# Aka v. Jefferson Hospital Association, Inc.

Supreme Court of Arkansas
344 Ark. 627
STATE of Arkansas ex rel. Winston Bryant, Attorney General v. R&A INVESTMENT CO., Inc., d/b/a Mid South Title Loans et al.
Appeal from Pulaski Chancery Court
No. 98-198 --- Opinion delivered: February 4, 1999. [Petition for rehearing (separate appellees Herbert Fendley, M.D., et al.) denied; petition for rehearing (separate appellees Kimberly Garner, M.D., et al.) denied; petition for rehearing (appellee St.Paul Fire & Marine Insurance Company) denied.]
* Court Documents
* Opinion of the Court
* Concurring Opinion Imber
* Concurrence/Dissent Brown

## Syllabus

* APPEAL & ERROR – MOTION TO SUPPLEMENT ADDENDUM – GRANTED. – Where the supreme court recognized that appellant was not seeking to amend the addendum but to ensure that the court had complete copies of all indexed items, the supreme court granted appellant's motion to supplement the addendum.
* APPEAL & ERROR – NOTICE OF APPEAL – ADEQUATE TO PRESERVE APPELLATE REVIEW OF INTERMEDIATE ORDER. – The supreme court found that appellant's notice of appeal was adequate to preserve appellate review of the trial court's intermediate order dismissing the claims regarding the Estate of Baby Boy Aka.
* CRIMINAL LAW – AMENDED DEFINITION OF "PERSON" IN ACT 1273 OF 1999 – SUPREME COURT NO LONGER CONSTRAINED BY COMMON-LAW DEFINITION OF "PERSON". – Given the amended definition of "person" in Act 1273 of 1999, codified at Ark. Code Ann. § 5-1-102(13)(B)(i)(a) (Supp. 1999), the legislature plainly afforded protection to unborn viable fetuses, assuming that injury or death occurred without the mother's consent to a lawful abortion or outside the "usual and customary standards of medical practice" or beyond "acts deemed necessary to save" the mother's life; Act 1273 ​of 1999 was consistent with Amendment 68 to the Arkansas Constitution, and the supreme court was no longer constrained by the common-law definition of person.
* CONSTITUTIONAL LAW – ARK. CONST. AMEND. 68 – STATE'S INTEREST IN PROTECTING LIFE OF FETUS BEGINS AT VIABILITY. – The import of Ark. Const. amend. 68 remains a compelling expression of Arkansas's public policy to the extent that it does not violate federal law; by federal constitutional interpretation, the state's interest in protecting the life of a fetus begins at viability.
* COURTS – RULES OF DECISION – CHATELAIN V. KELLY OVERRULED WHERE EXPRESSED PUBLIC POLICY OF LEGISLATURE JUSTIFIED BREAK WITH PRECEDENT. – Where the supreme court's decision in Chatelain v. Kelly, 322 Ark. 517, 910 S.W.2d 215 (1995), was premised upon avoiding inconsistency, the court, to be consistent with the current expression of legislative intent, was obliged to depart from Chatelain; as a general rule, the supreme court is bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law; precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable; the test is whether adherence to the rule would result in great injury or injustice; here, the supreme court concluded that the expressed public policy of the General Assembly justified a break from precedent and, accordingly, overruled Chatelain v. Kelley.
* STATUTES – RETROACTIVE APPLICATION – STRICT RULE DOES NOT APPLY TO PROCEDURAL OR REMEDIAL LEGISLATION. – Retroactivity is a matter of legislative intent; generally, the supreme court observes a strict rule of statutory construction against retroactive operation and presumes that the legislature intends for statutes and amendments to be applied prospectively; this rule, however, does not ordinarily apply to procedural or remedial legislation.
* STATUTES – REMEDIAL LEGISLATION – CARDINAL PRINCIPLE OF CONSTRUCTION. – The cardinal principle for construing remedial legislation is to give appropriate regard to the spirit that promoted a statute's enactment, the mischief sought to be abolished, and the remedy proposed.
* STATUTES – REMEDIAL LEGISLATION – RETROACTIVE APPLICATION. – Retroactive application is appropriate for remedial statutes that do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation.
* COURTS – RULES OF DECISION – BENEFIT OF NEW DECISION DENIED TO SOME INJURED PERSONS. – When the supreme court overrules a prior decision and states the rule to be followed in the future, it also acknowledges the need to rely upon the validity of ​actions taken in faith upon the old decision; given, however, that the overruling of a decision relates back to the date of the overruled decision, no matter how a new rule of law is applied, the benefit of the new decision is denied to some injured persons.
