Arkansas Medical Malpractice Laws

In 2014, a newborn infant in Camden, Arkansas, exhibited high bilirubin levels, a potential indicator of liver issues. This condition, known as hyperbilirubinemia, can lead to jaundice, characterized by a yellowish tint in the skin, and kernicterus, a preventable form of brain damage if left untreated. The physician in charge failed to provide timely attention to the worsening condition, resulting in the newborn’s severe physical disabilities.

The ensuing medical malpractice lawsuit concluded with a jury decision awarding the baby's parents a staggering $46.5 million in damages, setting a record for the largest medical malpractice payout in Arkansas history. 

While this might suggest that such cases consistently yield substantial compensation, this is not the norm. From 2012 to 2022, Arkansas recorded over $192 million in medical malpractice payouts, which is considerably lower than the figures of states like Tennessee, which reached over $1 billion during the same period.

With that in mind, this article delves into the various forms of medical malpractice, identifying the parties susceptible to lawsuits and the circumstances that must exist to sue those generally shielded from civil action. It also provides resources to guide individuals seeking assistance throughout the claims process.

What Qualifies as Medical Malpractice in Arkansas?

When healthcare providers, such as hospitals and doctors, cause harm to their patients due to carelessness, negligence, or mistakes, it is referred to as medical malpractice or medical injury. Numerous situations are categorized as malpractice, including:

• Failure to make a diagnosis: This occurs when a healthcare provider fails to identify a patient's condition, leading to delayed or incorrect treatment. 

• Premature termination of treatment: Ending a patient's treatment too soon can have negative consequences, especially if the treatment is necessary for their recovery. 

• Lack of medical equipment maintenance: Properly maintained medical equipment is crucial for patient safety and effective treatment. Failure to maintain equipment can lead to malfunctions and potential harm to patients. 

• Treatment without informed consent: Healthcare providers must obtain informed consent from patients before administering any treatment. This involves explaining the proposed treatment's risks, benefits, and alternatives. 

Under Arkansas law, the terms "medical malpractice" and "medical negligence" are synonymous. However, there are subtle distinctions between the two:

• Medical malpractice refers to acts that fall below the expected standard of care for a specific patient. For instance, a doctor operating on the wrong body part would be considered medical malpractice.

• Medical negligence, on the other hand, is a broader concept that encompasses acts where healthcare providers fail to provide the level of care generally expected from similar entities. For example, a physician who misdiagnoses a patient would be considered negligent.

Know that not all instances of medical negligence constitute medical malpractice. In some cases, there may not be a direct link between a healthcare professional and an injured patient.

Who Can You Sue for Medical Malpractice in Arkansas?

In Arkansas, different individuals and organizations fall under the legal definition of medical care providers. These entities, which can be held accountable for medical malpractice claims, include:

• Clinics.

• Nurses. 

• Dentists. 

• Hospitals. 

• Podiatrists. 

• Physicians. 

• Pharmacists. 

• Optometrists. 

• Chiropractors. 

• Psychologists.

• Nursing homes.

• Physical therapists. 

• Community mental health centers.

• Certified registered nurse anesthetists. 

• Licensed not-for-profit home health agencies. 

Moreover, Arkansas law extends the definition of medical care providers to encompass officers, agents, or employees who, by virtue of their employment, contribute to the services rendered by healthcare providers.

Exemptions

Certain organizations, such as charitable healthcare providers, may benefit from exemptions from liability. Arkansas recognizes charitable immunity, which shields charities from tort claims. This concept is particularly relevant in medical malpractice cases, as many of the state's largest hospitals are nonprofit organizations.

To determine whether a healthcare provider qualifies for charitable immunity, Arkansas courts consider eight factors, including:

• Whether the provider relies on donations to operate. 

• Whether the organization's officers and directors receive compensation. 

• Whether the provider makes a profit. 

• Whether the organization's charter includes a "not-for-profit" statement.

In one instance, the Arkansas Court of Appeals remanded a nursing home case to the circuit court due to evidence that the healthcare provider received minimal annual donations, indicating that these contributions did not significantly impact the nursing home's finances.

Sovereign immunity, another legal concept, limits plaintiffs' ability to sue state entities and employees in Arkansas courts. Such claims must be filed with the Arkansas Claims Commission.

The liability of healthcare professionals is also restricted in blood test cases arising from DUI incidents. Law enforcement officers can order blood draws from suspects, but the individuals performing these withdrawals are immune from liability unless they are negligent in their actions.

The "Good Samaritan" law extends protection from civil damages to those who provide emergency medical assistance, regardless of their professional status. However, individuals who render aid in a grossly negligent or willful misconduct manner may face liability.

