James v. Phoenix General Hosp., Inc., s. CV

Decision Date01 October 1987
Docket NumberNos. CV,s. CV
Citation154 Ariz. 594,744 P.2d 695
CourtArizona Supreme Court
PartiesMildred JAMES, the surviving spouse of Maurice James, deceased, on her own Behalf and for and on Behalf of Linda Bell, Ronald James, and Gerald V. James, the surviving children of Maurice James, Plaintiffs-Appellants, v. PHOENIX GENERAL HOSPITAL, INC., an Arizona corporation; Osteopathic Surgeons, Ltd., an Arizona corporation; Robert Ostwinkle, Defendants- Appellees. Rafaela PARICH, the surviving spouse of Richard M. Parich, on her own Behalf and for and on Behalf of Norma Parich Valenzuela, Mary Ann Parich Mendez, Richard M. Parich, Jr., and Mark Parich, the surviving children of Richard M. Parich, Plaintiffs-Appellants, v. SAMARITAN HEALTH SERVICES, INC., an Arizona corporation, d/b/a Good Samaritan Medical Center; Surgical Specialists, P.C., an Arizona corporation; Stevenson, Cryan & Church, a business entity; Scottsdale Medical Imaging, Ltd., an Arizona corporation; George A. Streza; Donald A. Cryan; Richard M. Spiegel; and Does I Through XXX, Defendants- Appellees. 86-0535-PR, CV 86-0543-PR.

Leonard and Clancy, P.C. by Kenneth P. Clancy, Phoenix, for plaintiffs-appellants James and Parich.

Fennemore, Craig, von Ammon, Udall & Powers, P.C. by Timothy Berg, Roger C. Mitten and J. Gregory Osborne, Phoenix, for defendant-appellee Phoenix General Hosp.

Weyl, Guyer, MacBan & Olson, P.A. by Thomas G. Bakker, Duane A. Olson, Robert H. Kleinschmidt, Phoenix, for defendants-appellees Osteopathic Surgeons, Ostwinkle, Samaritan Health Services and Cryan.

Snell & Wilmer by Lawrence F. Winthrop, Phoenix, for defendant-appellee Surgical Specialists.

Jennings, Strouss & Salmon by Jefferson L. Lankford, Gary L. Stuart and Kevin J. Worthen, Phoenix, for defendants-appellees Scottsdale Medical Imaging, Streza, Spiegel and Does.

CAMERON, Justice.


In two separate cases, the plaintiffs have petitioned for review of court of appeals' decisions affirming the award of summary judgment for the defendant health-care providers. James v. Phoenix General Hospital, 154 Ariz. 588, 744 P.2d 689 (App.1986); Parich v. Samaritan Health Services, Inc., No. 1 CA-CIV 8440 (Sept. 2, 1986) (memo. decision). We consolidated the two cases for purposes of review. We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and Ariz. R.Civ.App. P., 17A A.R.S.


We must decide which statute of limitations is applicable in wrongful death actions based on medical malpractice and when the actions accrue. The operative facts of both claims are brief and undisputed.

A. James Wrongful Death Claim

On 28 July 1978, Maurice James underwent gallbladder surgery performed by Dr. Robert Ostwinkle, at Phoenix General Hospital. After the operation both the surgeon and the admitting physician, Dr. Kasovac, told Mr. and Mrs. James that the surgery was complicated by intraoperative bleeding, that Mr. James' common duct had been compromised and that it would have to be repaired.

Ten days after being discharged from the hospital, Mr. James was readmitted with a diagnosis of partial common duct obstruction and abscess at the bile drainage site. He was treated and, one month later, discharged. On 31 January 1981, approximately 2 1/2 years after the surgery, Mr. James died. His death allegedly was causally related to the 1978 surgery.

On 1 November 1983, Mr. James' survivors (petitioners) filed this wrongful death action, alleging that Dr. Ostwinkle had performed the surgery negligently, injuring Mr. James and thereby causing his death. Petitioners also alleged that Phoenix General Hospital was liable because it "knew or should have known that Defendant Robert Ostwinkle was not competent to conduct the surgical case of Maurice James." All defendants moved for summary judgment on the grounds that the action was barred under the three-year medical malpractice statute of limitation imposed by A.R.S. § 12-564(A). Phoenix General Hospital moved for summary judgment on the independent grounds that petitioners were unable to produce expert witness testimony concerning the standard of care to which a hospital must conform in extending staff privileges to surgeons. The trial court entered summary judgment in favor of all defendants.

B. Parich Wrongful Death Claim

Richard Parich was admitted on 11 October 1980 to the emergency room of Good Samaritan Hospital for injuries sustained in an automobile accident. On 13 October 1980, Dr. Richard Spiegel performed an "upper GI series" on Mr. Parich, using the element barium as a contrast medium.

