Ark. Code Ann. § 16-114-203 (2026)

Research References

ALR.

Timeliness of action under medical malpractice statute of repose, aside from effect of fraudulent concealment of patient's cause of action. 14 A.L.R.6th 301.

Application of Relation-Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Medical Malpractice Cases in Actions Involving Hospitals, Clinics, and the Like. 100 A.L.R.6th 139 (2014).

Ark. L. Rev.

Recent Developments, Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994), 48 Ark. L. Rev. 885.

Prognosis Questionable: An Examination of the Constitutional Health of Arkansas Medical Malpractice Statute of Repose, 50 Ark. L. Rev. 691.

Note, To Truly Reform We Must Be Informed: Davis v. Parham, the Separation of Powers Doctrine, and the Constitutionality of Tort Reform in Arkansas, 59 Ark. L. Rev. 781.

U. Ark. Little Rock L.J.

Note, Torts — Limitations on Actions — Arkansas Adopts Continuous Treatment Rule to Toll Statute of Limitations in Medical Malpractice Actions, Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988), 11 U. Ark. Little Rock L.J. 405.

Survey — Property, 12 U. Ark. Little Rock L.J. 225.

Case Notes

Constitutionality.

Two-year statute of limitations for medical malpractice actions, absent fraudulent concealment, is not too short a time as to deprive patients of due process of law. Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976) (decision under prior law).

Plaintiff lacked standing to challenge this section on grounds that it violates the “open door” provision of Ark. Const., Art. 2, § 13. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997), overruled in part, Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49 (2013).

The statutory distinction between foreign-object medical malpractice claimants and typical medical malpractice claimants does not violate equal protection since a rational basis exists for the distinction in light of staleness considerations that are not as likely present in foreign-object cases. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).

In General.

Former similar statute which stated all tort actions for medical malpractice must be brought within two years merely fixed the time in which action could be filed, and did not create a right, as it already existed. Partin v. Wade, 172 F.2d 50 (8th Cir. 1949) (decision under prior law).

Any action alleging medical malpractice must be brought within two years after the cause of action accrues. Gilpin v. Tack, 256 F. Supp. 562 (W.D. Ark. 1966) (decision under prior law).

The limitations period on medical malpractice claims under Arkansas law is two years in most circumstances. Burrows v. Turner Mem'l Hosp., 762 F. Supp. 840 (W.D. Ark. 1991).

The two-year statute of limitations and the tolling provision of § 16-114-203 supersede the three-year period that § 16-56-116 allows after a disability is removed for persons insane at the time the right of action accrued. Smith v. Diversicare Leasing Corp. of Am., 65 Ark. App. 138, 985 S.W.2d 749 (1999).

Construction.

The limitation in this section has consistently been strictly construed, commencing the two-year period from the date of the act of alleged malpractice; although the continuous treatment doctrine has been adopted, the Supreme Court has refused to recognize other doctrines which would ameliorate the strictness of the requirement. Green v. National Health Lab., Inc., 316 Ark. 5, 870 S.W.2d 707 (1994).

Former § 16-114-204 (repealed) was invalidated in its entirety by Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992); the two-year statute of limitations set forth in subsection (a) of this section is controlling. Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994).

This section is irrelevant when a patient dies from his injuries before the two-year period has run. Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987), overruled in part on other grounds, Bailey v. Rose Care Ctr., 307 Ark. 14, 817 S.W.2d 412 (1991); Brown v. Saint Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992).

Wrongful death statute of limitations, and not medical malpractice statute of limitations, applied to action for damages for loss of consortium, mental anguish, and funeral expenses for the death of the decedent, even though his death was the result of a medical injury. Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987), overruled in part on other grounds, Bailey v. Rose Care Ctr., 307 Ark. 14, 817 S.W.2d 412 (1991).

Where statute of limitations applicable to medical malpractice actions at the time of patient's original surgery provided that an action must be brought within two years after the action's accrual, the fact that a new limitation period was enacted before patient's action was barred did not repeal the previous applicable section for actions already accrued. Sheridan v. Struble, 977 F.2d 1229 (8th Cir. 1992).

