Abernethy v. Smith

• Decision Date: 13 June 1972
• Docket Number: No. 1,CA-CIV,1
• Citation: 498 P.2d 175,17 Ariz.App. 363
• Parties: John R. ABERNETHY and Barbara Abernethy, husband and wife, Appellants, v. Noel G. SMITH and Jane Doe Smith, husband and wife, et al., Appellees. 1778.
• Court: Arizona Court of Appeals

Page 175

498 P.2d 175

17 Ariz.App. 363

John R. ABERNETHY and Barbara Abernethy, husband and wife, Appellants, v. Noel G. SMITH and Jane Doe Smith, husband and wife, et al., Appellees.

No. 1 CA-CIV 1778.

Court of Appeals of Arizona, Division 1, Department A.

June 13, 1972.

Rehearing Denied July 12, 1972.

Review Denied Sept. 19, 1972.

John R. Abernethy, in pro. per.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Robert G. Beshears, Phoenix, for appellees Smith and Brewer.

Snell & Wilmer, by Loren W. Counce, Jr., Phoenix, for appellees Mertz.

CASE, Judge.

Plaintiffs filed suit on 18 November 1970 in the Superior Court of Maricopa County against defendants, all duly licensed physicians, alleging medical malpractice, breach of contract and defendants' wrongful abandonment of plaintiff-husband as a patient. The trial judge granted defendants' motions for summary judgment upon the ground that the suit was barred by the statute of limitations and upon the further ground that plaintiffs were unable to present any competent evidence which would show that any of the defendants had deviated from the standard of practice in the community. It is from this judgment that the appeal herein is taken. The parties will be referred to herein as they appeared in the trial court.

The facts giving rise to this litigation are as follows:

The defendants, Drs. Noel G. Smith and Edward A. Brewer, as partners engaged in the practice of family medicine, provided the plaintiff-husband with complete medical and surgical treatment from 1959 to 6 September 1969. The only additional medical or surgical services rendered him during the above period were performed by Dr. Neil C. Alden and defendant Dr George H. Mertz. The defendants do not controvert plaintiffs' allegation that the services of Dr. Alden and Dr. Mertz were recommended and obtained through the initiative of defendants, Drs. Smith and Brewer.

Dr. Smith diagnosed a right inguinal hernia in plaintiff-husband and surgical repair was accomplished on 8 March 1966. The operation was thought to be a success and after a recovery period, he returned to work and carried on his normal activities.

A recurrence of the right inguinal hernia was diagnosed by Dr. Smith on 19 August 1966. He advised the plaintiff that this recurrence was due to weak tissue. On 17 September 1966 plaintiff was readmitted to Good Samaritan Hospital for the hernia repair. The surgery and post-operative care were performed by Dr. Smith with assistance from Dr. Alden. After a period of recuperation, plaintiff again returned to work and normal activities.

In December 1966 Dr. Smith again diagnosed a recurrence of the right inguinal hernia and arranged for an examination of the plaintiff by Dr. Mertz. An examination was conducted and after a consultation, Drs. Mertz and Smith advised plaintiff that a right orchiectomy would have to be performed before the right inguinal hernia could be permanently repaired. As a result of the examination, Dr. Mertz also diagnosed the presence of a left inguinal hernia.

The consent of both plaintiffs was requested before Drs. Mertz and Smith would perform the right orchiectomy and repair of the left and right inguinal hernias. The plaintiffs were fully apprised of the fact that the right orchiectomy might result in permanent sterilization. On 8 January 1967 the plaintiff was again admitted to Good Samaritan Hospital. Repair to the left inguinal hernia was completed the next day and the operation to repair the right inguinal hernia was performed nine days later during a continuous period of hospitalization. Both surgeries were performed by Drs. Smith and Mertz. The right orchiectomy was not performed. Thereafter, following a period of recuperation, the plaintiff was advised that he could again return to normal activities.

An additional recurrence of the right inguinal hernia was diagnosed by Dr. Smith in December 1968. There was no attempt at this time to effect surgical repair. In September 1969, following complaints by plaintiff of continuing pain, an examination was conducted by Drs. Smith and Mertz. The plaintiff was again advised that a right orchiectomy was necessary before repair to the right inguinal hernia could be perfected. No surgical procedures were administered and the record indicates that plaintiff was discharged as a patient by Drs. Smith and Mertz on 6 September 1969.

