Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 2

• Citation: 692 P.2d 290,143 Ariz. 111
• Decision Date: 13 June 1983
• Docket Number: CA-CIV,No. 2,2
• 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. 4651.
• Court: Court of Appeals of Arizona

Page 290

692 P.2d 290

143 Ariz. 111

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. 2 CA-CIV 4651.

Court of Appeals of Arizona, Division 2.

June 13, 1983.

Haralson, Kinerk & Morey, P.C. by Burton J. Kinerk and William H. Ricker, Tucson, for plaintiff/appellant.

Robbins & Green, P.A. by Richard W. Abbuhl and Brian Imbornoni, Phoenix, for defendants/appellees.

OPINION

HOWARD, Chief Judge.

The issue in this case is whether A.R.S. § 12-564(D), which requires children between the ages of 7 and 18 to institute their medical malpractice claims within the same period of time as adults, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Privileges and Immunities Clause of the Arizona Constitution. On February 11, 1982, plaintiff/appellant Teresa V. Barrio filed a medical malpractice action against 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. Appellant alleged in her complaint that she was born on April 8, 1962, at the San Manuel Division Hospital for Magma Copper Company. She further alleged that the medical care rendered by Drs. Findlay and Brodar in connection with her birth caused her serious and permanent injuries. Liability on the part of San Manuel Hospital for Magma Copper Company is predicated upon the theory of respondeat superior.

Defendants/appellees filed a motion for summary judgment on the ground that appellant's claim was barred by A.R.S. § 12-564. A.R.S. § 12-564(D) requires children between the ages of 7 and 18 to institute their medical malpractice claims within the same period of time as adults, which is three years in the case of malpractice actions. A.R.S. § 12-564(A). Because § 12-564 became effective on February 27, 1976, appellant was given, pursuant to A.R.S. § 12-505(C), until February 27, 1977, in which to file her claim for malpractice. Since she did not do so, the court granted appellee's motion for summary judgment.

Appellant has three contentions: (1) That infants should be regarded as a "suspect class", thus requiring the application of the strict scrutiny test to determine whether a compelling state interest mandated the passage of A.R.S. § 12-564(D); (2) that if the strict scrutiny test is not applicable, the court should apply an intermediate level of scrutiny--that the statute must have a significant relationship to the purposes which the statute serves, and (3) that in any event, A.R.S. § 12-564(D) does not meet the "rational basis" test. We do not agree and affirm.

Appellant contends that children are a suspect class requiring application of the "strict scrutiny" test to determine whether there was a compelling state interest which mandated the passage of A.R.S. § 12-564(D). We do not agree. The concern of equal protection analysis is the classification of individuals or "legislative line drawing." J. Nowak, R. Rotunda & J. Young, Handbook on Constitutional Law 519 (1978). As a general rule, a state is not prohibited upon constitutional grounds from making classifications of persons and things or from passing laws which apply only to persons within a designated class, provided the classification is neither arbitrary nor unreasonable. Landgraff v. Wagner, 26 Ariz.App. 49, 546 P.2d 26 (1976), appeal dismissed, 429 U.S. 806, 97 S.Ct. 40, 50 L.Ed.2d 67. This is generally known as the rational basis test. Under this standard, the propriety of any classification is for the legislature. It will not be invalidated by the courts unless it is "whimsical, capricious, arbitrary or without reason." Landgraff v. Wagner, supra.

In sharp contrast to the rational basis test is review under the strict scrutiny standard. Equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Under strict scrutiny analysis, a legislative classification will be upheld by the courts only if it is found to be necessary to promote a compelling or overriding state interest. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

It is well established that classifications based upon age are not subject to strict scrutiny. Massachusetts Board of Retirement v. Murgia, supra, (mandatory retirement of police officers of age 50); Trafelet v. Thompson, 594 F.2d 623 (7th Cir.1979), cert. den., 444 U.S. 906, 100 S.Ct. 219, 62 L.Ed.2d 142 (mandatory retirement of judges upon first general election after age 70); Johnson v. Lefkowitz, 566 F.2d 866 (2nd Cir.1977), cert. den., 440 U.S. 945, 99 S.Ct. 1421, 59 L.Ed.2d 633 (mandatory retirement of tenured civil service employees at age 70).