Medical Malpractice Liability Insurance Requirements

While Arkansas does not mandate liability insurance for healthcare providers, certain circumstances may necessitate its acquisition. For instance, hospitals may demand malpractice coverage as a prerequisite for employment. Additionally, insurance companies often require such policies for participation in their networks.

The significance of malpractice liability insurance cannot be emphasized enough. The American Medical Association estimates that over 30% of physicians have faced lawsuits at some point in their careers. Certain specialists, such as OB-GYNs and general surgeons, are particularly vulnerable to malpractice claims.

Moreover, male physicians face a higher risk of lawsuits than female physicians. This heightened vulnerability translates to a greater likelihood of malpractice claims for male-dominated specializations in Arkansas, including optometry, podiatry, and chiropractic.

What Is the Statute of Limitations in Arkansas for Medical Malpractice Cases?

In Arkansas, plaintiffs have two years from the date of the injury to file a medical malpractice claim. This timeframe also applies to wrongful death cases arising from medical malpractice. However, there are a few exceptions to this two-year deadline:

• Foreign objects left inside the body: If a foreign object, such as a surgical instrument or sponge, is left inside a patient's body, they have one year from the date the object was discovered or should reasonably have been discovered to file a claim.

• Minors under nine years of age: If a patient is nine years old or younger at the time of the alleged medical malpractice, their representative has two years or until the victim reaches 11 years old, whichever comes later, to file a lawsuit.

• Injuries not discovered after age 11: If a patient's injury was not discovered until after their 11th birthday, the deadline for filing a medical malpractice claim is two years from the date the injury was discovered or should have been reasonably discovered or until the patient turns 19, whichever comes earlier.

A significant development in Arkansas law is the passage of Act 274 in March 2023. This allows transgender minors to sue doctors who provide gender-affirming medical treatments. Transgender patients can file medical malpractice lawsuits for a maximum of 15 years from their 18th birthday.

What Do You Need to Prove in an Arkansas Medical Malpractice Case?

To successfully establish liability against a healthcare provider, plaintiffs must prove four essential elements: 

• Duty of care: Plaintiffs must demonstrate that the provider owed them a certain standard of care, which is typically determined by the prevailing professional standards for the provider's specialty. 

• Breach of duty: Plaintiffs must prove that the provider failed to meet the established standard of care. This breach can manifest in various ways, such as misdiagnosis, improper treatment, or negligent failure to diagnose or treat a condition. 

• Causation: Plaintiffs must establish a direct link between the provider's breach of duty and the resulting injuries. This means demonstrating that the provider's negligence caused or worsened the patient's condition. 

• Damages: Plaintiffs must prove that they suffered actual harm due to the provider's negligence. This can include physical injuries, emotional distress, lost wages, and medical expenses. 

Expert witnesses play a crucial role in medical malpractice cases, as their specialized knowledge is often necessary to establish the elements of duty, breach, causation, and damages. Expert testimony can help explain complex medical concepts and provide evidence of the provider's failure to meet the applicable standard of care.

Arkansas law specifically recognizes the importance of expert witnesses in medical malpractice cases. The Arkansas Rules of Evidence allow courts to appoint qualified experts to assist in resolving disputes involving specialized knowledge. However, Arkansas does not require plaintiffs to file an affidavit or certificate of good faith, unlike neighboring states Missouri and Tennessee.

Additionally, Arkansas does not have "I'm Sorry" laws, which protect healthcare providers from having their apologies used as evidence of misconduct. This means that medical professionals in Arkansas must be mindful of their communications, as any expression of remorse could be used against them in a malpractice lawsuit.

How Much Can You Sue for Medical Malpractice in Arkansas?

The damages awarded in a medical malpractice case can be influenced by several factors, including the jury's understanding of the plaintiff's injuries. The plaintiff's personal circumstances, such as their criminal history and employment status, can also affect their compensation. 

As such, consulting a medical malpractice attorney can be beneficial in determining the potential value of damages.

Types of Damages

In medical malpractice lawsuits, plaintiffs can seek two types of damages: compensatory and punitive.

Compensatory damages aim to reimburse plaintiffs for the financial and emotional losses they have suffered due to medical negligence. These damages include medical expenses, lost wages, reduced earning capacity, emotional distress, and pain and suffering.

Punitive damages, on the other hand, are intended to punish the defendant for their wrongdoing and deter similar misconduct in the future. These damages are typically only awarded in cases where the defendant's actions were particularly appalling or intentional.

While there are generally no limits on the compensatory or punitive damages a plaintiff can recover, certain exceptions exist. For instance, when a government entity is involved in a medical malpractice lawsuit, its liability may be capped at the limits of its insurance policy.

Negligence System

Medical malpractice claims require plaintiffs to demonstrate that they are not responsible for the negligence that caused their injuries. However, in some cases, plaintiffs may have contributed to their injuries to some degree. In such instances, they may still be eligible for compensation, but the amount they receive will be reduced according to their share of fault.

