LITTLE ROCK — An attorney for a Waldron woman who was injured during a procedure at a Fort Smith hospital asked the state Supreme Court on Thursday to strike down part of the Arkansas tort reform law.
The court heard oral arguments but did not immediately issue a ruling in a lawsuit filed by Teresa Broussard against St. Edward Mercy Medical Center and Drs. Stephen Seffense and Michael Coleman. The dismissal of other defendants originally named in the suit has not been appealed.
Broussard developed severe burns to her neck and upper chest after undergoing a procedure at the hospital in 2006. The cause of the burns is unknown, but Broussard alleges that after the burns appeared, Seffense and Coleman were negligent in failing to secure proper treatment for her. She was not treated at a burn center until about three weeks after the burns appeared.
Broussard, 45, who attended Thursday’s oral arguments, has undergone multiple skin grafts and bears disfiguring scars on her neck and upper chest.
The defendants argued that Broussard’s expert witness, Dr. Terrence Baker of Baltimore, could not testify as to whether Seffense and Coleman met the standard of care because he was not of the same specialty as the defendants. Seffense is a surgeon, Coleman is a nephrologist or kidney specialist, and Baker is certified in family practice, geriatrics, emergency medicine and forensics.
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The Civil Justice Reform Act of 2003, a tort reform measure passed by the Arkansas Legislature, requires that an expert witness practice in the same specialty as the defendant in a medical malpractice case. Sebastian County Circuit Judge Stephen Tabor ruled that the requirement had not been met and dismissed the suit.
Broussard’s attorney, Jerry Schulze of Little Rock, told the justices Thursday that several portions of the 2003 law have been ruled unconstitutional and argued that the specialty requirement for expert witnesses should be struck down as well.
Schulze acknowledged that the Legislature has the authority to establish what the burden of proof is in a civil case, but he argued that the Legislature exceeded its authority in dictating procedural rules, which he said are for the Supreme Court to decide.
“It is the duty of this court, not the Legislature, to decide how we prove a case,” Schulze said.
He also argued that the question of the witness’ specialty was irrelevant because “anybody in a hospital with ‘M.D.’ after his name … ought to know that if he sees a patient with a burn like this, his obligation is to find a burn specialist.”
Alan Wooten of Fayetteville, attorney for Seffense and Coleman, argued that the Legislature did not exceed its authority in establishing the specialty requirement because the issue is not a procedural matter.
“Why isn’t that procedural?” asked Chief Justice Jim Hannah.
“It’s substantive because it merely clarifies the burden of proof requirement,” Wooten said.
Wooten also disputed Schulze’s claim that any doctor who saw Broussard’s injuries should have known that she needed to see a burn specialist.
“I think that’s probably beyond the province of most juries to figure out without having some medical testimony to help them out,” he said.
In 2009 the state Supreme Court ruled that provisions of the Civil Justice Reform Act limiting evidence of medical costs and allowing defendants to reduce their liability by naming “non-parties at fault” were unconstitutional because the Legislature had exceeded its authority in passing them.
Last month, the Supreme Court struck down provisions of the law limiting punitive damages for the same reason.