                                 Cite as 2015 Ark. App. 636


                  ARKANSAS COURT OF APPEALS
                                        DIVISION I
                                       No. CV-15-252

VICTORIA JANE FLEMING,                           Opinion Delivered:   November 4, 2015
INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE                     APPEAL FROM THE GARLAND
OF SCOTT JAMES FLEMING AND ON                    COUNTY CIRCUIT COURT
BEHALF OF THE WRONGFUL                           [NO.26CV-11-164]
DEATH BENEFICIARIES OF THE
ESTATE OF SCOTT JAMES FLEMING                    HONORABLE LYNN WILLIAMS,
                    APPELLANT                    JUDGE

V.                                               REVERSED AND REMANDED

KENNETH VEST, M.D.
                                 APPELLEE

                            WAYMOND M. BROWN, Judge

       Appellant Victoria Jane Fleming, in her capacity as personal representative of the

estate of her deceased husband, Scott James Fleming, appeals the August 15, 2013 order of

the Garland County Circuit Court granting summary judgment in favor of appellee, Dr.

Kenneth Vest, M.D. This case has reached our court twice before, but we were forced to

remand to supplement the record and for lack of a final order. 1 Having found that

appellant has cured the deficiencies that have kept us from considering the case earlier, we

now address the merits of her appeal.

       On April 19, 2010, Sam Lands shot and killed appellant’s husband, Scott Fleming.

Three years earlier Lands had been found not guilty of charges including battery, escape,

resisting arrest, assault, and fleeing, by reason of mental disease or defect. He was treated at

       1
           Fleming v. Vest, 2014 Ark. App. 327; Fleming v. Vest, 2014 Ark. App. 600.
                                Cite as 2015 Ark. App. 636

the state hospital and then granted a five-year conditional release. Soon thereafter, with

the approval of his initial treatment team, he transferred his treatment provider and

residence to Community Counseling Services, Inc. (CCS) in Garland County. There he

was diagnosed with bipolar disorder and began treatment. In 2009, appellee became his

treating psychiatrist and, in order to determine the appropriate medication regimen, began

to withdraw the level of pharmaceuticals administered to Lands. The final time appellee

met with Lands before the death of Scott Fleming was on February 24, 2010.

       On August 16, 2011, appellant filed a wrongful-death action against Lands, his

parents, CCS, and its insurer. On April 19, 2012, exactly two years after the death of her

husband, appellant amended her complaint to include appellee as a defendant. He

answered and moved for summary judgment, arguing that appellant’s claim was barred by

the two-year statute of limitations set forth in the Arkansas Medical Malpractice Act 2 and

that such a period began to run on the date he last met with Lands. Appellee also adopted

a summary-judgment motion filed by CCS alleging that appellant’s claims were barred by

the doctrine of quasi-judicial immunity. Conversely, appellant argued that the two-year

limitations period did not apply because her husband had been a third-party nonpatient, or

alternatively, that she filed within the statutory period because it began to run on the day

she acquired standing, when her husband was killed. She further argued that the statutory

period was tolled because appellee was engaging in a continuous course of treatment with

Lands. Finally, she contended that issues of fact remained which prevented granting the

motion for summary judgment on the grounds of quasi-judicial immunity. Following a


       2
           Ark. Code Ann. Title 16, Chapter 114.
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hearing on the matter, the circuit court granted appellee’s motions for summary judgment

and dismissed all claims against him. This appeal followed.