It is further established that age classifications involving minors do not require review under the strict scrutiny standard. For example, in Johnson v. City of Opelousas, 488 F.Supp. 433 (W.D.La.1980), rev. on other grounds, 658 F.2d 1065 (5th Cir.1981), an action was brought challenging the City of Opelousas' juvenile curfew ordinance. After discussing the appropriate standard of review the court held: "Unlike a classification based upon race, alienage and natural origin which are inherently suspect, age is not a suspect classification." 488 F.Supp. at 440. Similarly, in Felix v. Milliken, 463 F.Supp. 1360 (E.D.Mich.1978), actions were brought challenging a state constitutional amendment which raised the drinking age. After reviewing the history of equal protection analysis and various United States Supreme Court decisions involving minors, the court concluded:

"What the immediately foregoing cases clearly establish is that age, especially at the lower end of the spectrum, is not a suspect classification nor does it seem to possess any of the traits often associated with suspect classes." 463 F.Supp. at 1374.

See also White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979) (statute forbidding children under 12 from living on premises); State v. Elam, 302 N.C. 157, 273 S.E.2d 661 (1981) (statute prohibiting the taking of indecent liberties with a minor based upon age classifications); People v. Dozier, 72 App.Div.2d 478, 424 N.Y.S.2d 1010 (1980), aff'd, 52 N.Y.2d 781, 417 N.E.2d 1008, 436 N.Y.S.2d 620 (statutory rape law).

In the case of Rohrabaugh v. Wagoner, 274 Ind. 661, 413 N.E.2d 891 (1980), the Supreme Court of Indiana was faced with an equal protection challenge to an Indiana statute almost identical in operation to ours. The Indiana statute, in contrast to A.R.S. § 12-564(D), requires children between the ages of 6 and 21 to institute their medical malpractice claims within the same period of time as adults. The court held that the proper standard of review was the rational basis test. The court explained its decision as follows:

"The class identified by appellant as suspect is comprised of children from the ages of six through eighteen. Generally, defining a class by age does not call for strict judicial scrutiny. Massachusetts Bd. of Retirement v. Murgia, (1976) 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520. ... Illegitimate children are indeed a suspect class. Levy v. Louisiana, (1968) 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436. Unlike illegitimacy, childhood is a stage out of which millions of persons inevitably pass in an unending flow, day after day. Children become adults and are empowered. The laws respecting children have in the main in recent years been based upon the premise that children are undergoing physical and psychological growth and during this process they are limited in their capacity for making those evaluations thought necessary to full participation in the political, economic, and social life of the community. As in the case of the elderly, the legal treatment of children has not been free of discrimination; however, the disparate treatment accorded children has been based in recent times upon knowledge of the process of growth, a process to which all human beings are subject. Consequently, we conclude that the class newly subject to this two year statute of limitation, children between the ages of six and twenty-one, is not suspect, thereby calling for strict judicial scrutiny. Rationality is therefore the standard by which to judge this classification." 413 N.E.2d at 893-94.

We hold that the legally imposed status of minority is not a suspect classification meriting strict judicial scrutiny. Therefore, as to the age classification of A.R.S. § 12-564(D), the rational basis test is the appropriate standard of review. See Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977), (rational basis test is appropriate standard to review a claim that requiring the submission of claims to a medical liability review panel and the abolition of the collateral source rule were unconstitutional); Landgraff v. Wagner, supra, (rational basis test is the appropriate standard by which to review Arizona medical malpractice statute of limitations).

Some members of the United States Supreme Court as well as some legal commentators contend that between the two extremes of equal protection scrutiny lies a middle tier of judicial review. Felix v. Milliken, supra, at 1368. Under an intermediate level of review, the courts demand that a classification bear a fair and substantial relation to the object of the legislation. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). The United States Supreme Court has invoked this...