Former § 16-114-204 has been superseded and the sixty-day notice requirement and its accompanying ninety-day grace period no longer exist; the two-year limitations period of this section is controlling, notwithstanding compliance with § 16-114-204. Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995).

The limitations period provided under this subchapter conflicts with the limitations period provided under the Wrongful Death Act, § 16-62-102; the wrongful death statute of limitations, as an inconsistent provision of law, is superseded by this section where the two conflict. Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996).

Where the alleged cause of the decedent's death is a medical injury, the two-year statute of limitations provided by this section, rather than the three-year statute of limitations in § 16-62-102, is applicable. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997), overruled in part, Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49 (2013).

This section's two-year limitations period is controlling where death ensues from medical injuries accruing after April 2, 1979. Looney v. Bolt, 330 Ark. 530, 955 S.W.2d 509 (1997).

Two-year limitations period of Medical Malpractice Act, § 16-114-201 et seq., conflicts with the three-year limitations period provided under the Wrongful Death Act, § 16-62-102(c) and is therefore controlling where death ensues from medical injuries. Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).

Accrual of Cause of Action.

An amendment to a medical malpractice complaint relates back to the filing of the original complaint, unless a new cause of action is stated by the amendment. Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 (1975) (decision under prior law).

In an action against physicians for negligence in reading decedent's x-rays, the statute of limitations commenced running when the x-rays were read, and such commencement was not delayed until discovery of the negligence on the theory that it was a continuing tort. Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 (1975) (decision under prior law).

Former statute commenced to run when alleged negligence took place, absent fraudulent concealment. Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976) (decision under prior law).

If 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, this section does not commence running until treatment by the doctor for the particular disease or condition involved 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. Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988).

Where a patient was clearly under a continuing course of treatment by physician, the limitations period did not begin to run until the patient's treatment terminated; to hold otherwise might require a plaintiff to bring suit against his or her physician before treatment is even terminated, and such a result could conceivably afford the physician a defense that a patient left before treatment was terminated and before the physician had a chance to effectuate a proper result. Taylor v. Phillips, 304 Ark. 285, 801 S.W.2d 303 (1990).

The evidence presented on the issue of whether this section barred the claim did not entitle the defendants to a summary judgment. Green v. National Health Lab., Inc., 316 Ark. 5, 870 S.W.2d 707 (1994).

Actions Barred.

Where more than three years after patient's release from the medical center where she had been committed for psychiatric observation, patient filed a second amended complaint alleging for the first time negligence on psychiatrist's part, any cause of action for negligence was barred either by two-year statute applicable to medical malpractice or by the three-year statute applicable to actions for personal injuries. Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982) (decision under prior law).

Plaintiff's medical malpractice action for injury resulting from a misdiagnosis was barred by this section where it was filed nine years after the misdiagnosis occurred, but within two years of the time the plaintiff discovered that the defendant had misdiagnosed her condition. Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986).

Where parents did not even become parties to the action, and then only as guardians, until the second amended complaint, which was filed over two years after last wrongful act complaint occurred, their claims were time barred. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996), overruled in part, Ark. Dep't of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006).

Where plaintiff filed a medical malpractice action on March 4, 1994, two days short of the two-year statute of limitations under subsection (a) of this section, and had until July 2, 1994, to complete service of process pursuant to ARCP 4, requested another 120 days on June 23, 1994, and was granted a 30-day extension on July 28, 1994, and where plaintiff, after failing to obtain service, requested a nonsuit on August 18, 1994, which was granted on September 14, 1994, the claim refiled on August 11, 1995, had not invoked the one-year savings statute, § 16-56-126, and was barred by the statute of limitations. Thomson v. Zufari, 325 Ark. 208, 924 S.W.2d 796 (1996).

Claim brought within two years after the decedent's death, but over two years since the doctor last saw the patient and the cause of action accrued, was held barred by this section. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997), overruled in part, Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49 (2013).

