ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

BOBBY D. PERRY AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

V. HON. JOHN WARD, JUDGE

BAPTIST HEALTH

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

I. Factual History

II. Analysis

1 Appellant's complaint references the operating agreement between the Group and Group physicians. In addition, both appellant and appellee refer to the operating agreement in their arguments. The operating agreement is the contract between the Group physicians and the Group that determines how the doctors will be placed on trauma call. Section 3.04 of the service agreement specifically states that Baptist is a third-party beneficiary of the operating agreement.

2 For example, under section 1.04 of the service agreement, Baptist recognized that the proper operation of its trauma service requires physicians who specialize in trauma surgery. Section 6.03 of the agreement stated that Group physicians would be responsible for charges for surgical and other professional services provided to Baptist's trauma patients who were treated by Group physicians. In addition, section 9.03 of the agreement specified actions that will result in the immediate termination of Group physicians from providing services under the contract, including the failure to respond in a timely manner when summoned on a trauma call.

3 Appellee also argues that appellant's status as a member of a limited liability company does not give him standing under Arkansas Code Annotated § 4-32-305 (Repl. 2001) to sue. However, this statute is not applicable because this suit is not by, or againsta limited liability company (the Group). Rather, it is against Baptist Health, and, as appellee correctly notes, appellant does not purport to sue on behalf of the Group.

4 Appellant also cites to an Iowa case, Tredrea v. Anesthesia & Analgesia P.C. et al., 584 N.W.2d 276 (Iowa 1998). In that case, the Iowa Supreme Court affirmed the right of independent anesthesiologists to sue as third-party beneficiaries where a hospital signed an exclusive contract with an anesthesiology group for that group to provide anesthesiology services, and where the independent anesthesiologists/plaintiffs signed contracts with the group. The Tredrea court stated that the necessary inquiry is not the intent of the parties, but is whether the promised performance will be of pecuniary benefit to the third-party and whether the contract is so expressed as to give the promisor reason to know that such benefit is contemplated by the promisee as one of the motivating causes of his making the contract. Under that test, the Tredrea court found that the independent anesthesiologists were third-party beneficiaries of the group's contract with the hospital.