James v. Phoenix General Hosp., Inc.
| Decision Date | 28 August 1986 |
| Docket Number | CA-CIV,Nos. 1,CV-86-0535-PR,s. 1 |
| Citation | 744 P.2d 689,154 Ariz. 588 |
| Parties | Mildred 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. 8251, |
| Court | Arizona Court of Appeals |
In this action for wrongful death based on alleged medical malpractice, the surviving spouse and children of decedent Maurice James (appellants) appeal the granting of summary judgment in favor of appellees, Phoenix General Hospital, Inc., Osteopathic Surgeons, Ltd., and Robert Ostwinkle, D.O. The appellants present two issues: (1) whether the three-year statute of limitation period in A.R.S. § 12-564(A) is applicable to a medical malpractice wrongful death claim and, if so, whether it should be interpreted as commencing to run on the date of the victim's death; and (2) whether A.R.S. § 12-564(A), if interpreted to run from the date of injury in a wrongful death action, violates article 2, §§ 4 and 13 and article 18, § 6 of the Arizona Constitution. As a cross-question, appellee, Phoenix General Hospital, Inc. contends that the judgment in its favor must be affirmed on an independent ground relied upon by the trial court and unchallenged on appeal.
The operative facts are brief and undisputed. On July 28, 1978, Maurice James underwent surgery to remove his gallbladder. The surgery was performed at Phoenix General Hospital by Robert Ostwinkle, D.O. The surgery was complicated by intraoperative bleeding and continued bile drainage. Immediately after the surgery Dr. Ostwinkle told Mr. and Mrs. James the postoperative bile drainage showed that one of the clips placed on the cystic duct during surgery had become removed. Dr. Ostwinkle further told Mr. James that a test indicated his liver function had been compromised. He told both Mr. and Mrs. James that in his opinion the common duct had been compromised during the surgery and would eventually have to be repaired. Dr. Kasovac, the admitting physician, also told Mr. and Mrs. James right after surgery that a massive intraoperative bleed had occurred during the operation. Dr. Kasovac later told Mr. James it was possible that during the surgery the common duct had been compromised or obstructed.
Mr. James was discharged from the hospital on August 17, 1978. Ten days later he was readmitted to Phoenix General Hospital with a diagnosis of partial common duct obstruction and abscess at the bile drainage site. He was treated and discharged on September 15, 1978. On January 31, 1981, approximately 2 1/2 years after the surgery, Mr. James died. His death was allegedly causally related to the 1978 surgery.
On November 1, 1983, two years and nine months after Mr. James' death and more than five years after the surgery, appellants filed this wrongful death action. The complaint alleged that Dr. Ostwinkle had performed the surgery negligently, injuring Mr. James and thereby causing his death. The complaint also alleged that Phoenix General Hospital was liable pursuant to Purcell v. Zimbelman, 18 Ariz.App. 75, 500 P.2d 335 (1972), because it "knew or should have known that the Defendant Robert Ostwinkle was not competent to conduct the surgical case of Maurice James." All defendants moved for summary judgment on the ground that the action was barred under the three-year statute of limitation imposed by A.R.S. § 12-564(A). Phoenix General Hospital also sought summary judgment on the independent ground that appellants were unable to produce expert 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 on January 3, 1985, and this appeal followed.
Appellants first contend the trial court erred in failing to hold that the three-year limitation period of A.R.S. § 12-564(A) 1 did not start to run until Mr. James' death, and that their complaint was therefore timely. They assert it is well settled in Arizona that the wrongful death statute creates an original and distinct claim for damages sustained by the statutory beneficiaries which is not derivative of or a continuation of a claim existing in the decedent and which accordingly does not come into being until the victim's death. Barragan v. Superior Court, 12 Ariz.App. 402, 470 P.2d 722 (1970); Rogers v. Smith, Kline and French Laboratories, 5 Ariz.App. 553, 429 P.2d 4 (1967). See A.R.S. §§ 12-611 through 12-613. Appellants further assert that in Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984), our supreme court held that the limitation provided by A.R.S. § 12-564(A) governs both personal injury and wrongful death claims based on medical negligence. Appellants argue that under Kenyon the date of the "injury," as that term is used in A.R.S. § 12-564(A), can only be interpreted in this case to mean the date of death. Under this construction, the appellants' complaint would be timely.
