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April 29, 2003

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Published Apr. 25 in The Morning News

Judge dismisses suit against Air-Evac, hospital
Couple claimed infant died after medical helicopter equipment malfunctioned

By LANA F. FLOWERS
The Morning News/NWAonline.net

BENTONVILLE A lawsuit claiming that a baby died because of faulty equipment on an Air-Evac helicopter en route from Siloam Springs to Northwest Medical Center in Springdale was dismissed Thursday, because the deceased infant's half-brother was not included as a plaintiff in the wrongful death lawsuit.

Benton County Circuit Judge David Clinger, after hearing arguments on Thursday, granted Air-Evac's and Northwest Medical Center's joint motion to dismiss the lawsuit filed by James and Melissa Andrews.

Clinger dismissed the wrongful death lawsuit with prejudice, which means the case cannot be refiled.

The Andrews' attorney, Richard Marrs of Tulsa, said he plans to appeal Clinger's ruling.

Clinger ruled that Arkansas laws require that a wrongful death lawsuit be filed by all the heirs and statutory beneficiaries of the deceased. In the couple's suit, only James and Melissa, parents of the deceased infant, are named as plaintiffs in the wrongful death action.

There also is a minor half-brother of the dead baby's, who also should have been named as a plaintiff in the wrongful death action, Clinger ruled.

Marrs asked Clinger to allow the couple to amend their lawsuit and simply add the name of the deceased infant's minor half-brother as a plaintiff.

Air-Evac's attorney, James Estes, countered that adding a plaintiff creates a new lawsuit. Estes said that is not permitted because the medical malpractice statute states that plaintiffs have up to two years after the date of the alleged malpractice to file the lawsuit.

The parents filed the wrongful death lawsuit on Aug. 3, 2000, and the suit alleges the medical negligence occurred in December 1999. The baby died on Dec. 23, 1999, Estes noted.

That means the two-year window for bringing the medical malpractice lawsuit closed in  December 2001, Estes said, and it is now too late to refile the case with a new plaintiff added.

Clinger agreed with Estes' arguments, and noted the minor half-brother should have been named as a plaintiff sooner.

"I believe that the Supreme Court has said you have to cure it prior to the running of the statute of limitations. You have two years to make it right. You have two years to name all your heirs," Clinger said.

James and Melissa Andrews, parents of the deceased infant, Tyler Garrett Andrews, sued Air-Evac EMS Inc., Northwest Medical Center, Community Care Foundation Inc. and Quorum Health Group of Springdale.

The suit stated that Northwest Medical Center is the name under which the Community Care Foundation and Quorum Health Group did business in 1999.

Tyler Garrett Andrews was born on Dec. 18, 1999, at Siloam Springs Memorial Hospital. He was born with hylane membrane disease, which required that the baby have oxygen to assist with breathing until his lungs developed, according to the suit.

Representatives of Siloam Springs Memorial Hospital called Air-Evac to take Tyler Andrews to Northwest Medical Center in Springdale on Dec. 18, 1999.

There was an attempt to load the baby onto the Air-Evac helicopter soon after it landed, but the infant had to be removed from the isolet, an oxygen-delivery device for infants that was brought from Springdale in the helicopter, because the isolet malfunctioned, the suit stated.

After the isolet was "allegedly repaired," according to the suit, Tyler Andrews was loaded onto the helicopter again and the helicopter left Siloam Springs Memorial Hospital at 2:30 a.m. Dec. 19, 1999.

During the flight to Springdale, the isolet ran out of oxygen, the suit stated.

The helicopter landed in Springdale at 2:45 a.m. Dec. 19, 1999, and Tyler Andrews was admitted to  Northwest Medical Center. The baby was "in severe respiratory distress, and his skin had turned purple," the suit stated.

Tyler Andrews died on Dec. 23, 1999, from damage to his brain caused by lack of oxygen during the Air-Evac flight, according to the suit.

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