       Our standard of review for summary judgment cases is well established. Summary
       judgment should only be granted when it is clear that there are no genuine issues of
       material fact to be litigated, and the moving party is entitled to judgment as a
       matter of law. The purpose of summary judgment is not to try the issues, but to
       determine whether there are any issues to be tried. We no longer refer to summary
       judgment as a drastic remedy and now simply regard it as one of the tools in a trial
       court’s efficiency arsenal. Once the moving party has established a prima facie
       entitlement to summary judgment, the opposing party must meet proof with proof
       and demonstrate the existence of a material issue of fact. On appellate review, we
       determine if summary judgment was appropriate based on whether the evidentiary
       items presented by the moving party in support of the motion leave a material fact
       unanswered. We view the evidence in the light most favorable to the party against
       whom the motion was filed, resolving all doubts and inferences against the moving
       party. Our review focuses not only on the pleadings, but also on the affidavits and
       other documents filed by the parties. Moreover, 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. 3

       Appellant first argues that it was error for the circuit court to consider her claim

under medical-malpractice statutes because her husband, the victim, was not appellee’s

patient. Rather, she contends her claim arises from the Restatement (Second) of Torts,

which states as follows:

       One who takes charge of third person whom he knows or should know to be
       likely to cause bodily harm to others if not controlled is under a duty to exercise
       reasonable care to control the third person to prevent him from doing such harm. 4



       3
        Harvest Rice, Inc. v. Fritz and Mertice Lehman Elevator and Dryer, Inc., 365 Ark. 573,
575–76, 231 S.W.3d 720, 723 (2006) (internal citations omitted).
       4
           Restatement (Second) of Torts § 319.
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Her position is that, because her husband was not one of appellee’s patients, she could not

pursue a claim for medical malpractice. She cites Thompson v. Sparks Regional Medical

Center 5 as standing for the proposition that a nonpatient can never pursue a claim for

medical malpractice. This is a misreading. In Thompson, the plaintiff suffered injuries as the

result of a motorcycle accident and immediately sought emergency treatment at St.

Edward hospital. St. Edward was unable to render emergency aid to Ms. Thompson

because no plastic surgeon was at the hospital at the time. She allegedly expressed a

willingness to then transfer to Sparks Regional Medical Center, but never arrived there.

She brought suit against St. Edward, Sparks, and multiple other parties under the

Emergency Medical Treatment and Active Labor Act (EMTALA) and Arkansas’s medical

malpractice laws. The circuit court granted summary judgment in favor of Sparks because

Ms. Thompson never went to the hospital for treatment. In affirming, the court of appeals

reasoned that the definition of “medical injury” within our medical-malpractice law

required that actual professional services be rendered in order for there to be a basis for a

claim of malpractice. 6 Because no professional services were rendered by Sparks and

because Ms. Thompson never went to that hospital for treatment, no professional services

were rendered by which she could sue for malpractice. Thompson does not stand for the

proposition that nonpatients are unable to sue for malpractice.

       On the contrary, this analysis in Thompson actually supports appellee’s contention

that the death of Scott Fleming qualified as a “medical injury” and therefore, fell under the
       5
           2009 Ark. App. 190, 302 S.W.3d 35.
       6
           Id. at 38.


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auspices of medical malpractice. An “action for medical injury” is “any action against a

medical care provider, whether based in tort, contract, or otherwise, to recover damages

on account of medical injury.” 7 The statute defines “medical injury” very broadly:

       (3) “Medical injury” or “injury” means any adverse consequences arising out of or
       sustained in the course of the professional services being rendered by a medical care
       provider to a patient or resident, whether resulting from negligence, error, or
       omission in the performance of such services; or from rendition of such serviced
       without informed consent or in breach of warranty or in violation of contract; or
       from failure to diagnose; or from premature abandonment of a patient or of a
       course of treatment; or from failure to properly maintain equipment or appliances
       necessary to the rendition of such services; or otherwise arising out of or sustained
       in the course of such services. 8

Here, the allegation was that Scott Fleming’s death occurred because of the professional

services (or lack thereof) being provided to Samuel Lands by appellee. In recognizing the

breadth of the definition of “medical injury,” our supreme court has made it clear that a

nonpatient third party may sue a medical care provider for injuries sustained as a result of a

patient’s improper treatment. 9 Accordingly, we find that Scott Fleming’s death was a

“medical injury” and falls under the Arkansas Medical Malpractice Act.