* COURTS – RULES OF DECISION – COURT'S OPINION EFFECTIVELY PROSPECTIVE EXCEPT AS TO INSTANT CASE. – The supreme court adheres to the doctrine that makes a new rule applicable only to the case at bar and to causes of action arising after the decision becomes final; in other words, the court's opinion is effectively prospective except as to the instant case.
* COURTS – RULES OF DECISION – OVERRULING OF CHATELAIN V. KELLY APPLIED RETROACTIVELY TO APPELLANT & PARTIAL SUMMARY JUDGMENT REVERSED. – The supreme court concluded that appellant's efforts to bring about a needed change in the law should not go unrewarded, because without such inducement change might not occur; in light of the foregoing and to further the remedial intent of the wrongful-death statute, the supreme court applied its decision to overrule Chatelain v. Kelley retroactively as to appellant and prospectively as to causes of action arising after this opinion becomes final; therefore, the supreme court reversed the trial court's grant of partial summary judgment against the Estate of Baby Boy Aka.
* JUDGMENT – SUMMARY JUDGMENT – APPELLATE REVIEW. – In reviewing a summary-judgment case, the appellate court need only decide if the trial court's grant of summary judgment was appropriate based on whether the evidence presented by the moving parties left a material question of fact unanswered.
* JUDGMENT – SUMMARY JUDGMENT – MOVING PARTY'S BURDEN. – The moving party always bears the burden of sustaining a motion for summary judgment; all proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party.
* JUDGMENT – SUMMARY JUDGMENT – WHEN APPROPRIATE. – The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
* JUDGMENT – SUMMARY JUDGMENT – PRIMA FACIE CASE. – Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact.
* JUDGMENT – SUMMARY JUDGMENT – WHEN NOT APPROPRIATE. – If a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the ​nonmoving party presents the court with any countervailing evidence.
* CONSTITUTIONAL LAW – SOVEREIGN IMMUNITY – DOCTRINE DISCUSSED. – Article 5, section 20, of the Arkansas Constitution provides that "[t]he State of Arkansas shall never be made defendant in any of her courts"; Ark. Const. art. 5, § 20, grants sovereign immunity and a general prohibition against awards of money damages in lawsuits against the State of Arkansas and its institutions; the doctrine of sovereign immunity is rigid and, as such, the immunity may be waived only in limited circumstances; where the suit is one against the State and there has been no waiver of immunity, the trial court acquires no jurisdiction.
* JUDGMENT – SUMMARY JUDGMENT – STANDARD OF REVIEW. – In considering the trial court's decision on a motion for summary judgment, the standard is not whether the evidence was sufficient to compel a conclusion on the part of the fact-finder but whether there was evidence sufficient to raise a fact issue.
* JUDGMENT – SUMMARY JUDGMENT – ORDER GRANTING REVERSED WHERE EVIDENCE SUFFICIENT TO RAISE FACTUAL ISSUE REGARDING PHYSICIAN'S DUAL STATUS. – Where appellant presented evidence sufficient to raise a factual issue regarding a physician's role as a state employee or private practitioner, the supreme court, viewing the evidence in the light most favorable to appellant and resolving any doubts against the physician and her professional association, could not say that summary judgment was warranted and, accordingly, reversed the trial court's order granting summary judgment.
* EVIDENCE – ADMISSION – ABUSE OF DISCRETION & SHOWING OF PREJUDICE REQUIRED FOR REVERSAL OF RULING. – On appeal, the supreme court will not reverse a trial court's ruling on the admission of evidence absent an abuse of that discretion and a showing of prejudice.
* EVIDENCE – EXCLUSION OF RELEVANT EVIDENCE – REQUIREMENTS. – Arkansas Rule of Evidence 403 provides for the exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time; although evidence is relevant, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
* EVIDENCE – PHOTOGRAPHS – TRIAL COURT'S DISCRETION. – Absent an abuse of discretion, the supreme court will not reverse a trial court for admitting photographs; although the relevancy and admission of photographs is a matter within the sound discretion of the trial court, and while the supreme court is highly deferential to ​that discretion, the court has rejected a carte blanche approach to the admission of photographs.
