Howard Frank, M.D., P.C. v. Superior Court of State of Ariz., In and For Maricopa County

Citation150 Ariz. 228,722 P.2d 955
Decision Date28 July 1986
Docket NumberNo. 18525-SA,18525-SA
PartiesHOWARD FRANK, M.D., P.C., an Arizona corporation; Howard Frank, M.D., an individual, Petitioner, v. SUPERIOR COURT OF the STATE OF ARIZONA, In and For the COUNTY OF MARICOPA, and the Honorable John Sticht, Judge of the Superior Court of Arizona, and Emily Hathaway and Roland Lee Hathaway, wife and husband, Respondents.
CourtSupreme Court of Arizona

Teilborg, Sanders & Parks, P.C. by Frank A. Parks, Brian R. Burt, Phoenix, for petitioner.

Leonard and Clancy, P.C. by James J. Leonard, Jr., Phoenix, for respondents Hathaway.

GORDON, Vice Chief Justice.

This Petition for Special Action raises the issue of whether parents may maintain a cause of action for loss of consortium against a third party who negligently injures their adult child. The petition was brought by Howard Frank, M.D., who claims that the respondent judge erred by denying a motion for summary judgment in the underlying tort action. We have jurisdiction pursuant to Arizona Const. art. 6 § 5(1), and Ariz.R.Sp.Act. 4, 17A A.R.S.

The real parties in interest are Emily and Roland Lee Hathaway, parents of Marilyn Hathaway, an adult. In 1983 Marilyn Hathaway sued petitioner, alleging that his negligent administration of anesthesia during surgery had caused her severe brain damage. Following a jury trial, Marilyn was awarded damages of $5 million. The trial court granted petitioner a new trial after Marilyn refused a remittitur to $3.1 million. Both parties have appealed from that judgment.

On March 7, 1985, Emily and Roland Lee Hathaway filed a separate lawsuit, alleging that as a result of petitioner's negligence they have been deprived of their daughter's love, companionship, comfort, affection, society, solace, and moral support, and requesting damages to compensate them for the loss of consortium of their only child.

On April 22, 1985, petitioner moved to dismiss the complaint on the ground that Arizona does not recognize a cause of action for loss of consortium of an adult child. The respondent judge denied the motion on August 12, 1985, relying upon Reben v. Ely, 146 Ariz. 309, 705 P.2d 1360 (App.1985) (review denied Sept. 4, 1985), which recognized for the first time a cause of action for loss of consortium of a minor child. The petitioner now seeks an order from this Court requiring the respondent judge to grant the motion for summary judgment.

The petition raises a legal issue of statewide importance which is a matter of first impression in Arizona. We therefore felt it would be appropriate to accept jurisdiction in order to decide whether a cause of action exists for loss of consortium of an adult child and thereby determine whether the respondent judge failed "to perform a duty required by law as to which he has no discretion" or acted "in excess of [his] ... legal authority...." Ariz.R.Sp.Act. 3(a) and (b), 17A A.R.S.


The starting point of our discussion must be Reben v. Ely, supra. In Reben a ten-year-old child was administered a dosage of liquid cocaine, mistakenly thought to be liquid Tylenol. The result was severe and permanent brain damage. In addition to the award to the child's estate, his parents were awarded $500,000 for past and future services of their son and $1 million for loss of consortium, described in their complaint as "the loss of his love, society, companionship, and the right of every parent to have the society and companionship of a normal child free from injury caused by the wrongful conduct of another." 146 Ariz. at 310, 705 P.2d at 1361. 1 The defendants challenged the award of consortium damages, asserting that Arizona did not recognize a cause of action for loss of filial consortium. The court of appeals disagreed. After analyzing Arizona's wrongful death statute, A.R.S. § 12-613, which has been interpreted to allow for consortium damages, the court concluded that "[w]e are unable to justify denial of an award in such circumstances when only the bare fact of the child's existence distinguishes this from a wrongful death case." 146 Ariz. at 312, 705 P.2d at 1363. Thus Arizona has joined those jurisdictions which allow recovery for loss of filial consortium of a minor child where the child has been severely injured by the negligence of a third party. 2

