Robert L. Brown

“ 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. ”

“ He wants to know whether any Category X insureds received cancellation notices for failure to pay when he did not.
Parker asked for the 20 most recent cancellation notices mailed by Farm Bureau to its insureds. When Farm Bureau moved for a protective order, Parker responded that he was entitled to this information "to see if [Farm Bureau] dealt with [the 20] differently than [himself] ." At the first hearing on the discovery request, counsel for Parker argued to the court:
We think under the liberal discovery rules that we are entitled to that information. ”

“ In general, ordinary decisions by an employer to hire an employee or independent contractor are not subject to any similar statutory safeguards. Nor do we agree with the Paulinos that Arkansas's Peer Review Statute contemplates a direct cause of action against NMC due to the fact that NMC is not entitled to immunity as part of the peer review committees under the statute relating to discovery and introduction of documents and testimony into evidence. ”

“ Under the Act, an action for medical injury means "any action against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of medical injury." Ark. Code Ann. § 16-114-201 (1) (Repl. 2006) . A medical care provider includes a hospital. Ark. Code Ann. § 16-114-201 (2) . A "medical injury" is defined as
any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services ”

“ The majority has decided that this information is not pertinent and that Parker in this case must give absolute credence to the carrier's representation that uniform procedures relating to cancellations were followed in this case. I disagree. The essence of litigation is proof – not representations by an adversary of what should have been done. Parker ought not to be bound by what Farm Bureau states its general procedures were. He is entitled to go behind Farm Bureau's statements to verify what in reality was done with regard to cancellations. ”

“ In so doing, we consider the fact that appellant, if he has any claim against State Farm, is placed in the position of having to prove it by the testimony of officers and agents of State Farm and by documents, papers and letters, written by them and kept by State Farm. ”

“ 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 in the instant case hinges its truncation of discovery on two factors: (1) that the request is an outright and unadulterated fishing expedition; and (2) that Farm Bureau has a dual-billing system and, thus, was treating its insureds differently for cancellation-notice purposes. ”

“ The final complaint in this case, the fifth amended complaint, asserted claims against NMC, John Doe 1, John Doe 2, and/or John Doe 3. The causes of action asserted were negligence, corporate negligence, negligent credentialing, negligent selection, negligent retention, lack of informed consent, and outrage. All of the negligence counts related to NMC's negligently permitting Dr. Raben to perform surgery on Mrs. Paulino and negligently permitting Richard to monitor that surgery. The Paulinos also requested punitive damages. ”

“ McManus, 294 Ark. 275, 277, 742 S.W.2d 559, 560, opinion supplemented on denial of reh'g, 294 Ark. 275, 745 S.W.2d 140 (1988) ("In the absence of an award for damages for the underlying cause of action, punitive damages are improper.") . ”