Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 17165-PR

• Decision Date: 10 December 1984
• Docket Number: No. 17165-PR,17165-PR
• Citation: 143 Ariz. 101,692 P.2d 280
• Parties: Teresa V. BARRIO, individually, Plaintiff/Appellant, v. SAN MANUEL DIVISION HOSPITAL FOR MAGMA COPPER COMPANY; Ruth Elizabeth Findlay, individually and as personal representative of the Estate of Francis M. Findlay, M.D.; Franc Brodar, M.D., and Betty Brodar, husband and wife, Defendants/Appellees.
• Court: Arizona Supreme Court

Page 280

692 P.2d 280

143 Ariz. 101

Teresa V. BARRIO, individually, Plaintiff/Appellant, v. SAN MANUEL DIVISION HOSPITAL FOR MAGMA COPPER COMPANY; Ruth Elizabeth Findlay, individually and as personal representative of the Estate of Francis M. Findlay, M.D.; Franc Brodar, M.D., and Betty Brodar, husband and wife, Defendants/Appellees.

No. 17165-PR.

Supreme Court of Arizona, In Banc.

Dec. 10, 1984.

Haralson, Kinerk & Morey by Burton J. Kinerk, William H. Ricker, Tucson, for appellant

Robbins & Green by Richard W. Abbuhl, Brian Imbornoni, Phoenix, for appellees.

FELDMAN, Justice.

Teresa V. Barrio (plaintiff) was born on August 8, 1962 at the hospital operated by Magma Copper Company's (Magma) San Manuel Division. In 1982 she filed suit against the hospital and two of the doctors who practiced there (defendants), alleging that medical care rendered at the time of her birth resulted in serious and permanent injuries, including paralysis and a loss of intellectual function. The filing was timely under Ariz.Rev.Stat. § 12-502, the general tolling statute that covers the effect of minority, insanity or imprisonment on the time allowed for bringing any personal injury The only issue presented in the petition for review was the following: does A.R.S. § 12-564(D), creating a separate tolling provision for infants injured by health care providers, violate the equal protection clause of the fourteenth amendment of the United States Constitution and the privileges and immunities clause of the Arizona Constitution? We granted plaintiff's petition for review because of the importance of the constitutional claim presented. Rule 23(c), Ariz. R.Civ.App.Proc., 17A A.R.S.

action; it was, however, barred under Ariz.Rev.Stat. § 12-564(D), a special statute of limitation that applies only to medical malpractice actions. Defendants moved for summary judgment on the ground that the action was time barred, and the trial court granted the motion. The court of appeals affirmed. Barrio v. San Manuel Hospital, 143 Ariz. 114, 692 P.2d 290- (1983).

After granting the petition, we ordered the parties to file supplemental briefs, Rule 23(f), id., discussing the following issues:

1. Is A.R.S. § 12-564(D) subject to the strict scrutiny test because of its effect upon the rights guaranteed by art. 18, § 6 of the Arizona Constitution?

2. Is A.R.S. § 12-564(D) as applied in this case unconstitutional because of art. 18, § 6 of the Arizona Constitution?

3. Given the provisions of A.R.S. § 12-502 as applied to incompetent plaintiffs in other tort cases, do the provisions of A.R.S. § 12-564(D) violate equal protection?

4. Is A.R.S. § 12-502 applicable?

Since we find that the second issue is dispositive, we do not reach the equal protection question. But see Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984).

FACTS

At the time of Teresa's birth, Drs. Franc Brodar and Francis Findlay were the attending physicians in San Manuel Hospital. They were employees of Magma. It is alleged that they allowed Teresa's mother to go through three days of difficult labor before delivering the child by cesarean section, even though a third physician had informed them that cesarean delivery was medically indicated for the patient. It is further alleged that these acts of negligence resulted in serious injuries, including partial paralysis, from which Teresa is still suffering.

Teresa's malpractice action was filed on February 11, 1982. This would have been timely for any other action because A.R.S. § 12-502 provides that the period of legal disabilities resulting from minority and incompetency "shall not be deemed a portion of the period limited for commencement of the action." The effect of § 12-502 and § 12-542 (which govern almost all other tort actions) would have been to give Teresa until her twentieth birthday to bring the action. However, in 1976, the legislature enacted the Medical Malpractice Act, § 12-561, et seq. Section 12-564 of the Act contains a special statute of limitations for situations in which an action for personal injury is asserted against a licensed health care provider. Subsection D of § 12-564 states:

Notwithstanding the provisions of § 12-502, in an action on behalf of a minor injured under the age of seven, the applicable period of limitations [three years] begins to run when the minor reaches his or her seventh birthday, or on death, whichever occurs earlier.