       Because we have discerned the correct nature of the claim, we must now decide

whether such a claim was barred by the medical-malpractice two-year statute of

limitations.
       7
           Ark. Code Ann. § 16-114-201(1) (Supp. 2015).
       8
           Ark. Code Ann. § 16-114-201(3).
       9
          See Dodson v. Charter Behavioral Health Sys. of Nw. Ark., Inc., 335 Ark. 96, 983
S.W.2d 98 (1998) (stating that medical malpractice “lay at the very heart” of the plaintiff’s
claim when decedent was killed by a suicidal driver which went undiagnosed at the
moment because of a breakdown in communication between the defendant hospital and
patient).


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       (a) Except as otherwise provided in this section, all actions for medical injury shall
           be commenced within two (2) years after the cause of action accrues.
       (b) The date of accrual of the cause of action shall be the date of the wrongful act
           complained of and no other time. 10

       This court reviews the circuit court’s statutory interpretation de novo, because it is
       for this court to determine the meaning of a statute. The first rule of statutory
       construction is to construe the statute just as it reads, giving the words their
       ordinary and usually accepted meaning in common language. We construe statute
       so that, if possible, every word is given meaning and effect. If the language of a
       statute is clear and unambiguous and conveys a clear and definite meaning, it is
       unnecessary to resort to the rules of statutory construction. When a statute is clear,
       it is given its plain meaning, and this court will not search for legislative intent;
       rather, that intent must be gathered from the plain meaning of the language used.
       Statutes relating to the same subject should be read in a harmonious manner if
       possible. 11

Here, the circuit court granted summary judgment citing appellee’s argument that the

statute-of-limitations period began the date of his last visit with Lands, February 24, 2010,

rather than the date of Scott Fleming’s death. Had the statutory period begun on April 19,

2010, her claim would be timely and would not be barred by the statute of limitations.

She contends that there is a disconnect in the statutory language as it applies to patients

versus nonpatients like her husband. Under the circuit court’s interpretation, the statute of

limitations began to accrue over one and one-half months before Lands ever shot Scott

Fleming. She correctly points out on appeal that had she filed her claim prior to her

husband’s death, her husband would have had no relationship to appellee, he would not




       10
            Ark. Code Ann. § 16-114-203(a), (b).
       11
         Roberson v. Phillips Cnty. Election Comm’n, 2014 Ark. 480, at 4, 449 S.W.3d 694,
696 (internal citations omitted).


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have been injured due to appellee’s negligence, and the claim would have no possibility of

surviving in court.

       Although appellant’s argument appears to have much merit, our case law tends to

support the position of appellee, that the cause of action began to accrue at the time of his

last visit with Lands. 12 In order to overcome this hurdle, appellant argues that the statute of

limitations was tolled by the continuous-course-of-treatment exception. This exception

tolls the statute of limitations in medical-malpractice cases where there is medical

negligence “followed by a continuing course of treatment for the malady which was the

object of the negligent treatment or act.” 13 Our supreme court has further defined the

exception:

       [I]f the treatment by the doctor is a continuing course and the patient’s illness,
       injury or condition is of such a nature as to impose on the doctor a duty of
       continuing treatment and care, the statute does not commence running until
       treatment by the doctor for the particular disease or condition has terminated –
       unless during treatment the patient learns or should learn of negligence, in which
       case the statute runs from the time of discovery, actual or constructive. 14

The record in the case at bar contains several instances, many included in the appellant’s

brief, where a jury might determine that appellee was engaged in a continuous course of

treatment:



       12
          See Raynor v. Kyser, 338 Ark. 366, 993 S.W.2d 913 (1999) (holding that a
patient’s cause of action against a doctor for medical negligence in failure to properly
diagnose accrued at the time of the patient’s last postoperative follow-up examination, as
opposed to her treatment five months later with the same doctor for complaints for which
she never before had sought treatment).
       13
            Tullock v. Eck, 311 Ark. 564, 571, 845 S.W.2d 517, 521 (1993).
       14
            Pledger v. Carrick, 362 Ark. 182, 188–89, 208 S.W.3d 100, 103 (2005).
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       Appellee became Lands’s actual treating psychiatrist in January 2009, and he
       expected to treat Lands for two years.