Because the date of the accrual of the cause of action for medical malpractice is the date of the wrongful act complained of and plaintiff filed her suit more than two years after she last filled a prescription for the diet drugs popularly known as Fen/Phen, any claims she had against the pharmacy defendants were barred by the statute of limitations. Kohl v. American Home Prods. Corp., 78 F. Supp. 2d 885 (W.D. Ark. 1999).

Patient's medical malpractice claim based on a surgery performed when he was minor, which was filed when patient reached age of majority five years after the cause of action accrued, was barred by the two-year statute of limitation under this section. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001).

Although the estate contended that the statute of limitations did not bar an action for medical negligence when the resulting damages occurred many years later, the statute of limitations began to run from the date that the negligent act occurred and the court specifically declined to abandon the traditional rule for applying the statute. Harris v. Ozment, 83 Ark. App. 94, 117 S.W.3d 647 (2003).

Where appellants' attorneys, who were licensed in Oklahoma but not in Arkansas, filed appellants' medical malpractice complaint on the last day of the limitations period but did not file motions for admission pro hac vice until eight months later, the trial court properly dismissed the complaint; since Ark. R. Admis. Bar. XIV required that the pro hac vice motions be filed before the attorneys practiced law in Arkansas, the complaint was a nullity and, thus, no valid complaint was filed within the limitations period. Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003).

Where couple's attorneys were unauthorized to practice law in Arkansas, their medical malpractice complaint was a nullity, as if it had never been filed, and since the limitations for medical malpractice expired on November 19, 2001, the day the complaint was filed, no valid complaint was filed within the required two-year period. Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003).

Wrongful death action filed against healthcare providers by a decedent's parents was void ab initio where the decedent had no personal representative and the complaint failed to include as a plaintiff the decedent's half-brother; hence, subdivision (c)(1) of this section did not apply to allow the parents to add the half-brother after the limitations period had run. Andrews v. Air Evac EMS, Inc., 86 Ark. App. 161, 170 S.W.3d 303 (2004).

In a wrongful death action filed by the special administrator of decedent's estate, the trial court properly granted the doctors' motion to dismiss for lack of subject matter jurisdiction because the suit was filed before the order appointing the administrator was filed with the court clerk and the administrator did not re-file the suit before the expiration of the two-year limitations; under Ark. R. Civ. P. 58 and Ark. Sup. Ct. Admin. Order No. 2, the order appointing the administrator was not effective until it was filed with the clerk of court, therefore, the complaint was a nullity. Filyaw v. Bouton, 87 Ark. App. 320, 191 S.W.3d 540 (2004).

Since family did not name decedent's siblings as plaintiffs in a lawsuit against defendants for medical malpractice as required by § 16-62-102 where probate had not been opened, the complaint was a nullity and summary judgment in favor of defendants was proper; siblings were not named until after statute of limitations in this section expired. Rice v. Tanner, 363 Ark. 79, 210 S.W.3d 860 (2005).

Order dismissing executor's complaint alleging medical malpractice in the care and treatment of his mother prior to her death was affirmed because the executor of her estate had been discharged as executor before he sued, so the first complaint was a nullity, and the new complaint was not filed before the expiration of the applicable statute of limitations. Johnson v. Greene Acres Nursing Home Ass'n, 364 Ark. 306, 219 S.W.3d 138 (2005).

Motion to set aside a default judgment in a medical malpractice case should have been granted as the patient lacked standing to pursue the claim based on the fact that she had filed bankruptcy; moreover, the statute of limitations had run when she filed a motion to substitute a bankruptcy trustee as a party. Fields v. Byrd, 96 Ark. App. 174, 239 S.W.3d 543 (2006).

Wrongful-death and survival action brought by the administratrix of the decedent's estate against the medical center was time-barred under this section as the order appointing the administratrix was not effective until it was filed almost two weeks after the complaint was filed, thereby making the complaint a nullity. Hubbard v. Nat'l Healthcare of Pocahontas, Inc., 371 Ark. 444, 267 S.W.3d 573 (2007).