* EVIDENCE – PHOTOGRAPHS – FACTORS TO BE CONSIDERED IN MAKING ADMISSION DETERMINATION. – With respect to photographic evidence, the supreme court requires the trial court, in making the admission determination, to consider, first, whether the relevant evidence creates a danger of unfair prejudice, and, second, whether the danger of unfair prejudice substantially outweighs its probative value.
* EVIDENCE – PHOTOGRAPHS – WHEN EVEN GRUESOME PHOTOGRAPHS MAY BE ADMISSIBLE. – Even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand the testimony; other acceptable purposes are to show the condition of the victim's bodies, the probable type or location of the injuries, and the position in which the bodies were discovered; if a photograph serves no valid purpose and could only be used to inflame the jury's passions, it should be excluded.
* EVIDENCE – PHOTOGRAPHS – TRIAL COURT ABUSED DISCRETION BY EXCLUDING AUTOPSY PHOTOGRAPH. – Where an autopsy photograph was capable of authentication and previously supplied to all the parties, the supreme court concluded that the trial court abused its discretion by excluding it; the supreme court could not say that the danger of unfair prejudice outweighed the photograph's probative value; however, the supreme court determined that the trial court properly struck, on the basis of surprise, a physician's testimony concerning a laceration evident in the autopsy photograph.
* EVIDENCE – EXCLUSION OF TESTIMONY – TRIAL COURT'S DECISION AFFIRMED WHERE APPELLANT OFFERED NO EVIDENCE OF PREJUDICE. – Where there was no evidence that appellant suffered prejudice as a result of the trial court's exclusion of testimony from a physician concerning appellee medical center's resident-training program, the supreme court affirmed the trial court on this point.
* EVIDENCE – REFERENCE TO UNLICENSED DOCTOR AS "DOCTOR" – TRIAL COURT'S DECISION AFFIRMED WHERE THERE WAS NO EVIDENCE OF PREJUDICE. – The supreme court found no evidence of prejudice resulting from the trial court's decision to permit reference to an unlicensed doctor as "Doctor" and affirmed the trial court on the issue.
* EVIDENCE – ADMISSION OF NURSE'S TESTIMONY – APPELLEES COULD NOT DEMONSTRATE PREJUDICE IN VIEW OF JURY'S VERDICT. – Where, on cross-appeal, appellees claimed that the trial court erred by admitting a nurse's testimony concerning prior ​complaints about the lack of faculty supervision over the family-practice residency-training program, the supreme court, noting that appellees could not demonstrate that any prejudice occurred in view of the jury's verdict, affirmed the trial court's decision to admit the nurse's testimony.
Appellant's Motion to Supplement Addendum; granted.
Appeal from Jefferson Circuit Court; Phillip H. Shirron, Judge; reversed and remanded.
Cross-Appeal; affirmed.
Eubanks, Welch, Baker & Schulze, by: Morgan E. Welch; and Cross, Kearney & McKissic, by: Gene McKissic, for appellant/cross-appellee.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: R.T. Beard, III, and Tim E. Howell, for appellees Kimberley Garner, M.D.; Shane Higginbotham, M.D.; and Randy Hill, M.D.
Womack, Landis, Phelps, McNeill & McDaniel, by: Paul McNeill and Mark Mayfield, for appellees/cross-appellants Herbert Findley, M.D.; William Freeman, M.D.; and Harve M. Attwood, M.D.
Anderson, Murphy & Hopkins, L.L.P., by: Overton S. Anderson, for appellee Erma Washington, M.D.
Friday, Eldredge & Clark, LLP, by: Phil Malcom and John C. Fendley, Jr., for appellees Betty Orange, M.D., and Erma Washington, M.D., & Associates.
Bridges, Young, Matthews & Drake PLC, by: Stephen A. Matthews, for appellee/cross-appellant St Paul Fire & Marine Insurance Company.
Charles M. Kester and Christopher R. Heil, for amicus curiae Arkansas Trial Lawyers Association.
Williams & Anderson LLP, by: Leon Holmes, for amicus curiae Arkansas Right to Life, Inc.
[Opinion of the court by Chief Justice W.H. "DUB" ARNOLD. Concurring opinion by Justice ANNABELLE CLINTON IMBER. Opening dissenting in part and concurring in part by Justice ROBERT L. BROWN, joined by Justice RAY THORNTON.]
* ↑ BROWN and THORNTON, JJ., would grant as to estate of Baby Boy Aka.
* ↑ BROWN and THORNTON, JJ., would grant as to estate of Baby Boy Aka.
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