       As treating psychiatrist, appellee saw Mr. Lands on February 24, 2010. His progress
       note from that day listed Lands’s diagnosis as Bipolar I Disorder and set future
       treatment goals for the disorder; listed multiple objectives that were to occur within
       ninety (90) days, or by May 24, 2010.

       Appellee testified that he did not intend to abandon Lands after the February 24,
       2010 visit; that he continued to monitor Lands after the visit; and that he had an
       appointment scheduled with Lands sometime after April 19, 2010.

       Courtney Bishop, Lands’s primary therapist at CCS, testified that, at the time of the
       shooting, she and appellee were still in the process of deciding what the medication
       regimen for Lands’s condition should be.

       Appellee executed a Master Treatment Plan/Certification of Serious Mental Illness
       for Lands on April 28, 2010, after Scott Fleming’s death. In it, he stated that
       continuous treatment of the disorder was appropriate and medically necessary.

The circuit court failed to construe the foregoing facts in appellant’s favor, which is

required when determining whether to grant a motion for summary judgment. These facts

concern a material issue in deciding if summary judgement is justified as a matter of law,

and a jury could find that the treatment was continuous, and therefore, appellant filed her

claim within the statutory period. Because material facts are in dispute as to whether

appellee continuously treated Lands, summary judgment based on the statute of limitations

was inappropriate. We reverse the grant of summary judgment based on the two-year

statute of limitations.

       In addition to granting the motion for summary judgment based on the statute of

limitations, the circuit court also granted summary judgment in favor of appellee on a

theory of quasi-judicial immunity by finding that appellee was a quasi-judicial officer.




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Whether immunity from suit exists is a question of law for the courts. 15 We review

questions of law de novo, as the circuit court is in no better position than we are to

answer a question of law. 16

       In Chambers v. Stern, 17 the Arkansas Supreme Court stated that a “court-appointed

physician is entitled to judicial immunity so long as he is serving an integral part of the

judicial process, by carrying out and acting within the scope of the court’s order.” The

physician in Chambers was ordered by the divorce court to meet, evaluate, and counsel the

divorcing parties and their children; to report his findings, observations, and

recommendations to the court; and to direct the divorcing parties’ visitation with their

children pending further order. Appellee’s sole argument to support that he was acting as

an “arm of the court and performing a quasi-judicial function” 18 is that the original court

order became applicable to CCS after Lands transferred. The court orders never identify

appellee, and he confirmed in his deposition that he never communicated with the circuit

court. In light of our de novo review, we do not find that appellee is protected by judicial

immunity as a matter of law.

       Viewing the evidence in the light most favorable to appellant, resolving any doubts

against appellee, we hold that the circuit court erred in finding that appellee was entitled

to judgment as a matter of law.


       15
            Chambers v. Stern, 338 Ark. 332, 338, 994 S.W.2d 463, 466 (1999).
       16
            Curley v. Old Reliable Cas. Co., 85 Ark. App. 395, 155 S.W.3d 711 (2004).
       17
            Chambers, supra.
       18
            Id.
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       Reversed and remanded.

       ABRAMSON, J., agrees.

       HARRISON, J., concurs.

       BRANDON J. HARRISON, Judge, concurring. This appeal asks whether a

treating psychiatrist may be liable to a nonpatient who is intentionally harmed by a

patient. A core issue immediately arises: does the Medical Malpractice Act apply as a

matter of course, as Dr. Vest has argued? Or does some other tort law apply—whether it

be the typical negligence doctrine, or a more particularized version of negligence that

many states have applied when faced with third-party harm cases? There is no clear

answer or approach under Arkansas law, and that is why my colleagues and I diverge on a

key issue in this case.