Trial court did not err by granting the doctors' summary judgment motion because the medical malpractice action was not properly filed within the two-year statute of limitations of subsection (a) of this section. The trial court did not err in holding that the November 3, 2009 order of substitution of parties was ineffective and therefore the action was barred by the statute of limitations because: (1) the wrongful death complaint filed by the patient's daughter and husband in April 2009 was a nullity because four siblings of the patient were omitted as party plaintiffs as required by § 16-62-102(b) and therefore it never existed; (2) the order of substitution of parties that substituted the daughter in her capacity of estate administrator as the party plaintiff did not allege any facts supporting the action and therefore did not constitute an amended complaint; (3) the order of substitution was entered on November 3, 2009, after the statute of limitations had expired as to each doctor in July 2009 and September 2009; and (4) the estate administrator could not establish the first element of the continuous-course-of-treatment doctrine because she could not establish that the doctors provided continuous treatment to the patient up to November 3, 2009. Mendez v. Glover, 2010 Ark. App. 808, 379 S.W.3d 92 (2010).

Heirs' negligence, medical malpractice, and wrongful death claims against the medical facilities were barred by this section where the facilities were not named as parties until the limitations period had expired, and any argument that the amended complaint related back under Ark. R. Civ. P. 15(c) had not been raised in the trial court. Worden v. Kirchner, 2013 Ark. 509, 431 S.W.3d 243 (2013).

Circuit court properly dismissed a patient's medical-malpractice action against doctors with prejudice because service was not obtained within 120 days as required by Ark. R. Civ. P. 4, and there was simply no proof of timely service presented to support the patient's claim that the doctors had been served by certified mail. No green cards were returned for three of the defendant doctors. Although a green card was returned for a fourth defendant doctor, there was no proof that the person who signed it was the doctor's agent. McCoy v. Robertson, 2018 Ark. App. 279, 550 S.W.3d 33 (2018).

Actions Not Barred.

Where plaintiff filed a tort action for malpractice against the defendant within two-year period of limitations and took a nonsuit, plaintiff could maintain a second suit based on same cause of action where filed within one year of the nonsuit, though second action was filed more than two years after the occurrence of the tort. Partin v. Wade, 172 F.2d 50 (8th Cir. 1949) (decision under prior law).

Physician was not estopped from pleading statute of limitations in a malpractice action because of the fiduciary relationship between the doctor and patient. Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 (1975) (decision under prior law).

Since it is the issuance of a summons and placing it in the hands of the sheriff of the proper county, not its serving, that commences an action, where summons was issued but not served and a second summons issued after the running of the statute of limitations, the action was not barred, since the action commenced with the issuing of the first summons before the statute had run. Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 (1975) (decision under prior law).

The dismissal of the original complaint without prejudice extended for one year the limitations period for that cause of action. Burrows v. Turner Mem'l Hosp., 762 F. Supp. 840 (W.D. Ark. 1991).

Appeals.

Court order denying motion for summary judgment, holding statute of limitations to be unconstitutional insofar as it denied a remedy to the plaintiff, was not appealable. Ross v. McDaniel, 252 Ark. 253, 478 S.W.2d 430 (1972) (decision under prior law).

Continuing Tort.

The misreading of a pap smear was not a continuing tort, accruing freshly until the mistake was discovered, but was a single wrongful act. Humphreys v. Roche Biomedical Lab., Inc., 990 F.2d 1078 (8th Cir. 1993).

With one exception, Arkansas courts do not recognize either the discovery rule or a continuing tort theory in the context of medical malpractice cases. Humphreys v. Roche Biomedical Lab., Inc., 990 F.2d 1078 (8th Cir. 1993).

Where there was a single, isolated act of alleged medical malpractice involving the choice of the particular procedure used during a foot surgery, and where the procedure actually used on the patient's foot was correctly performed, the informal, weekly trimming of the patient's calluses did not amount to a series of negligent acts or continuing course of improper treatment sufficient to toll the statute of limitations. Hobbs v. Naples, 993 F.2d 173 (8th Cir. 1993).