If that statute is valid, Teresa's action was barred and was properly dismissed by the trial court. Plaintiff argued in the court of appeals that the statute of limitation as applied to minors (if the injury occurred before the minor was seven years of age, then the action is barred after the minor reaches the age of ten) was a denial of equal protection because the state could demonstrate no compelling interest to support the curtailment of the right to bring the action when no other tort claimant was placed under such a disability. Defendants replied that the rational basis test was applicable and attached an extensive legislative history to demonstrate the rational basis of the legislature's decision. The court of appeals affirmed, concluding that "the In Kenyon v. Hammer, supra, we recently held that the right to bring a common law action for negligence was guaranteed under article 18, § 6 of the Arizona Constitution. We concluded, therefore, that the rational basis test was not the appropriate level of scrutiny. (142 Ariz. at 83-4, 688 P.2d at 975-76.) Given the decision in Kenyon, there is considerable doubt as to the viability of the rationale employed by the court of appeals in deciding the case at bench. However, we need not reach that question since we resolve the case upon a basis requiring a less convoluted analysis than that necessary for disposition of the equal protection issue.

                legally imposed status of minority [was] not a suspect classification meriting strict judicial scrutiny" and that "the rational basis test [was] the appropriate standard for reviewing the constitutionality of A.R.S. § 12-564(D)."  (142 Ariz. at ---, 688 P.2d at 964-65.)   The court therefore found that the statute under consideration did not violate the equal privileges and immunities provision of art. 2, § 13 of the Arizona Constitution or the equal protection provision of the fourteenth amendment of the United States Constitution
                

THE ISSUE

In actions against licensed health care providers, A.R.S. § 12-564(D) requires that a minor injured under the age of seven years bring his or her action for damages before reaching age ten; it expressly excludes the provisions of A.R.S. § 12-502, which, in all other actions tolls the running of a statute of limitations during a minor's disability. Plaintiff argues that these provisions of § 12-564(D) are void under article 18, § 6, which provides as follows:

The right of action to recover damages for injury shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.

We note that plaintiff did not advance this argument either to the trial court or the court of appeals until the motion for rehearing. Defendants argue that we should not consider issues not raised in the trial court. Generally, this is correct, but a well recognized exception to that rule exists when the question is an issue of "general statewide significance." Ruth v. Industrial Commission, 107 Ariz. 572, 574, 490 P.2d 828, 830 (1971) (considering the validity of A.R.S. § 23-1023 under article 18, § 6, of the Arizona Constitution when the issue had not been raised before the trial court or the court of appeals). Nor is the issue one that turns upon disputed evidence. There is no necessity in this case for a trial judge to determine facts. We believe that the constitutional issue in the case at bench is sufficiently important that it should be considered even though not raised in the trial court. We therefore allowed the parties to direct supplemental briefs and oral arguments to the issue. We now turn to the merits.

Article 18, § 6, prohibits "abrogation." If the statute of limitations in question effectively abrogates the damage action, it is invalid under the constitution. Kenyon v. Hammer, supra, 142 Ariz. at 74, 688 P.2d at 966; id. at 88, 688 P.2d at 980 (Hays, J., concurring). On the other hand, if § 12-564(D) merely "regulates" the time to bring the action, then article 18, § 6 would not be offended because the legislature has the power to set reasonable limits on the time in which to exercise the right guaranteed by the constitutional provision. Kenyon, supra, 142 Ariz. at 87, 688 P.2d at 979; Rutledge v. State, 100 Ariz. 174, 180, 412 P.2d 467, 472 (1966).

We must therefore determine whether we are dealing in this case with abrogation or regulation. In so doing, however, we must bear in mind that we have recently recognized that a cause of action to recover damages for negligence is a "fundamental right" guaranteed by article 18, § 6. Kenyon, supra, 142 Ariz. at 83-4, 688 P.2d at 975-76; id. at 88, 688 P.2d at 980 (Hays, J., concurring).

REGULATION OR ABROGATION

Some states, particularly those which do not view the common law action for negligence as a fundamental right, have considered statutes of limitation and repose that bar minors' claims and have found that such statutes do not offend guarantees of due process or equal protection. See, e.g., Johns v. Wynnewood School Board of Education, 656 P.2d 248, 249 (Okl.1982); Licano v. Krausnick, 663 P.2d 1066, 1068 (Colo.App.1983); DeSantis v. Yaw, 290 Pa.Super. 535, 434 A.2d 1273 (1981) (upholding limitation statute that barred minor's action for automobile injuries on the authority of the Pennsylvania Supreme Court's decision in Von Colln v. Pennsylvania Railroad Co., 367 Pa. 232, 80 A.2d 83 (1951), but criticizing the rule)

The DeSantis court noted the various salutary objectives to be gained by strict application of the statute of limitations. These include...