# Aka v. Jefferson Hospital Association, Inc./Concurrence-dissent Brown

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Imber
* Concurrence/Dissent Brown
​ ROBERT L. BROWN, Justice, dissenting in part; concurring in part. I agree with the majority that the public policy of this state has changed so that viable fetuses are now considered persons for purposes of the wrongful-death statute. My disagreement with the majority is over when the change in public policy occurred and whether today's decision should be applied retroactively to cover only one case. I believe the public policy shift occurred in 2001 with the passage of Act 1265, which amends the wrongful-death statute so that it now applies to a person "or viable fetus." The majority agrees that today's decision should apply only to future cases, but then it carves out the Aka fetus as a sole exception. I cannot agree with that part of the opinion. I concur, however, in reversing the judgment respecting Mrs. Aka's death and sending that matter back for a new trial.
In 1995, in the case of Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995), this court held that a "person" under the wrongful-death statute only included those who had been born. We specifically said in Chatelain that neither our criminal law nor probate code had included viable fetuses as persons. We further said that Amendment 68, which protects "the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution" did not require us to consider fetuses as persons from the moment of conception for wrongful-death purposes.
Today, the majority overrules Chatelain, which I agree with, but then applies its decision retroactively to one lone case – the Aka case. In all other situations, today's decision will only apply prospectively, that is, to future cases. That aspect of today's decision has far reaching consequences. First, it undermines precedent and the stability of our common law. What the majority has done with ​this decision is to overrule the Chatelain decision after only six days of effectiveness. The Chatelain opinion was handed down on November 20, 1995. With the seventeen-day period for rehearing, that meant Chatelain became final on December 7, 1995, and the mandate issued. The unborn fetus in the Aka case was stillborn on December 13, 1995, which was six days later. The Chatelain case must hold the record in the history of jurisprudence as the case with the shortest life span. Then, there is the inherent unfairness of treating two cases with comparable facts completely differently within a six-day time frame. The result of all this is that legal stability is thrown out the window, and we are relegated to deciding fact situations on a case-by-case basis without any adherence to precedent. That flies in the face of the whole notion of the common law and stare decisis.
The majority's rationale for carving out the Aka case as the one exception is decidedly murky. In one place, the opinion reads: "Now, to be consistent with the current expression of legislative intent, we must depart from Chatelain." The opinion footnotes Act 1265 of 2001 in support of this statement. Another part of the opinion cites Amendment 68 and states: "By federal constitutional interpretation, the state's interest in protecting the life of a fetus begins at viability." The majority cites Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) and Roe v. Wade, 410 U.S. 113 (1973) for this proposition. In still another part of the decision, the majority states that the General Assembly passed Act 1273 of 1999 in response to Chatelain and that Act expands the definition of a "person" for homicide purposes to include "a living fetus of twelve (12) weeks or greater gestation."
Again, the burning question is when did the state's public policy on this issue change? The majority, however, presents us with four different events justifying a change in public policy, with each event occurring in a different year:
* Amendment 68, which was passed in 1988 and protects fetuses from conception.
* Amendment 68, as interpreted by Dalton v. Little Rock Family Planning Sews., 516 U.S. 474 (1996), which held that Amendment 68 is displaced only to the extent it conflicts with federal law.
* Act 1273 of 1999 which included fetuses of twelve weeks or greater gestation as persons for homicide purposes.
* Act 1265 of 2001, which adds viable fetuses as persons for wrongful-death actions.
​The majority's handling of this critically important social, cultural, and moral issue is muddled. For example, according to the majority, Roe v. Wade has effectively limited the application of Amendment 68 to viable fetuses. But then the majority also relies on Act 1273 of 1999 which extends the protection for homicide cases to fetuses of twelve weeks gestation, which is before viability. Also, if the state's public policy on viable fetuses changed as early as 1988 or 1996 or 1999, as the majority apparently believes, why does the majority apply today's decision only to future cases with the sole exception of the Aka case? The majority's reasoning is inconsistent and extremely hard to justify. A decision of this magnitude requires clarity and direction and not a patchwork quilt woven from disparate statutes, constitutional provisions, and Supreme Court decisions.
In sum, while I agree that it is appropriate to overturn Chatelain, I cannot condone applying today's decision retroactively to cover only one fetus case. None of the cases cited by the majority permits the overruling of a case earlier than the date that the legislative act that changed the State's public policy became effective. Here, the wrongful-death statute was not changed until Act 1265 of 2001. The majority points to Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), but that case did not turn on a change in the General Assembly's statement of public policy. Rather, in Parish, we concluded that the previous caselaw where we granted municipalities immunity from tort liability for the negligence of their employees was patently unjust. We overturned our previous caselaw. Moreover, in Parish, the General Assembly had refrained from changing the law, whereas in the case before us, the General Assembly has acted, and that is the public policy shift that the majority opinion relies on.
In the dramshop cases, this court overturned prior caselaw based on the fact that the General Assembly had altered the public policy of this state. See Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999) (General Assembly has established high duty of care for holders of alcohol licenses not to sell to intoxicated persons); Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997) (General Assembly has determined it is the public policy of the state to protect minors from adverse consequences of alcohol consumption by making it a felony to sell alcohol to minors for monetary gain). But we did not overturn our caselaw for any case that occurred before the General Assembly altered the public policy of the state.
​Nevertheless, the majority seeks to "reward" the plaintiff for causing Chatelain to be overruled. Again, this makes no sense when it is the General Assembly that changed the public policy of this state in response to Chatelain beginning with Act 1273 of 1999 and concluding with Act 1265 of 2001. The Aka lawsuit did not do so.
I would apply today's decision only from the date the General Assembly amended the wrongful death statute to include viable fetuses. That legislation (Act 1265) was approved on April 4, 2001, without an Emergency Clause and becomes effective ninety days after the General Assembly adjourned. To overturn Chatelain for one case for a period before the public policy of this state changed is a unique decision. There is no case where this court has previously done so. Certainly, the majority opinion cites us to none.
On a separate point, I disagree with the majority's rationale for affirming the trial court on the appellees' cross-appeal regarding the lack of faculty supervision for the residency program. The appellees' cross-appeal is conditional upon this court's reversing and remanding for a new trial. The fact that the appellees prevailed in the first trial and, thus, suffered no prejudice is not a sufficient reason to affirm. I would affirm the trial court on this point because the trial court gave a sufficient limiting instruction to the jury concerning Nurse Parker's testimony. For that reason, I conclude that the trial court did not abuse its discretion with respect to the cross-appeal.
Dissenting in part. Concurring in part.
THORNTON, J., joins.