The continuous-treatment doctrine does not apply to toll this section coextensively with the physician-patient relationship, even if no continuing treatment occurs. Raynor v. Kyser, 338 Ark. 366, 993 S.W.2d 913 (1999).

Where there is no more physician-patient interaction occurring other than the scheduling of future visits, the continuous treatment does not apply to toll the statute of limitations. Raynor v. Kyser, 338 Ark. 366, 993 S.W.2d 913 (1999).

The period between January 1985 and October 1994 was barred by the statute of limitations, notwithstanding the plaintiff's assertion of the continuous treatment theory, where it was undisputed that the plaintiff did not seek treatment for her nasal polyps from March 1991 until October 1994, even though she had been instructed to schedule a follow-up appointment six months after her March 1991 visit. Raynor v. Kyser, 64 Ark. App. 365, 984 S.W.2d 451 (1998).

The statute of limitations began to run from the time of the plaintiff's last post-operative follow-up examination, notwithstanding that she was instructed to come back again in six months and that she did return to the defendant doctor about four months later, since that visit was prompted by unrelated concerns and the plaintiff did not mention the surgery during that visit. Raynor v. Kyser, 64 Ark. App. 365, 984 S.W.2d 451 (1998).

The continuous course of treatment doctrine did not apply in an action for medical malpractice arising from the reading of the plaintiff's annual mammograms since each mammogram was a single, isolated act of alleged negligence. Baker v. Radiology Assocs., 72 Ark. App. 193, 35 S.W.3d 354 (2000).

Continuing Treatment Doctrine.

The continuing treatment doctrine did not apply to toll the statute of limitations in a medical malpractice action, notwithstanding that the plaintiff amended his complaint to allege that the defendant physician “failed to properly and adequately treat, diagnose and repair the medical conditions … incurred as a result of the previous] surgical procedures,” where it was clear the alleged injuries and damages stemmed from the surgeries themselves, rather than the follow-up care, and that the injuries were not of a cumulative nature that prevented the court from identifying which individual acts caused the damages. Hicks v. Armstrong, 253 F.3d 1072 (8th Cir. 2001).

Appellate court reversed a grant of summary judgment in favor of a doctor and clinic as husband was prevented from completing discovery that might have established that the continuous-treatment doctrine tolled the statute of limitations in his medical malpractice claim involving the death of his wife. Pledger v. Carrick, 362 Ark. 182, 208 S.W.3d 100 (2005).

Grant of summary judgment based on the two-year statute of limitations in this section was inappropriate because material facts were in dispute as to whether the treating psychiatrist continuously treated the patient when the psychiatrist began to withdraw the level of pharmaceuticals administered to the patient before the patient shot and killed the personal representative's late spouse. Fleming v. Vest, 2015 Ark. App. 636, 475 S.W.3d 576 (2015).

Discovery of Foreign Objects.

Action for malpractice based on operation performed in 1926 where patient knew within seven or eight weeks that something was causing her to suffer but did not discover that a gauze had been left in her body until another operation in 1936, absent allegation of fraudulent concealment by physician, was barred by former statute. Steele v. Gann, 197 Ark. 480, 123 S.W.2d 520 (1939) (decision under prior law).

Where the “foreign objects” are discovered within the two-year period, the exception in subsection (b) is not applicable and the action still needs to be commenced within two years of the date of the wrongful act complained of; the one-year extension applies only if the object is not discovered, and could not reasonably have been discovered, within the two-year period. Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994).

Where the presence of a foreign object left in a patient is concealed by the physician, the act of concealment is part of the wrongful act, and the cause of action does not accrue until the concealment ends. Howard v. Northwest Ark. Surgical Clinic, 324 Ark. 375, 921 S.W.2d 596 (1996).

Doctor's motion to dismiss the patient's malpractice case was granted where, pursuant to this section, the patient did not provide the Arkansas Supreme Court with authority that would compel a finding that her own ovary should constitute a foreign object, the later discovery of which should toll the running of the statute of limitations. Reed v. Guard, 374 Ark. 1, 285 S.W.3d 662 (2008).