Arkansas follows a modified comparative negligence system. This means that plaintiffs whose fault is 49% or less can still recover damages. However, if their fault is 50% or more, they are barred from receiving any compensation.

To illustrate this concept, consider a scenario where a patient is harmed due to a physician's misdiagnosis. The patient establishes that this misdiagnosis caused $10,000 worth of damages. Then, during the legal proceedings, it is revealed that the patient engaged in activities that aggravated their condition. As a result, the court determines that the patient is 40% at fault for the incident.

Based on the 40% fault percentage, the patient's recoverable damages are reduced to $6,000. This is because the $4,000 represents the portion of damages attributed to the patient's own actions.

Methods of Obtaining Compensation

In contrast to Louisiana, Arkansas courts do not mandate a pre-suit review panel for medical malpractice cases. This allows parties involved in such disputes to explore various avenues for resolving their differences.

Apart from litigation, two primary methods exist for settling disagreements outside of the courtroom:

• Mediation: A neutral third-party mediator assists both parties in reaching a mutually agreeable resolution. Although mediators possess expertise in conflict resolution, they lack the authority to impose an outcome.

• Arbitration: Unlike mediation, arbitration involves a neutral third-party arbitrator who can make binding decisions that both parties must adhere to. Arbitration generally follows a more formal process than mediation.

Should mediation or arbitration prove unsuccessful, litigation remains the alternative option. However, trials can be lengthy and resource-intensive.

How Much Does It Cost to Pursue a Medical Malpractice Case in Arkansas?

When pursuing a medical malpractice claim, individuals encounter various costs, including those associated with legal representation. Plaintiffs may choose to engage the services of an attorney, but it is essential to understand the different fee arrangements lawyers employ. These include:

• Contingency fees: Commonly advertised as "no win, no fee," contingency fees involve paying the attorney a percentage of the settlement amount, typically 30% to 40%. This approach can benefit plaintiffs with limited financial resources, but it also means relinquishing a significant portion of any awarded compensation. 

• Retainer fees: These are upfront payments made to secure an attorney's services before any legal work commences. While these fees provide certainty regarding legal expenses, they may only be feasible for some plaintiffs. 

• Flat fees: These involve predetermined amounts agreed upon between the plaintiff and the attorney, covering the anticipated scope of work. This approach offers transparency and predictability, but it may not be suitable for complex cases that require additional legal effort. 

Arkansas law distinguishes itself from neighboring states like Oklahoma and Tennessee by imposing no limitations on attorney's fees in medical malpractice cases. This means plaintiffs should carefully evaluate the fee arrangements proposed by potential attorneys to ensure they align with their financial situation.

In addition to legal fees, plaintiffs must bear filing costs associated with initiating a medical malpractice claim. For instance, filing a civil action in the Eastern District of Arkansas District Court incurs a fee of $402, while filing a case in the Pulaski County Circuit Court costs $165. Similar fees apply for appeals to the Arkansas Court of Appeals and the Arkansas Supreme Court.

Legal Resources for Medical Malpractice Victims in Arkansas

Overall, navigating the complexities of a medical malpractice case can be overwhelming. In this regard, various organizations can help victims understand their rights, pursue compensation, and hold healthcare providers accountable. 

The resources below link to state agencies and nonprofits to provide further guidance on issues related to healthcare, like medical exams. Arkansans can also use these links to find information on financial assistance programs. 

Arkansas Department of Health

Dedicated to enhancing the health and well-being of citizens, the Arkansas Department of Health oversees multiple programs to fulfill its mission. One of these is BreastCare, which offers mammograms, pelvic exams, and other essential services to eligible Arkansas women with limited access to medical information and quality treatment. 

Additionally, the agency provides consultations for individuals concerned about rabies exposure from animals such as dogs, cats, skunks, and bats. Arkansans can call the main line at 501-661-2000 or complete an online form to learn more about the agency's healthcare programs.

Disability Rights Arkansas

Disability Rights Arkansas champions the rights of locals with disabilities through different programs. One such initiative involves conducting webinars on various topics, encompassing early periodic screenings and the legal obligations of guardians. 

Furthermore, the organization investigates grievances related to psychiatric residential treatment facilities across the state. Such complaints can be filed online. For inquiries about other programs, one can call 800-482-1174.

Samaritan Community Center

In Northwest Arkansas, the Samaritan Community Center extends a helping hand to low-income individuals, including those who have been victims of medical malpractice. Samaritan Care, one of the center's programs, offers financial assistance and clothing to those in need. 

The organization also operates the Samaritan Dental Clinic in Rogers, Arkansas, providing dental services, including tooth cleaning and extraction.