If you think that you might have a medical malpractice case in Arkansas, you are probably wondering what your state's laws have to say on these types of cases. In this article, we'll explore some key Arkansas laws on medical malpractice.
All states have very specific deadlines for filing medical malpractice lawsuits. These deadlines are called statutes of limitations, and they can be fairly complex because they may contain as many as three or four separate deadlines.
The first part of the statute of limitations is the standard deadline, which gives victims of medical malpractice a certain number of years after the malpractice occurred within which to file a lawsuit. The standard deadline in Arkansas is two years. That means, if you do not file a medical malpractice lawsuit within two years after the malpractice occurred, you lose your right to sue -- unless you fall within one of the exceptions we'll discuss next.
The second part of the statute of limitations is called the discovery rule. The discovery rule is an exception to the standard deadline in situations where the victim could not reasonably have learned that he/she even had a medical malpractice case.
In Arkansas, the discovery rule only applies in malpractice cases that are based on a foreign object that was left in the patient's body.
If a malpractice lawsuit is based upon the discovery of a foreign object in the body of the malpractice victim which is not discovered and could not reasonably have been discovered within the standard two year period, the action may be commenced within one year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.
The third part of the statute of limitations is the deadline for minors (children under age eighteen) or their parents or legal guardians to file a medical malpractice lawsuit. In Arkansas, the minor child statute of limitations only applies to children under age nine.
For children who were under age nine at the time of the alleged malpractice, the child or the child's parent or guardian shall have until the later of the child's eleventh birthday or two years from the date of the malpractice to file a lawsuit.
However, there is a special discovery rule that only applies to children under the age of nine at the time of the alleged malpractice.
In cases where no medical injury is known and could not reasonably have been discovered prior to the child's eleventh birthday, then the child or the child's parent or guardian shall have until two years after the medical injury is known or reasonably could have been discovered, or until the child's nineteenth birthday, whichever is earlier, in which to file a lawsuit.
Arkansas has other exceptions to the statute of limitations that may apply in a medical malpractice case, depending on the circumstances. For example, the statute of limitations may be extended if the defendant left the state after committing the malpractice, or if the victim of malpractice was mentally ill or mentally disabled. Arkansas also has a special exception to the statute of limitations that allows the statute of limitations to be tolled (i.e., extended) for ninety days under certain, very specific circumstances if the plaintiff serves written notice of intention to file an action for medical injury within thirty days of the expiration of the regular statute of limitations.
The Arkansas statute of limitations for medical malpractice cases can be found at Arkansas Code Annotated sections 16-114-203 and 16-114-212.
Some states have caps or limits on the amount of the damages that can be awarded to a victim of medical malpractice. In Arkansas, there is no cap on damages.
In some medical malpractice cases, the defendant may argue that you are at least in part liable for causing your own injuries by, for example, failing to follow the doctor's instructions. If you go to trial and are found to be partially liable, that finding will reduce or even eliminate your damage award, depending on state law.
Arkansas follows a "modified comparative negligence" rule. This means that, if you are found to be in part negligent with respect to your injury, illness, or medical condition, your award of damages is diminished in proportion to your fault. If, for example, you were awarded $100,000 in damages, but were found 20% at fault, your damages would be reduced to $80,000. However, if the jury finds that your fault is equal to or greater than the defendant's fault, then you are not entitled to recover any damages, and your case is dismissed.
Many states have passed laws requiring plaintiffs' lawyers in medical malpractice cases to submit some proof of the defendant's negligence at the beginning of the case before they will be allowed to proceed with the lawsuit. This proof is usually in the form of a report containing the opinion of a physician that the defendant was negligent. In Arkansas, there is no such requirement.
Arkansas does have a law that applies to awards for future damages that exceed $100,000. If the plaintiff receives an award of future damages greater than $100,000, either party may request the court to order that the future damages in excess of $100,000 be paid, in whole or in part, by periodic payments instead of by a lump sum payment.
This law can be found at Arkansas Code Annotated section 16-114-208.