Fraudulent Concealment.

Doctor's reference in a discharge summary to the conclusions of another doctor held not to constitute fraudulent concealment. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997), overruled in part, Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49 (2013).

Doctor was under an affirmative duty to inform patient that he had removed her only remaining ovary during surgery to remove her bladder, and his failure to disclose removal of patient's ovary constituted fraudulent concealment, tolling the statute of limitations. Roberts v. Francis, 128 F.3d 647 (8th Cir. 1997).

There was no fraudulent concealment sufficient to toll the statute of limitations in a medical malpractice action where the defendant physician allegedly misrepresented the nature of the product Orthoblock; this is a question regarding the efficacy of the material to be used, and not a fraudulent concealment of a negligent act. Johnson v. Arthur, 65 Ark. App. 220, 986 S.W.2d 874 (1999).

There was no fraudulent concealment sufficient to toll the statute of limitations where the plaintiffs alleged facts that only amounted to a failure to inform and a continuation of a prior nondisclosure. Martin v. Arthur, 65 Ark. App. 276, 986 S.W.2d 143, aff'd in part, reversed in part, 339 Ark. 149, 3 S.W.3d 684 (1999).

The repealer clause added to the savings statute found in § 16-56-116 does not have the effect of repealing the specific savings statute enacted for minor children in this section. Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000).

Because a general statute must yield when there is a specific statute involving the particular subject matter, in a minor child's medical malpractice action, the two-year statute of limitations in this section applied rather than the three-year statute of limitation in § 16-56-116. Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000).

There was no fraudulent concealment arising from a misstatement in the plaintiff's medical records regarding the size of her reconstructive breast implant, which report was relied on by a physician replacing the implant and led to his not having the correct size implant available during surgery, since (1) the act allegedly perpetrated was not done in such a way that it concealed itself, and, on the contrary, was part of the plaintiff's medical record, (2) there was no evidence that the defendant actually knew of the error in his report, (3) there was no evidence that the defendant was ever informed of the error in his report, and (4) the plaintiff could easily have detected the error by merely requesting her medical records in their entirety. Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001).

Tolling of Statute.

Statute of limitations does not bar suit if there has been fraudulent concealment of cause of action. Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953) (decision under prior law).

Issue as to whether fraudulent concealment tolled statute was for jury where doctor did not advise patient that he had used wire to close operational wound, though presence of wire was easily ascertained by another doctor. Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953) (decision under prior law).

Knowledge of the wrong done on the part of the physician is a necessary prerequisite to a tolling of the statute of limitations; thus where a doctor negligently read a patient's X ray thereby causing concealment of patient's disease there was no tolling of the statute. Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 (1975) (decision under prior law).

Summary judgment on the ground that the two-year statute of limitations had expired was proper in a medical malpractice action, where the patient's continued ingestion of medicine prescribed by her physician was not enough to establish an on-going course of treatment for the purpose of applying the continuous treatment doctrine in order to toll the statute of limitations until treatment was discontinued. Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993).

Where defendant did nothing to prevent plaintiff from discovering the falsity of his reputed representation, plaintiff failed to show an affirmative act of concealment, and her cause of action advanced under either a medical injury or invasion of privacy theory accrued on her last treatment date. Norris v. Bakker, 320 Ark. 629, 899 S.W.2d 70 (1995).

The limitations period of this section is not tolled during the period after the decedent dies but before the doctor issues a written report. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997), overruled in part, Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49 (2013).

Where a patient is able to identify the specific negligent treatment that caused her injury, the continuous treatment doctrine does not toll the statute of limitations. Roberts v. Francis, 128 F.3d 647 (8th Cir. 1997).

The continuous treatment doctrine which tolls this section's limitations period becomes relevant when the medical negligence consists of a series of negligent acts, or a continuing course of improper treatments. Wright v. Sharma, 330 Ark. 704, 956 S.W.2d 191 (1997).

