Ark. Code Ann. § 16-114-207 (2026)

RESEARCH REFERENCES

Ark. L. Rev.

Recent Development: Arkansas Constitutional Law — Arkansas Medical Malpractice Act, 58 Ark. L. Rev. 1005.

Case Notes

Constitutionality.

Where plaintiffs at trial merely made conclusory statements that this section was unconstitutional, argument on the issue was procedurally 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 patient alleged that this section was violative of the Fourteenth Amendment and Ark. Const. art. 2, § 3, but failed to raise her strict scrutiny argument before the circuit court, the Arkansas Supreme Court applied a rational basis test and determined that the statute was rationally related to the purposes of the legislature in enacting the statute. Whorton v. Dixon, 363 Ark. 330, 214 S.W.3d 225 (2005).

Patient in a medical malpractice suit argued that her constitutional rights were violated when she was precluded from introducing a physician's original deposition in which the physician testified concerning the standard of care and the suturing of the patient's bladder during a hysterectomy, but the physician later corrected his statement. The patient failed to show that the patient was prejudiced by being precluded from introducing the testimony. Crowell v. Barker, 369 Ark. 428, 255 S.W.3d 858 (2007).

In reviewing plaintiff parents' challenge to the validity of subdivision (3) of this section, the court concluded that it was unlikely that the Supreme Court of Arkansas would have accepted either their equal protection argument or separation-of-powers challenge, and the statute had already survived rational basis review. Moreover, any error was harmless as plaintiff had the chance to cross-examine defendant obstetrician on the standard of care after the defendant had taken the stand and testified on direct examination about the proper standard of care, thereby losing the protection of subdivision (3). Csiszer v. Wren, 614 F.3d 866 (8th Cir. 2010).

Trial court erred in ruling that subdivision (3) of this section was unconstitutional; the statute simply created a privilege for purposes of trial. It gave medical care providers, or their representatives, the privilege to refuse to testify as to the matters set forth in § 16-114-206. Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493 (2012).

Privilege to Refuse to Testify.

District court did not have to decide whether subdivision (3) of this section barred plaintiffs' expert witness from relying on the deposition testimony of a deceased child's treating physician to establish that the localities in which he and the treating physician practiced were similar for purposes of former version of § 16-114-206(a)(1). The expert's own deposition and supplemental affidavit were sufficient to establish that the same basic diagnostic services were available to board certified pediatricians in both Atlanta, Georgia, where he practiced and in rural Arkansas, where the treating physician practiced, and that the child would have been properly diagnosed if the treating physician had ordered some basic diagnostic tests to be performed. McMullin v. United States, 515 F. Supp. 2d 909 (E.D. Ark. 2007).

In a medical malpractice action against a nursing home, the court erred in ruling that subdivision (3) of this section did not apply to the nurses because they did not testify against themselves, but rather against their employer; only those medical professionals employed by an entity, such as physicians and nurses, could be called upon to give expert medical testimony against the entity itself under the meaning of subdivision (3). Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493 (2012).

Qualified to Testify.

Whether a witness is qualified to testify as an expert upon a particular question is a matter to be decided within the discretion of the trial court. Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986).

If there is a reasonable basis for saying a witness knows more about the subject than a person of ordinary knowledge, his evidence is admissible. Courteau v. Dodd, 299 Ark. 380, 773 S.W.2d 436 (1989).

Relevance.

In medical malpractice action, plaintiffs failed to demonstrate that the trial court abused its discretion in concluding testimony regarding defendant doctor's past experience as a medical expert for a plaintiff's attorney was relevant. 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).

Use of Equipment.

The question of whether to use a Posey vest (a safety restraint) on a patient involved a professional service where only a doctor could authorize its use, although actual placement on the patient was left to the nurse's discretion; accordingly, expert testimony as to the degree of skill used by other hospitals in the locality was required in a suit alleging negligence based on the hospital's failure to use such a vest, and, in the absence of such evidence, a directed verdict for the hospital was warranted. Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982).

Cited: Prater ex rel. Estate of Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987); HCA Health Servs. of Midwest, Inc. v. National Bank, 294 Ark. 525, 745 S.W.2d 120 (1988); Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989); First Commercial Trust Co. v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996).