ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CA03-339

October 1, 2003

SHERRY EBBS AN APPEAL FROM THE SALINE

APPELLANT COUNTY CIRCUIT COURT

v. [CV02-50-3]

KERRY OZMENT, M.D., P.A. HONORABLE GRISHAM PHILLIPS,

APPELLEE JR., JUDGE

AFFIRMED

Olly Neal, Judge

Appellant Sherry Ebbs appeals from an order of the Saline County Circuit Court granting summary judgment in favor of the appellee, Dr. Kerry Ozment. On appeal, Ebbs raises the question of whether the two year statute of limitations set forth in Ark. Code Ann. § 16-114-203 (Supp. 2003) bars a cause of action for medical negligence when the initial negligent act occurred several years ago but the resulting injury did not manifest itself until years after the two year statute of limitations period. Ebbs also raises the question of whether the limitations period begins to run at the time the injury actually occurred. We affirm.

In November of 1983, Ebbs underwent Roux-Y gastric bypass surgery. The surgery was performed by Dr. Ozment. One year following the surgery, Ebbs informed Dr. Ozment that she was not experiencing any problems that were the result of the surgery. In February of 2000, Ebbs began experiencing various neurological and physical symptoms such as fatigue, weakness, numbness, and pain. She was examined by Dr. Sami Harik. Dr. Harik found that the sole and proximate cause of Ebbs's symptoms was the lack of proper post-operative care following her Roux-Y gastric bypass surgery.

On January 15, 2002, Ebbs filed a medical negligence complaint against Dr. Ozment. She alleged that Dr. Ozment's failure to provide the proper post-operative care was a deviation from the standard of care and constituted medical negligence. She also alleged that Dr. Ozment's medical negligence was the sole and proximate cause of her damages.

Dr. Ozment asserted the statute of limitations as a defense and moved for summary judgment. On December 12, 2002, the trial court granted Dr. Ozment's motion for summary judgment and dismissed Ebbs's complaint with prejudice.

On appeal, Ebbs asserts that the trial court erred in granting Dr. Ozment's motion for summary judgment and dismissing her complaint. She asks that we hold that her cause of action was not barred by the statute of limitations and that the limitations period commences to run at the time the damages of the negligent act actually occurs. Based on our decision in Harris v. Ozment, Ark. App. , S.W.3d (Sept. 17, 2003) we hold that the two- year statute of limitations bars Ebbs's cause of action and affirm the grant of summary judgment.

In Harris v. Ozment, supra, the appellant underwent gastric bypass surgery in November 1989, and in March 2000, she learned that she was experiencing complications that were the result of her surgery. The appellant filed a complaint alleging medical negligence in February 2002. As in the case at bar, the trial court in Harris found that the appellant's claim of medical negligence was barred by the two-year statute of limitations set forth in Ark. Code Ann. § 16-114-203 and granted the appellee's motion for summary judgment. On appeal, the appellant argued that the limitations period set forth in section 16-114-203 did not bar a cause of medical negligence when the resulting damages did not manifest themselves until years later. Our court stated that:

It has long been the law in Arkansas that the statute of limitations begins to run from the date that the negligent act occurred. Green v. National Health Lab., Inc., 316 Ark. 5, 870 S.W.2d 707 (1994); Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991); Baker v. Radiology Assocs., P.A., [72 Ark. App. 193, 35 S.W.3d 354 (2000).] Moreover, the supreme court in Chapman v. Alexander, supra, specifically declined to abandon this traditional rule for applying the statute of limitations for other theories such as applying the statute of limitations from the date of injury.

Harris v. Ozment, Ark. App. at , S.W.3d. at . Accordingly, we held that the alleged act of negligence occurred in November 1989 when the appellant's surgery was performed and that under section 16-114-203, the appellant had until November 1991 to bring forth a claim of medical negligence. We, therefore, held that the appellant's action filed in 2002 was barred in by the statute of limitations.

In the case at bar, the alleged negligent act occurred in November 1983. Therefore, in accordance with Harris v. Ozment, supra, Ebbs had until November 1985 to bring forth a cause of action for medical negligence. Hence, Ebbs's cause of action filed in January 2002, was barred by the running of the two-year limitations period, and the grant of summary judgment was proper.

Affirmed.

Robbins and Griffen, JJ., agree.