There will not always be genuine issues of material fact as to fraudulent concealment in all informed consent cases so as to defeat a motion for summary judgment based on the expiration of the statute of limitations; there must be something more than nondisclosure or a continuation of that nondisclosure to toll the limitations period. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).

Suit by the administrator of decedent's estate for wrongful death resulting from alleged medical malpractice was time-barred because it had not been filed within two years of the decedent's death as required by this section; although the suit had been filed within one year of the date on which a previous suit against the same healthcare providers filed by the decedent's heirs had been non-suited, the estate had not been a party to the first action and could not, therefore, rely on the saving provision contained in § 16-56-126 to overcome the running of the statute of limitations. Tatus v. Hayes, 79 Ark. App. 371, 88 S.W.3d 864 (2002).

Statute of limitations had run on a medical malpractice action and had not been tolled where the estate administrator's claims related to the failure of the physicians and clinic to inform decedent of the aortic aneurysm, failure to diagnose, failure to read the x-ray correctly, and failure to provide follow-up care; thus, none of the points rose to the level of a positive act of fraud sufficient to have tolled the statute. Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).

Although the amended complaint in parents' medical malpractice action was filed before the expiration of the two-year statute of limitations, the limitations period was not tolled because a summons was never issued, and parents admitted they failed to complete service of process of the amended complaint as required by Ark. R. Civ. P. 4; while Ark. R. Civ. P. 3 provides that an action is commenced by filing a complaint with the clerk of the proper court, the effectiveness of the commencement date is dependent upon a party satisfying the requirements of Ark. R. Civ. P. 4(i), which provides that service of process on a defendant must be accomplished within 120 days after the filing of the complaint. Posey v. St. Bernard's Healthcare, Inc., 365 Ark. 154, 226 S.W.3d 757 (2006).

Dismissal of a mother and father's wrongful death and survival action against the doctors, nurses, and hospital when their child was stillborn was proper as the tolling provisions of subsection (c) of this section did not apply where the mother was appointed personal representative of the infant's estate at the time the complaint was filed, and the complaint was filed more than two years after the death of the infant. Dachs v. Hendrix, 103 Ark. App. 184, 287 S.W.3d 627 (2008), superseded, 2009 Ark. 542, 354 S.W.3d 95 (2009).

Minority tolling provision of subdivision (c)(1) of this section was inapplicable where the minor at issue was stillborn. Dachs v. Hendrix, 2009 Ark. 542, 354 S.W.3d 95 (2009).

Waiver.

Affirmative acts by plaintiff's agents and attorney did not waive notice requirement under subsection (a). Ofili v. Osco Drug, Inc., 300 Ark. 431, 780 S.W.2d 11 (1989); Hailey v. Kemp, 300 Ark. 120, 776 S.W.2d 828 (1989).

Wrongful Death.

Any medical injury, even one resulting in death, is governed by this section and not the wrongful death statute of limitations found in § 16-62-102. Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996).

When a death results from a medical injury, a resulting lawsuit must be filed within the two-year limitations period of the Medical Malpractice Act, not within the three-year period of the Wrongful Death Act. Scarlett v. Rose Care, Inc., 328 Ark. 672, 944 S.W.2d 545 (1997).

Medical malpractice in a wrongful death action was controlled by the 2-year medical malpractice statute of limitations in this section, and the action was barred where the alleged negligence occurred on January 26 and 29, 2001, and the complaint was filed on February 25, 2004, more than 3 years from the date of the alleged misreadings of deceased's chest x-rays. Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).

Cited: Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983); Fuller v. Marx, 724 F.2d 717 (8th Cir. 1984); McEntire v. Malloy, 288 Ark. 582, 707 S.W.2d 773 (1986); Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986); HCA Health Servs. of Midwest, Inc. v. National Bank, 294 Ark. 525, 745 S.W.2d 120 (1988); Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991); Black v. Crawley, 304 Ark. 716, 804 S.W.2d 366 (1991); Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991); Brown v. Saint Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992); Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992); Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994); Williams v. Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997); McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998); Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Baylark v. Helena Reg'l Med. Ctr., 2012 Ark. 405 (2012).