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Court reinstates lawsuit against Dallas County doctor Thursday, Jan 24, 2008 By Rob Moritz Arkansas News Bureau LITTLE ROCK - The state Court of Appeals on Wednesday reinstated a malpractice and wrongful death lawsuit against a Fordyce doctor who diagnosed tonsillitis in a teenager who later died. The appeals said a Dallas County circuit judge erred in dismissing the lawsuit against Dr. Timothee Wilkin. In 2002, 14-year-old Kikendel Jermaine Banks died 16 days after Wilkin diagnosed him as having tonsillitis. The lawsuit said the boy died of tonsillitis, sepsis - blood poisoning - and aplastic anemia, a low red blood cell count. Alan Banks, the boy's uncle and administrator of his estate, sued Wilkin. After a hearing, in which the physician's attorney argued Alan Banks did not have standing in the case, Dallas County Circuit Judge David Guthrie dismissed the lawsuit. Guthrie ruled the lawsuit was filed before the county clerk issued Alan Banks the letters of administration that made him manager of the boy's estate. In its decision Wednesday reversing the lower court ruling, the appeals court said Act 438 of 2007 clarified the effect of a probate order and the purpose of letters of administration. Quoting from the law, Judge David M. Glover wrote that letters of administration "are not necessary to empower the person appointed to act for the estate," and that the "order appointing the administrator empowers the administrator to act for the estate, and any act carried out under of the authority is valid." Glover also noted a December state Supreme Court ruling in a separate case that Act 438 was retroactive. In light of the act and the Supreme Court's ruling, Glover wrote, "It is clear that it is the order of appointment, not the letters of administration, that empowers the personal representative to act on behalf of the estate." Alan Banks' attorney, Althea E. Hadden of Pine Bluff, said Wednesday she was pleased with the ruling and that she would move forward with the lawsuit. "I am excited about it. I think it was the right outcome," Hadden said. |
