has a specific limitation period for minors. If the patient is nine years old or younger at the time of the malpractice, the filing deadline is two years from the date of the medical error, or the child's eleventh birthday, whichever is later. But there is also a special discovery rule that applies to children who are nine years of age or younger at the time of the alleged malpractice. In cases where the injury is unknown and could not reasonably have been discovered before the child's eleventh birthday, the lawsuit must be filed within two years after the injury is known or reasonably could have been discovered, or by the child's nineteenth birthday, whichever is earlier.
It's important to know that these time limits are strictly enforced. So if you file your lawsuit after the applicable deadline has passed, the defendant (the health care provider you're suing) will ask the court to throw out your case, and the court will almost certainly do so. At that point, you've lost the right for the court to hear your claim.
(Ark. Code Ann. § 16-114-203 (2022).)
Many states have laws on the books requiring plaintiffs in medical malpractice cases to submit some proof of the defendant's malpractice at the beginning of the case. This proof is usually in the form of a document (sometimes called an "affidavit of merit") from another health care provider saying that the defendant most likely committed medical negligence. Arkansas, though, has no such requirement.
But Arkansas law does require the plaintiff to present testimony from at least one medical expert to prove the case, unless the alleged negligence lies "within the jury's comprehension as a matter of common knowledge." This "common knowledge" exception might apply, for example, to a case in which a surgeon failed to sterilize his surgical instruments or left a sponge in a patient's body during surgery.
Most cases, though, are unlikely to fall within this exception and will require expert testimony to prove the following:
(Ark. Code Ann. § 16-114-206 (2022).)
Some states place limits (called "caps") on the amount of compensation ("damages") a plaintiff in a successful medical malpractice case can receive. Arkansas, though, has no law capping damages. That means a judge or jury is free to award any amount of money to compensate for losses the injured person suffered as a result of the malpractice.
You might be wondering what happens if the judge or jury finds you partially to blame for causing your own injuries. In such cases, Arkansas follows a "modified comparative negligence" rule that allows you to still receive compensation as long as your share of the fault is not equal to or greater than the defendant's share (that is, 50 percent or more).
Let's look at how that works in practice. Say, for example, a jury finds that your doctor's negligence during surgery led to complications. But it also finds that you failed to follow your doctor's post-surgery orders, resulting in more severe injuries. Because of the doctor's medical errors, you were awarded $100,000 in damages, but, because the jury also finds that you were 20 percent responsible for your injuries, your award will be reduced to $80,000. However, if you were found to be 50 percent or more responsible, you wouldn't be able to collect any compensation at all.