In both Reben v. Ely and the present case the defendants raised a host of policy arguments against recognizing claims for loss of filial consortium. They boil down to these: that the loss is intangible and cannot be compensated by money, that damages will necessarily be speculative, that the defendant is exposed to liability out of proportion to the negligent act, and that the family may reap a double recovery. These arguments were raised in the past when we were called upon to value consortium, and as a brief examination of Arizona legal history will confirm, the arguments against compensating family members for loss of consortium were lost not today, or in Reben, but during the past two decades. 3

In Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723 (1954), this Court denied a wife's claim for loss of spousal consortium on the ground that "[t]he common law is and always has been that the wife has no such cause of action." 77 Ariz. at 226, 269 P.2d at 723. However, in City of Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972), that portion of the Jeune case denying the right of consortium to the wife was specifically overruled. Our decisions interpreting the breadth of damages available under the wrongful death statute, A.R.S. § 12-613, are equally significant. 4 Beginning in 1965 this Court held that "[t]he measure of damages is no longer limited to pecuniary damages, but also includes allowance for such things as loss of companionship, comfort, and guidance." Boies v. Cole, 99 Ariz. 198, 203, 407 P.2d 917, 920 (1965). 5 The wrongful death statute has been liberally construed to allow damages for "intangible[s] as to which there can be no unanimity of opinion[,]" State v. Watson, 7 Ariz.App. 81, 87, 436 P.2d 175, 181 (1968), including "anguish, sorrow, stress, mental suffering, pain and shock...." City of Tucson v. Wondergem, 105 Ariz. 429, 433, 466 P.2d 383, 387 (1970). In sum, we have not hesitated to assign a monetary value to the elements of consortium--society, companionship, care, support, and affection, to name a few--even in the most difficult cases. See, e.g., Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985) (parents may maintain loss of consortium action in wrongful death of viable fetus); University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983) (pecuniary damages in "wrongful pregnancy" action may be offset by intangible value of child's consortium). As always, "[w]e are confident that the inherent good sense of the jury is the best safeguard to 'runaway' verdicts and unfounded speculation in the award of damages." University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. at 585, 667 P.2d at 1300.

It is apparent from the foregoing discussion that the award of consortium damages is a well-established remedy in Arizona for negligent injury to family relations. Thus the court of appeals' decision in Reben to allow an award of consortium damages was not particularly novel. What was unusual about Reben was the decision to extend the loss of consortium action beyond wrongful death, where it is well-established, to negligent injury. The cases in which we approved recovery for loss of consortium, e.g. Boies v. Cole, supra; State v. Watson, supra; City of Tucson v. Wondergem, supra; and Summerfield v. Superior Court, supra, involved a wrongful death. The significance of Reben v. Ely was the court of appeals' decision that no meaningful distinction can be drawn between death and severe injury where the effect on consortium is concerned.

Often death is separated from severe injury by mere fortuity; and it would be anomalous to distinguish between the two when the quality of consortium is negatively affected by both.

"It is easy to see that the loss of a child through his death takes from his parents the society and companionship that is the essence of the lost relationship. But consider the magnitude of the loss of society and companionship that occurs when a normal [child] is suddenly reduced to a blind, nearly deaf, partially paralyzed child with a mental age of three. The parental expectations for the continuation of the family relationship are the same in either case. That the parents still have their son to love and care for is a factor to consider in determining the extent of their loss, but does not negate the loss. They have sustained a genuine loss in the nature of the society and companionship they can anticipate receiving from their son as a consequence of his injuries.

Perhaps the loss of companionship and society experienced by the parents of a child permanently and severely injured ... is in some ways even greater than that suffered by parents of a deceased child. Not only has the normal family relationship been destroyed, as when a child dies, but the parent also is confronted with his loss each time he is with his child and experiences again the child's diminished capacity to give comfort, society, and companionship."

Note, The Parental Claim for Loss of Society and Companionship Resulting From the Negligent Injury of a Child: A Proposal for Arizona, 1980 Ariz.St.L.J. 909, 923.

Arizona is not alone in recognizing that severe injury may have just as deleterious an impact on filial consortium as death. See n. 1, supra. However, Reben v. Ely, like similar cases from other jurisdictions, dealt with injury to a minor child. In Reben the court allowed parents to seek recovery "where the damage to the child is so great as to likewise deprive the parents of the companionship, comfort, love, and society to be reasonably expected from the child during his minority. " 146...

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