Allen v. Fisher

• Citation: 574 P.2d 1314,118 Ariz. 95
• Decision Date: 06 December 1977
• Docket Number: CA-CIV,No. 2,2
• Parties: Howard L. ALLEN, Petitioner, v. Lillian S. FISHER, Judge of the Pima County Superior Court, and CharlesHarter, M.D., real party in interest, Respondents. 2739.
• Court: Arizona Court of Appeals

Page 1314

574 P.2d 1314

118 Ariz. 95

Howard L. ALLEN, Petitioner, v. Lillian S. FISHER, Judge of the Pima County Superior Court, and CharlesHarter, M.D., real party in interest, Respondents.

No. 2 CA-CIV 2739.

Court of Appeals of Arizona, Division 2.

Dec. 6, 1977.

Rehearing Denied Jan. 17, 1978.

Review Denied Feb. 7, 1978.

Davis, Eppstein & Tretschok, P. C. by Thomas J. Davis, Tucson, for petitioner.

Chandler, Tullar, Udall & Redhair by Jack Redhair, Tucson, for respondent Charles Harter, M.D.

OPINION

HATHAWAY, Judge.

An order of the respondent court referring petitioner's pending lawsuit against a doctor to a medical liability review panel is the subject of this special action. Since we agree with petitioner that appellate intervention is appropriate, we assume jurisdiction.

Briefly, the procedural chronology is as follows. Petitioners filed suit in superior court on February 24, 1976, against real party in interest Charles Harter, M.D., alleging the doctor's malpractice. On September 7, 1977, Dr. Harter filed a motion for an order referring the complaint to the medical liability review panel. ¹ The respondent court granted the motion of Dr. Harter on October 5, 1977.

The sole issue presented here is whether petitioner's claim for medical malpractice against Dr. Harter, filed before the effective date of A.R.S. §§ 12-561 to 12-569 is subject to those statutory provisions. ² Thus the question becomes Can these statutes be applied to an action pending at the time the statutes became effective? Our answer to this question is in the negative.

It is well established that a statute will have prospective operation only unless it appears that it was intended to have retroactive effect. Stanley v. Stanley, 112 Ariz. 282, 541 P.2d 382 (1975). We find nothing in the new legislation indicating a legislative intent that it was to have retroactive effect. However, statutory changes in procedure or remedies may be applied to proceedings already pending except where the statute affects or impairs vested rights. Merchants Despatch Transportation Corporation v. Arizona State Tax Commission, 20 Ariz.App. 276, 512 P.2d 39 (1973); In re Dos Cabezas Power District (Johnson v. Arizona Public Service Company), 17 Ariz.App. 414, 498 P.2d 488 (1972); Bade v. Drachman, 4 Ariz.App. 55, 417 P.2d 689 (1966).

Litigants do not have a vested right in any given mode of procedure, Denver and Rio Grande Western Railroad Company v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954 (1967), and a statute relating solely to procedural law such as burden of proof and rules of evidence can be applied retroactively. United Securities Corporation v. Bruton, 213 A.2d 892 (D.C.App.1965). However, where the new rule is one of substantive law, it cannot be applied retroactively. Gem Corrugated Box Corporation v. National Kraft Container Corporation, 427 F.2d 499 (2nd Cir. 1970); Eskimo Pie Corporation v. Whitelawn Dairies, Inc., 284 F.Supp. 987 (S.D.N.Y.1968); In re Giordano's Estate, 85 Cal.App.2d 588, 193 P.2d 771 (1948).

While there is no precise definition of either term, it is generally agreed that a substantive law creates, defines and regulates rights while a procedural one prescribes the method of enforcing such rights or obtaining redress. Romano v. B. B. Greenberg Co., 108 R.I. 132, 273 A.2d 315 (1971); Ware v. City of Anchorage, 439 P.2d 793 (Alaska 1968). We are of the opinion that at least in one respect the new legislation affected a substantive right and therefore cannot apply to petitioner's claim against Dr. Harter. A.R.S. § 12-565 provides in part:

"A. In any medical malpractice action against a licensed health care provider, the defendant may introduce evidence of any amount or other benefit which is or will be payable as a benefit to the plaintiff as a result of the injury or death pursuant to the United States Social Security Act, any state or federal workmen's compensation act, any disability, health, sickness, life, income-disability or accident insurance that provides health benefits or income-disability coverage and any other contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of income-disability or medical, hospital, dental or other health care services to establish that any cost, expense, or loss claimed by the plaintiff as a result of the injury or death is subject to reimbursement or indemnification from such collateral sources. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any such benefits or that recovery from the defendant is subject to a lien or that a provider of such collateral benefits has a statutory right of recovery against the plaintiff as reimbursement for such benefits or that the provider of such benefits has a right of subrogation to the rights of the plaintiff in the medical malpractice action.

B. Evidence introduced pursuant to this section shall be admissible for the purpose of considering the damages claimed by the plaintiff and shall be accorded such weight as the trier of the facts chooses to give it."

The collateral source rule is a well-established rule in the law of damages and is an established exception to the general rule that damages in negligence actions must be compensatory. 25 C.J.S. Damages § 99(1). See also, Riexinger v. Ashton Company, 9 Ariz.App. 406, 453 P.2d 235 (1969). In ...