Article source: Birth Injury Law Group
A single sentence added to Arkansas’s medical-malpractice statute in 2025 substantially changed the limitations analysis for injuries occurring during childbirth.
Previously, Arkansas’s special rule for young minors generally allowed a medical-malpractice action until the later of the child’s eleventh birthday or two years after the alleged act or omission. The amended statute now provides that when an alleged medical injury “occurred during childbirth,” the child or the child’s representative has until the child’s fifth birthday to commence the action.
The new rule looks unusually clear. Its interaction with older claims and with another provision of the same statute is less clear.
Act 124 created a separate childbirth deadline
The change came through Act 124 of 2025 (HB 1427), the Healthy Moms, Healthy Babies Act. Section 4 amended Arkansas Code § 16-114-203(c) by adding subsection (3), which establishes the fifth-birthday deadline for an alleged medical injury occurring during childbirth. The legislature also amended subsection (c)(1) to begin, “Except as otherwise provided in this subsection.”
Act 124 was approved February 20, 2025. It contained no emergency clause or separate effective-date provision. Because Arkansas’s 2025 regular session adjourned sine die on May 5, acts in that category became effective August 5, 2025, according to the state Bureau of Legislative Research.
For a Little Rock family discussing a delivery-related brachial plexus injury with erb’s palsy attorneys Little Rock, that effective date can matter almost as much as the child’s birthday. It determines when the new statutory language entered Arkansas law, but it does not by itself answer what happens to every claim that arose before then.
What happens to a child born before August 5, 2025?
This is the amendment’s most important unresolved practical question.
Suppose a child suffered an alleged childbirth injury several years before the new law took effect. Under the prior version of subsection (c)(1), a young minor could potentially have had until the eleventh birthday. If subsection (c)(3) were applied to that existing claim, the available period could be reduced substantially, and for a child already older than five on August 5, 2025, application of the new deadline could mean the fifth birthday had already passed.
Arkansas law supplies principles for analyzing that problem, but not yet a reported appellate answer specific to this amendment.
The Arkansas Supreme Court has repeatedly stated that statutes are generally presumed to operate prospectively unless legislative intent for retroactive application is clearly expressed or necessarily implied. At the same time, the court has recognized that the General Assembly can reduce a limitations period affecting an existing cause of action when a reasonable period is provided for bringing the action. Morton v. Tullgren, for example, discusses both principles.
Act 124 does not expressly say that the new fifth-birthday provision applies retroactively, nor does Section 4 contain a special transition rule for children whose alleged injuries occurred before August 5, 2025.
That makes it unsafe to look only at a six- or seven-year-old child’s present age and conclude automatically that an older claim disappeared when subsection (c)(3) took effect. The injury date, the law in force when the claim accrued, the amendment’s effective date, and Arkansas retroactivity doctrine all may require analysis.
The discovery provision creates a second question
Subsection (c)(2) remains in the statute. It addresses a different situation: no medical injury was known, and the injury could not reasonably have been discovered before the child’s eleventh birthday. In that circumstance, the statute provides a period running from discovery, subject to the child’s nineteenth birthday.
The 2025 amendment does not expressly state whether that discovery provision can extend a claim that otherwise falls within the new “during childbirth” rule. Subsection (c)(3) simply states that the child or representative “shall have until the minor’s fifth birthday” to commence the action.
That drafting creates a question the statutory text does not expressly resolve: is subsection (c)(3) a categorical deadline for childbirth injuries, or can subsection (c)(2) still operate when the injury itself genuinely could not reasonably have been discovered?
The distinction should not be confused with uncertainty about prognosis. The National Institute of Neurological Disorders and Stroke’s description of brachial plexus injury notes that some birth-related injuries improve while others can produce chronic impairment. A child’s eventual level of recovery may therefore remain uncertain for some time.
But knowing that an injury exists and knowing its ultimate severity are different things. If Erb’s palsy or another brachial plexus injury was identified soon after delivery, later uncertainty over whether function will fully return does not necessarily mean the “medical injury” itself was undiscoverable for purposes of subsection (c)(2).
“During childbirth” may become its own litigation issue
There is another phrase in the amendment that deserves attention: “occurred during childbirth.”
The statute does not separately define that phrase. That matters because an obstetric case can involve decisions made during prenatal care, labor management, the delivery itself, and immediate newborn treatment. An alleged negligent act might occur before delivery even though the resulting injury becomes apparent during or after birth.
Erb’s palsy illustrates the problem. NINDS describes it as an upper brachial plexus injury, and notes that brachial plexus injuries can occur when a baby’s shoulders become impacted during delivery and the nerves stretch or tear. The diagnosis itself, however, does not establish negligence. LawFuel has separately examined the evidentiary distinction between an adverse medical outcome and provable medical negligence, as well as the importance of causation disputes.
For limitations purposes, the additional issue is temporal: when did the alleged medical injury occur? A claim centered on delivery maneuvers presents a different statutory question from one centered on prenatal management or treatment after birth.
That analysis is the same statewide, including in Little Rock. What can become locally significant is a medical history spread across different providers: prenatal care, the delivery facility, and later pediatric or neurological treatment, because identifying the relevant act and the point at which the injury occurred may determine which limitations provision is implicated.
The fifth birthday is the beginning of the analysis, not always the end
Arkansas’s 2025 amendment unquestionably makes the fifth birthday a critical date for claims involving medical injuries occurring during childbirth. What it does not yet provide is a judicially tested answer for every case surrounding that date.
Claims arising after the amendment took effect present the clearest application of subsection (c)(3). Older claims require the additional retroactivity analysis. Cases involving an injury that was genuinely undiscoverable raise the relationship between subsections (c)(2) and (c)(3). And cases spanning prenatal, delivery, and postnatal care may first require a determination of whether the alleged injury occurred “during childbirth” at all.
Those questions make § 16-114-203 more than a simple five-year countdown. Until Arkansas appellate courts define the new provision’s boundaries, the dates and medical theory of an individual claim remain central to determining which deadline actually governs.
This article provides general information about Arkansas medical-malpractice law and is not legal advice for an individual case.