On 15 October 1980, Dr. George Streza performed surgery on Mr. Parich, at which time it was discovered that he was suffering from massive barium peritonitis, allegedly caused by the escape of barium from the GI tract into the abdominal cavity. As a result of the peritonitis, Mr. Parich developed extensive systemic infection and multi-organ failure. Mr. Parich remained comatose after the surgery and died on 15 November 1980 from complications related to the infection and organ failure. Mr. Parich was survived by his spouse, Rafaela Parich, and by his four children (petitioners).

The petitioners filed this wrongful death action on 1 November 1983, alleging that the defendants were negligent in their medical treatment of Mr. Parich and thereby proximately caused his death. The defendants moved for summary judgment on grounds that, under the three-year medical malpractice limitation in A.R.S. § 12-564(A), the complaint was not timely filed. The defendants alleged that the cause of action accrued on the date of injury--in this case, 15 October 1980--and that it was extinguished by statute on the same date in 1983, or approximately two weeks prior to the filing of the complaint. The trial court granted the defendants' motion for summary judgment.


The Arizona Court of Appeals, Division One affirmed in each case the summary judgment awards. The court first issued an opinion in James, upon which it relied in deciding Parich, a memorandum decision. Our discussion of the court of appeals' analysis cites to the James decision, but is applicable to Parich as well.

To the court of appeals, the petitioners argued that the wrongful death statute 1 created in the decedent's survivors an original claim which came into being only at death and that because the death resulted from medical malpractice, then the three-year statute of limitations for medical malpractice actions, 2 rather than the two-year limitation period generally applicable to wrongful death actions, 3 should govern and commence at the date of death. We agree. In support of their argument, petitioners cited Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984).

The issue presented in Kenyon was "whether the statute of limitations for medical malpractice actions (A.R.S. § 12-564(A)) is constitutional as applied to this case." 142 Ariz. at 71, 688 P.2d at 963. The constitutionality of A.R.S. § 12-564(A) was at issue because the plaintiff husband and wife commenced an action for the stillbirth of their second child and for the wife's personal injuries one year after the stillbirth, but more than six years after the alleged medical malpractice. The malpractice allegedly occurred when the doctor failed to administer RhoGAM to the wife within seventy-two hours after delivering her first child. Five years later, the wife conceived a second child. Due to the failure to receive RhoGAM, the plaintiffs' second child was stillborn.

In considering whether the suit was timely filed, two members of a four judge court 4 held that "as used in the present statute (A.R.S. § 12-564(A)) 'date of injury' means date on which injury occurs and not the date on which the negligent act occurs." 142 Ariz. at 75, 688 P.2d at 967. All members of the court recognized the right to sue for an injury as a fundamental right protected by Arizona Constitution article 18, section 6. Id. at 83, 88, 688 P.2d at 975, 980. The lead opinion held A.R.S. § 12-564 to be unconstitutional for violating the equal protection provisions of Arizona Constitution article 2, section 13, whereas the concurring opinion held A.R.S. § 12-564 unconstitutional because it "abrogates an action for damages even before the action arises or can reasonably be discovered...." Id. at 87-88, 688 P.2d at 979-80. All four justices agreed, however, that "the three-year statute of limitations of A.R.S. § 12-564 [would] remain in effect except that the courts of this state shall follow the discovery rule 5 as set out in Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 482 P.2d 497 (1971)." Kenyon, 142 Ariz. at 87, 88, 688 P.2d at 979, 980. Accordingly, the court held that although the wife suffered an "injury" when her doctor failed to administer RhoGAM, such an injury was "both undiscovered and undiscoverable" by the plaintiffs until the stillbirth of their second child. Therefore, the wife's claim for personal injury, utilizing the discovery rule, was timely filed under A.R.S. § 12-564.

Addressing the wrongful death claim, the Kenyon court concluded that the medical malpractice statute, A.R.S. § 12-564(A), rather than the general statute of limitations for wrongful death actions, A.R.S. § 12-542(2), was applicable, reasoning:

A.R.S. § 12-564 is part of the malpractice legislation enacted by the state legislature in 1976 in response to a perceived malpractice crisis. Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977). Enacted later than the wrongful death statute, it was intended by the legislature as a remedial act in response to the difficulties which the medical profession was experiencing in obtaining malpractice insurance. Id. at 584, 570 P.2d at 752. We can conceive of no reason why the legislature would have intended such a remedial measure to apply to malpractice claims where there had been injury, but not to malpractice claims where there had been death. It is true that § 12-564 states that it applies to actions for "injury"...

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