Kenyon v. Hammer, 1

Citation142 Ariz. 124,688 P.2d 1016
Decision Date12 May 1983
Docket NumberNo. 1,CA-CIV,1
PartiesWilliam A. KENYON, Jr., the surviving father of Baby Girl Kenyon, on his own behalf, and for and on behalf of Sharon D. Kenyon, the surviving mother of Baby Girl Kenyon; Sharon D. Kenyon and William A. Kenyon, Jr., wife and husband, Plaintiffs-Appellants, v. Raymond E. HAMMER, M.D., and Jane Doe Hammer, husband and wife, Defendants-Appellees. 5518.
CourtCourt of Appeals of Arizona

Leonard & Clancy, P.C. by James J. Leonard, Jr., Kenneth P. Clancy, Michael J. O'Melia, Phoenix, for plaintiffs-appellants.

Jones, Teilborg, Sanders, Haga & Parks by Robert J. Bruno, Phoenix, for defendants-appellees.

OPINION

GRANT, Judge.

The issue before us in this medical malpractice action is whether the case was properly dismissed on the grounds that the statute of limitations barred the plaintiffs' claims. We find that the claims were not barred and reverse the judgment of the trial court.

Appellant Sharon Kenyon first became pregnant in 1971, and was under the care of Appellee Dr. Hammer from November, 1971, until her delivery on July 10, 1972. During the course of Mrs. Kenyon's pregnancy, a blood sample was drawn. A laboratory report clearly indicated that she had type A, Rh negative blood. A nurse who was an employee of Dr. Hammer, erroneously copied in Mrs. Kenyon's chart that her blood type was Rh positive, rather than Rh negative. As a result of this alleged negligence, Sharon Kenyon did not receive a drug known as RhoGAM immediately after delivery. 1

Mrs. Kenyon delivered a second child on April 26, 1978, who was born dead. That same day, Mrs. Kenyon underwent surgery for a tubal ligation.

The Kenyons filed their complaint on April 30, 1979, alleging two claims. The first claim is for the wrongful death of the Kenyon baby on April 26, 1978. The second claim is for personal injuries sustained by Mrs. Kenyon, including medical expenses associated with her second pregnancy and the tubal ligation, and damages for the resulting sterility. Both claims are based upon the defendant's alleged negligence in incorrectly recording Mrs. Kenyon's blood type.

The defendants filed a motion for summary judgment/motion to dismiss on the ground that the statute of limitations barred both claims. The court granted the motion and made the following findings:

1. That there is no issue remaining of "intentional, concealing, or misrepresenting of facts about the surgery."

2. That the injury complained of occurred on or about July 9, 1972.

3. That the action has been brought more than one year (1) year after the effective date of ARS 12-564.

4. That the defendant is a licensed health-care provider.

5. That this matter be barred by the Statutes of Limitation.

Appellants argue on appeal that the trial court erred in finding that the injury complained of occurred on or about July 9, 1972. As a result of this initial erroneous determination, argue appellants, the court further erred in determining that the matter was barred by the statute of limitations. Additionally, appellants argue that A.R.S. § 12-564 violates both the Arizona and federal constitutions. We will address Mrs. Kenyon's claim for her own personal injuries first.

A.R.S. § 12-564 is the current statute of limitations provisions for actions against licensed health care providers. That section provides as follows:

§ 12-564, Health care, injuries; limitations of actions; exception

A. A cause of action for medical malpractice against a licensed health care provider accrues as of the date of the injury and shall be commenced and prosecuted within three years after the date of injury. In no event shall the time for commencement of legal action exceed three years from the date of injury except as provided in subsections B, C and D.

B. In an action based on injury through the leaving of a foreign object having no therapeutic, diagnostic or other medical reason for remaining in the patient's body, the period of limitations shall be tolled until the discovery of the foreign object or when the foreign object, with the exercise of reasonable diligence, should have been discovered, whichever occurs first.

C. In an action where a defendant or an agent of a defendant has intentionally prevented the discovery of an injury caused by that defendant by concealing or misrepresenting facts about the injury, the period of limitations shall be tolled from the date of the injury until the discovery of the injury or the time when, with the exercise of reasonable diligence, it should have been discovered, whichever occurs first.

D. Notwithstanding the provisions of § 12-502, in an action on behalf of a minor injured under the age of seven, the applicable period of limitations begins to run when the minor reaches his or her seventh birthday or on death, whichever occurs earlier.