We agree with the appellants that Arizona's wrongful death statute creates an original and independant cause of action in the statutory beneficiaries upon the death of the victim. We do not agree, however, that the date of injury equates with the date of death or that a wrongful death claim based on medical negligence is governed exclusively by the three-year statute of limitations for medical malpractice actions.
In Kenyon, supra, the issue was presented as to which statute of limitations applied, the two year wrongful death statute, A.R.S. § 12-542, or the three year medical malpractice statute, A.R.S. § 12-564(A), where the alleged malpractice resulted in death. In that case, the malpractice allegedly occurred when the plaintiff failed to receive a drug known as RhoGAM within 72 hours after delivering her first child. Five years later the plaintiff conceived a second child. Because of the prior failure to administer RhoGAM, the plaintiff's second child was stillborn. One year after the stillbirth, and over six years after the alleged negligence, the mother and father commenced an action for the wrongful death of their second child and for personal injuries suffered by the mother during the second pregnancy.
By a plurality decision, two justices concluded that "the applicable limitation period to both the bodily injury claim of Mrs. Kenyon and the wrongful death claim for the death of the Kenyon baby is set forth in A.R.S. § 12-564(A), which provides that a cause of action for medical malpractice must be commenced within three years 'from the date of injury.' " These same justices went on to determine that " 'date of injury' means date on which injury occurs and not the date on which the negligent act occurs."
The "lead" opinion then determined that in fact Mrs. Kenyon suffered an "injury" following the birth of her first child, some 6 years prior to bringing her action, but that she could not reasonably discover this "injury" until the stillborn death of her second child. It is at this point that all four participating justices concur and hold that a statute which would have barred Mrs. Kenyon's cause of action before it was discovered is unconstitutional. 2
However, the two "concurring" justices intimated no opinion regarding the exclusive application of A.R.S. § 12-564(A) to the wrongful death claim, or whether the "injury" referred to in A.R.S. § 12-564(A) equates with "death" in a wrongful death setting. In fact, the "lead" opinion also failed to equate "death" with "injury" by noting in a footnote:
We also do not reach the question of whether a death action may be pursued even though the deceased's action for personal injuries was barred before his death.
Kenyon, supra at 75, 688 P.2d at 967.
In Kenyon, the court simply did not need to resolve these issues, for both the wrongful death action and the malpractice action accrued at the same time--upon the death of the second child, which corresponded with Mrs. Kenyon's "discovery" of the malpractice action. The subsequent suit on both actions was brought within one year of that date.
Under these circumstances, we could properly consider the "exclusivity" holding of the "lead" opinion, that the malpractice statute of limitations applies to a death action to be dicta or we could apply the general proposition that plurality decisions do not fall under the normal rules of stare decisis because they are deemed to have no precedential authority. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (); Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf R. Co., 335 N.W.2d 148 (Iowa 1983) (); Frank v. City of Cody, 572 P.2d 1106 (Wyo.1977) (); and Commonwealth v. Bracero, 325 Pa.Super. 494, 473 A.2d 176 (1984) ().
In any event, we feel reasonably comfortable in stating that the issue of which statute of limitations...
To continue reading
Request your trial
-
James v. Phoenix General Hosp., Inc., s. CV
...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 th......
-
City of Tucson v. Fahringer
...Kenyon v. Hammer, 142 Ariz. 69, 75, 688 P.2d 961, 967 (1984), vacated in part on other grounds, James v. Phoenix General Hospital, Inc., 154 Ariz. 588, 744 P.2d 689 (1986). See also Bryant v. Continental Conveyor & Equipment Co., 156 Ariz. at 197, 751 P.2d at 513 (Feldman, VCJ, dissenting).......