       The circuit court granted summary judgment to Dr. Vest on two grounds: (1) it

decided that the Act applied to the case and ruled that the Act’s two-year statute of

limitations time-barred Fleming’s complaint against Dr. Vest; and (2) the court separately

ruled that Dr. Vest had quasi-judicial immunity, a decision that, independent of the

limitations issue, ended the case against the doctor.

       We all agree that Dr. Vest has no quasi-judicial immunity and unanimously reverse

the circuit court’s immunity ruling as a matter of law. I differ, however, on the decision

to characterize and analyze Fleming’s case against Dr. Vest as one for alleged medical

malpractice. Whether Arkansas’s Medical Malpractice Act applies affects the limitations

question presented in this case and aspects of this litigation’s future course.




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       This case is not one for medical malpractice because it does not truly probe

whether Dr. Vest properly treated a person with whom he had a doctor-patient

relationship. This case turns, at least in part, on whether Dr. Vest owed a legal duty to

control or confine patient Lands so as to protect Fleming, who was not a patient. That

strikes me as being a fundamentally different question that needs an analytical framework

apart from the Act.

       My colleagues state that Fleming’s complaint alleges medical malpractice. One

supreme court case, Dodson v. Charter Behavioral Health System of Northwest Arkansas, Inc.,

335 Ark. 96, 983 S.W.2d 98 (1998), supports their view in some respect. But Dodson

does not have a clear holding that we can apply to this case—meaning the case does not

expressly address and hold that a claim arising from a doctor-patient relationship that

results in the patient fatally shooting a third party is an “action for medical injury” under

the Act. Dodson is procedurally different than this case, it answered different questions,

and it recites both an ordinary-negligence standard and the duty owed under the Act.

Dodson is not a case that squarely addressed and answered the characterization issue that

this case presents.

       I agree with my colleagues that the definition of “medical injury” is a broad one.

Ark. Code Ann. § 16-114-201(3) (Supp. 2015). But the definition should not include

every conceivable “adverse consequence” that arises once a medical-care provider begins

to treat a patient. Ark. Code Ann. § 16-114-201(3). Every legal concept should have its

practical limit. As one court has put it:




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       While it may seem that there should be a remedy for every wrong, this is an
       ideal limited perforce by the realities of this world. Every injury has
       ramifying consequences, like the rippling of the waters, without end. The
       problem for the law is to limit the legal consequences of wrongs to a
       controllable degree . . . . [Accordingly] [t]he final step in the duty inquiry
       . . . is to make a determination of the fundamental policy of the law, as to
       whether the defendant’s responsibility should extend to such results.
       Jaworski v. Kiernan, 696 A.2d 332, 336 (Conn. 1997).

       A troublesome point with applying the Medical Malpractice Act in this case is that

the shooting itself must arguably be the actionable “adverse consequence.” Because until

Lands shot Fleming, the latter man was not “injured” by Dr. Vest’s treatment of Lands.

Yet how can the violent, intentional act that Lands committed against Fleming equate to a

medical injury? To so conclude injects a legal fiction into an area of the law where one is

not needed to carry out the general assembly’s intent, in real-world affairs.

       The law of unintended consequences may have just been triggered. Applying the

Act in a case like this one arguably undermines the general assembly’s main reason for

promulgating the Act, because it seems to expand the potential tort liability that medical-

care providers could face. See Act of Apr. 2, 1979, No. 709, § 11, 1979 Ark. Acts 709

(Emergency Clause); see also Jarmie v. Troncale, 50 A.3d 802, 808 (Conn. 2012) (expanding

the liability of health care providers [under a medical-malpractice act] would not reduce

the potential for harm because health-care providers would be required to do no more

than they already must do to fulfill their duty to patients).

