Kenyon v. Hammer

Decision Date19 September 1984
Docket NumberNo. 17141-PR,17141-PR
Citation688 P.2d 961,142 Ariz. 69
Parties, 53 USLW 2184 William 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.
CourtArizona Supreme Court
Leonard & Clancy by James J. Leonard, Jr., Kenneth P. Clancy, Michael J. O'Melia, Phoenix, for plaintiffs-appellants

Teilborg, Sanders, Haga & Parks by Robert J. Bruno, Frank A. Parks, Steven Plitt, Kathleen A. Nielson, Phoenix, for defendants-appellees.

Snell & Wilmer by John J. Bouma, Robert J. Gibson, Preston H. Longino, Jr., Phoenix, for amicus curiae Arizona Medical Ass'n.

Langerman, Begam, Lewis & Marks by Amy G. Langerman, William B. Revis, Phoenix, for amicus curiae Arizona Trial Lawyers Ass'n.

FELDMAN, Justice.

William A. Kenyon, Jr. and his wife, Sharon D. Kenyon (plaintiffs) brought a medical malpractice action against Raymond E. Hammer, M.D., and his wife (defendants). Defendants moved for summary judgment. The trial court granted the motion and entered judgment for defendants. The court of appeals reversed and defendants petitioned this court for review. The issue presented by the operative facts is whether the statute of limitations for medical malpractice actions (A.R.S. § 12-564(A)) is constitutional as applied to this case. We granted review because of the importance of that legal question. Ariz.R.Civ.App.P., Rule 23(c) 17A A.R.S. After granting review we ordered the parties to file supplemental briefs, set the matter for 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 holding and the opinion which follows are based entirely on state constitutional grounds; federal authority is cited only for the purpose of guidance and not because it compels the result which we reach. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).


Mrs. Kenyon became pregnant with her first child in the late fall of 1971 and came under Dr. Hammer's care in November, 1971. During the course of Mrs. Kenyon's pregnancy, a routine blood test revealed that she had Rh negative blood, but one of Dr. Hammer's nurses erroneously marked her chart to indicate that her blood type was Rh positive. A normal, healthy child with Rh positive blood was delivered on July 10, 1972. If Dr. Hammer had known that Mrs. Kenyon had Rh negative blood he would have administered RhoGAM, a drug which suppresses the immune response which Rh negative mothers may develop to the Rh positive blood cells of their child. To be effective, the drug must be administered within seventy-two hours after delivery of an infant with Rh positive blood. Failure to administer the drug increases the risk of the immune response and the consequent risk to subsequent pregnancy by approximately ten times. Since Dr. Hammer was misled by the information on the chart, the drug was not administered. Mrs. Kenyon did develop the immune response and her ability to bear additional children was, therefore, substantially impaired. Mrs. Kenyon was unaware of this development.

Over five years after the birth of her first child, Mrs. Kenyon again became pregnant. She was delivered of a second child on April 26, 1978. The second baby was stillborn as a result of the destruction of its blood cells by the mother's Rh antibodies; in order to prevent such future tragedies and to protect her own health, Mrs. Kenyon underwent tubal ligation.

On April 30, 1979, one year after the delivery of the second child, plaintiffs filed a two count complaint against defendants.

Both counts are based upon Dr. Hammer's vicarious liability for the alleged negligence of his nurse in incorrectly recording Mrs. Kenyon's Rh factor during the 1971-72 pregnancy. Count I of the complaint sought damages for the wrongful death of the baby; Count II sought recovery of damages for Mrs. Kenyon, including those associated with her second pregnancy, the tubal ligation and the resultant sterility. Defendants moved to dismiss and, in the alternative, moved for summary judgment on the ground that both counts of the complaint were barred by the malpractice statute of limitations, A.R.S. § 12-564(A). The trial court agreed, and granted summary judgment in favor of defendants on both counts.


There are two statutes of limitations which may be applied to the wrongful death claim. The first is the general statute which applies to all wrongful death claims and which provides that an action for wrongful death accrues at the date of death and is barred two years thereafter. A.R.S. § 12-542(2). Plaintiff argues that Count I of the complaint was therefore timely since it was filed within two years from the date of the baby's death. Acknowledging that A.R.S. § 12-542 is the general statute of limitations applicable to wrongful death claims, defendant argues, nevertheless, that all medical malpractice claims, whether for injury or death, are governed by the specific provisions of A.R.S. § 12-564(A), which provides that a "cause of action for medical malpractice against a licensed health care provider accrues as of the date of the injury ..." and, with certain exceptions (id., subsect. B, C, & D) is barred three years thereafter. Defendant claims that whatever the meaning of "date of the injury," the complaint, filed seven years after the negligent act, was untimely if the malpractice statute is applied. The court of appeals held that the action was governed by the wrongful death statute (A.R.S. § 12-542) and that the malpractice statute (A.R.S. § 12-564) applies to actions for "injuries, not wrongful death." 142 Ariz. at 128, 688 P.2d at 1020 (emphasis in original). We do not agree.

A.R.S. § 12-542 is a general statute of limitations which, as adopted, applied to all claims for wrongful death no matter what the nature of the underlying claim. 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" and does not mention wrongful death claims. However, that statute is a part of Title 12, Chapter 5.1, entitled "Actions Relating To Health Care." The first statute in the chapter, A.R.S. § 12-561, contains definitions applicable to the entire chapter and provides that a " 'cause of action for medical malpractice' means an action for injury or death against a licensed health care provider...." Thus, the word "injury" used in § 12-564(A) with regard to the limitation period for "medical malpractice" actions includes "death" as an "injury."

This analysis compels us to conclude 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 the injury."


Defendant argues that it was the intention of the legislature to equate "date of Acknowledging that this harsh result is not mandated by the wording of the statute, defendant contends that the issue was decided in Landgraff v. Wagner, 26 Ariz.App. 49, 546 P.2d 26 (1976), in which the court of appeals held that the words "date of injury" in the predecessor to the present A.R.S. § 12-564(A) should be interpreted as the date on which the negligent act occurred. Landgraff does state such a conclusion, but in Landgraff, as in most cases, negligence had produced contemporaneous injury. In the case at bench there was a long hiatus between the time of negligence and, at least in the death case, the time at which injury occurred. We recently noted that Landgraff should not be read as broadly as defendant urges. In DeBoer v. Brown, 138 Ariz. 168, 170-71, 673 P.2d 912, 914-15 (1983) we held that Landgraff stands for the proposition that the legislative intent with regard to the predecessor of the present A.R.S. § 12-564(A) was to limit the discovery rule previously adopted in Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 482 P.2d 497 (1971), where the court of appeals held that a medical malpractice action accrued, and the statute began to run, on the date that the victim discovered or reasonably should have discovered that he or she had been injured by the negligence of the treating physician. 1

                the injury" with "date of the negligent act."   Thus, defendant urges that the statute expired three years from the date on which the nurse erred in writing the chart or, at the latest, three years from the date on which the doctor failed to administer RhoGAM.  If defendant is correct, the wrongful death claim would have been barred before the baby was conceived and Mrs. Kenyon's bodily injury claim would have been barred before she could possibly have discovered that she had been injured

Defendants contend, nevertheless, that in enacting the present st...

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