Thereafter, plaintiff sought and received medical advice from another surgeon who recommended the performance of a right orchiectomy prior to hernia repair. During the same examination, the surgeon diagnosed a diabetic condition. The right orchiectomy and right inguinal hernia repair were performed on 29 October 1969. The record indicates that plaintiff has had no recurrence of right or left inguinal hernia since the October 1969 surgery.

The first question we are confronted with is raised by defendants, Drs. Smith and Brewer. It is their contention that the instant appeal should be dismissed without further consideration. They urge that plaintiffs failed to follow express procedural rules in the processing of this appeal. We do not agree.

The pertinent section of the Arizona Rules of Civil Procedure, Rule 73(s), 16 A.R.S., entitled 'Transmitting Record on Appeal', states:

'The record on appeal as provided for in Rules 75 and 76 shall be Transmitted to the supreme court within forty days from the date of perfecting the appeal, except that, when more than one appeal is taken from the same judgment, the superior court may prescribe the time for transmitting, which in no event shall be less than forty days from the date of perfecting the first appeal. In all cases the superior court in its discretion and with or without motion or notice may extend the time for transmitting the record on appeal, if its order for extension is made before the expiration of the period for transmitting as originally prescribed or as extended by a previous order, but the superior court shall not extend the time to a day more than ninety days from the date of perfecting the first appeal.' (emphasis added)

17 A.R.S., Rules of the Supreme Court, Rule 3(a)(2) states:

'If an enlargement of time is desired under Rules of Civil Procedure, Rule 73(s), appellant shall obtain an order therefor before the expiration of the period originally prescribed or as extended by a previous order, but such extension shall not be to a day more than ninety days from the date of the first notice of appeal.'

The abstract of record indicates that the notice of appeal in this case was filed on 2 June 1971 and, thereafter, on 12 July 1971 the trial judge ordered that the plaintiffs be given an extension of time until 15 July 1971 to Transmit their record on appeal. The order reads as follows:

'It is ordered extending time for filing reporter's transcript and Transmitting record on appeal to and including July 15, 1971.' (emphasis added)

The defendants strongly urge that the plaintiffs were in violation of the trial court's order because the record on appeal was not Filed until 13 August 1971. The fallacy in defendants' argument is that they use the words 'filed' and 'transmitted' synonymously and, in addition, make no reference to a letter from the Clerk of the Court of Appeals dated 15 July 1971 which states in part:

'The Record on Appeal was Received by this office on today, July 15, 1971.' (emphasis added)

It is our opinion that the word 'transmitted' in Rule 73(s), and the word 'transmitting' in the judge's order of 12 July 1971 are not synonymous with the words 'filed' or 'filing.' The record on appeal was transmitted to and received by the Court of Appeals on 15 July 1971, as evidenced by the Clerk's letter of 15 July 1971. It is obvious that the requirements of the law and the judge's order were followed.

The defendants go on to recite authorities for dismissal of appeals where procedures for appeals are not followed. Having decided that the proper procedures were followed by the plaintiffs, we see no reason to discuss the merits of the penalties that might be invoked where the proper procedure is not followed.

The second question presented on appeal is whether the trial court correctly granted the defendants' motions for summary judgment on 29 March 1971.

Two separate issues must be resolved before we can make a determination of the general question. The initial issue simply stated is whether the plaintiffs' action, filed 18 November 1970, is, as a matter of law, barred by the statute of limitations.

At the time plaintiffs commenced the instant litigation, the controlling statute was A.R.S. § 12--542 which states:

'Injury to person; injury when death ensues; injury to property; conversion of property; forcible entry and forcible detainer; two year limitation

'There shall be commenced and prosecuted within two years after the cause of action accrues, and not afterward, the following actions:

'1. For injuries done to the person of another.

'2. For injuries done to the person of another when death ensues from such injuries, which action shall be considered as accruing at the death of the party injured.

'3. For trespass for injury done to the estate or the property of another.

'4. For taking or carrying away the goods and chattels of another.

'5. For detaining the personal property of another and for converting such property to one's own use.

'6. For forcible entry or forcible detainer, which action shall be considered as accruing at the commencement of the forcible entry or detainer.'

In applying the law to the case at bar, there must be a determination of when the plaintiffs' cause of action accrued. There has been much controversy over the interpretation of A.R.S. § 12--542 and specifically the definition of 'accrues.' A most recent interpretation of legislative intent regarding the term 'accrues' is set forth in Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 482 P.2d 497 (1971). In Mayer, a...