       Contrary to my colleagues’ decision, the better approach is to tether medical-

malpractice claims to adverse consequences that arise from a medical-care provider/patient

relationship. This is the traditional approach, one this court and our supreme court have

followed before. See Chatman v. Millis, 257 Ark. 451, 453, 517 S.W.2d 504, 505 (1975);
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see also Thompson v. Sparks Reg’l Med. Ctr., 2009 Ark. App. 190, at 5, 302 S.W.3d 35, 38

(“The broad holding of Chatman is that a medical provider owed no duty to a person who

was not its patient.”). The so-called traditional approach does not, of course, necessarily

mean that Dr. Vest would owe a duty to Fleming.

       What duty, if any, did Dr. Vest owe to Fleming under the circumstances? That is

the fighting issue in this case, and courts have split over this question since the seminal

case Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976). Arkansas’s

common law does not generally recognize a duty to control the actions of another person

“even if the former has the practical ability to govern the latter.” Trammell v. Ramey, 231

Ark. 260, 262, 329 S.W.2d 153, 154 (1959). This general rule does not usually apply

when there is a special relationship between the parties. See Keck v. Am. Emp’t Agency,

Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). The Restatement of Torts states, “One who

takes charge of a third person whom he knows or should know to be likely to cause

bodily harm to others if not controlled is under a duty to exercise reasonable care to

control the third person to prevent him from doing such harm.” Restatement (Second) of

Torts § 319. So under the Restatement approach, a psychiatrist may owe a duty to a

person when the risk of harm to the person is foreseeable. State courts vary in how they

approach third-party harm cases; some are quite nuanced and fulsome in their treatment of

the question. See, e.g., Estates of Morgan v. Fairfield Family Counseling Ctr., 673 N.E.2d

1311 (Ohio 1997) (holding that a psychotherapist must protect against or control a

patient’s violent propensities and that a “professional-judgment standard” applied); Jarmie

v. Troncale, 50 A.3d 802, 808 (Conn. 2012) (third-party claim against a doctor for failure


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to warn failed as a medical-malpractice claim because the person harmed and the doctor

did not have a physician-patient relationship); see also Civil Liability of Psychiatrist Arising out

of Patient’s Violent Conduct Resulting in Injury to or Death of Patient or Third Party Allegedly

Caused in Whole or Part by Mental Disorder, 80 A.L.R.6th 469 (2012) (collecting cases).

       This case brings Arkansas to an important judicial crossroads:             will our courts

continue to expand the Act’s definition of what constitutes a “medical injury” and thus

pull more providers into the Act’s orbit? Or will they begin taking a more nuanced

approach, especially in cases where a medical-care provider’s patient commits an

intentional harm upon a third person, and more carefully analyze whether a provider can

be sued in tort at all?

       I express no opinion on the merits of the complaint, nor whether a duty in tort

exists. My point here is solely that the Medical Malpractice Act—and the law that goes

hand-in-glove with it—does not apply.            So I would not apply the Act’s two-year

limitations period or the continuous-treatment doctrine. It also means that the circuit

court should be directed to address, as a matter of law, whether a tort-based duty runs

from Dr. Vest to Fleming apart from the Act. How it would determine whether a duty

exists apart from the Act is for the parties to argue and the circuit court to decide.

Compare Coca-Cola Bottling Co. of Memphis, Tenn. v. Gill, 352 Ark. 240, 257, 100 S.W.3d

715, 725 (2003) (existence of a legal duty is a question of law and requires that the

defendant be able to reasonably foresee an appreciable risk of harm to others), with Estates

of Morgan, supra; Jarmie, supra.




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       The circuit court’s decision to grant quasi-judicial immunity to Dr. Vest should be

reversed. But because this case has the flesh of a medical-malpractice case—but not its

heart and bones—I would also reverse the decision to apply the Act and remand this case

for further proceedings.

       Bridges, Young, Matthews & Drake PLC, by: John P. Talbot, for appellant.

       Friday, Eldredge & Clark, LLP, by: T. Michelle Ator and Edie R. Ervin, for appellee.




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