Appellants argue that the date of the injury which forms the basis for Mrs. Kenyon's separate claim was April 26, 1978, which is the date that Mrs. Kenyon underwent surgery for a tubal ligation, as a direct result of the defendant's claimed medical negligence. Until that point in time, argue appellants, there was no injury, and no legal right to sue. In support of this argument, appellants cite Griesmer v. Griesmer, 116 Ariz. 512, 570 P.2d 199 (App.1977). In that case Division 2 of this court ruled that the statute of limitations did not begin to run on an assault claim between a husband and wife until the marriage terminated because the doctrine of interspousal tort immunity precluded a cause of action from arising while the parties were still married. 2 The court stated:

A cause of action accrues whenever one person may sue another. The statute of limitations then begins to run. [citations omitted] At the time of the acts alleged in the complaint, appellant was precluded from suing appellee by the doctrine of interspousal immunity. [citations omitted] Appellee argues that the policy underlying the statute of limitations is to protect defendants from litigation of "... stale claims where plaintiffs have slept on their rights ..." [citation omitted] To apply that policy to these facts, however, would punish appellant for failing to commence an action which the courts would have dismissed had he commenced it. If there was no enforceable right until the marriage terminated, [citation omitted] the cause of action could not have accrued until the dissolution on March 10, 1975. Thus, as appellant urges, the statute of limitations did not begin to run until that time.

116 Ariz. at 512-13, 570 P.2d at 199-200 (emphasis added).

Appellants argue that this principle applies to the facts in this case because, until April 26, 1978, Mrs. Kenyon did not suffer any personal injury and if suit had been brought prior to that time, the cause would have been dismissed.

Appellees, on the other hand, argue that A.R.S. § 12-564 specifically states that "[a] cause of action for medical malpractice against a licensed health care provider accrues as of the date of the injury ..." Appellees then argue that this court has already interpreted identical language in A.R.S. § 12-542(B) (the predecessor to A.R.S. § 12-564) and concluded that the "date of injury" is the date the claimed negligent conduct was first imposed upon the patient. Landgraff v. Wagner, 26 Ariz.App. 49, 546 P.2d 26 (1976). In Landgraff, we stated that the time is not measured from the point at which damages resulting from the "injury" either appear or disappear. We reasoned as follows:

First, the words "date of injury" imply a single date in time, not multiple dates. On such a basis the date of injury must necessarily be the original act of malpractice, for otherwise, where the effects of the malpractice may be continuous, there would never be an ascertainable date as contemplated by the statute. While the results of the original injury may continue, even to the point of further surgery to correct it, we believe the Legislature intended the date of injury to be the point at which the malpractice first occurred.

26 Ariz.App. at 56, 546 P.2d at 33.

Appellants would distinguish Landgraff on the grounds that in Landgraff, which involved the leaving of a surgical clamp in the plaintiff's abdomen, the plaintiff could have sued had she been aware of the defendant's negligence. In this case, argue appellants, not only was Mrs. Kenyon unaware of the physician's negligence, but additionally, she had no claim until the subsequent injuries resulted on April 26, 1978.

We agree that the statute of limitations does not begin to run on a claim for medical malpractice until injury occurs. See United States v. Reid, 251 F.2d 691 (5th Cir.1958); Cook v. Yager, 13 Ohio App.2d 1, 233 N.E.2d 326 (1968). A.R.S. § 12-564(A) states this clearly. While in many situations the injury will occur simultaneously with the act of malpractice, this is not always the case. Rosenthal v. Kurtz, 62 Wis.2d 1, 213 N.W.2d 741 (1974). Under the facts of this case, for example, Mrs. Kenyon suffered no compensable injury at the time Dr. Hammer failed to administer the drug RhoGAM after the birth of her first child. If she had decided not to have more children, or if her subsequent children had Rh negative blood as she has, there would have been no injury sustained. Only when she became pregnant with a fetus having Rh positive blood which fetus was subsequently injured by the mother's Rh positive antigens did she incur any damages. Thus, we believe that she was injured at the point of conception, rather than at the time of birth, of her second RH positive child. This is not an issue which must be decided in this matter, however, since in either case, the action filed April 30, 1979, was not barred by the three-year statute of limitations.

A case closely on point is Olson v. St. Croix Valley Memorial Hospital, Inc., 55 Wis.2d 628, 201 N.W.2d 63, 64 (1972). In that case, the plaintiff, whose blood type was Rh negative,...

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1 cases
  • Kenyon v. Hammer
    • United States
    • Supreme Court of Arizona
    • 19 d3 Setembro d3 1984
    ...oral argument and permitted several amici to brief the issue. Id. Rule 23(f). We vacate the opinion of the court of appeals, 142 Ariz. 124, 688 P.2d 1016 (App.1983), reverse the judgment of the trial court and hold that the statute violates Article 2, § 13 of the Arizona Constitution. That ......

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