Landgraff v. Wagner
| Decision Date | 05 February 1976 |
| Docket Number | No. 1,CA-CIV,1 |
| Parties | Esther A. LANDGRAFF, Appellant, v. A. G. WAGNER, M.D., Samaritan Health Services, a corporation, Good Samaritan Hospital, a business association, and Frank R. Precheny, M.D., Appellees. 2677. |
| Court | Arizona Court of Appeals |
This is a medical malpractice action brought by Esther A. Landgraff (appellant) after the discovery and removal of a surgical clamp which had been left within her abdomen following surgery.
The trial court found that the statute of limitations barred the action against the appellees, A. G. Wagner, M.D., Frank R. Precheny, M.D., Samaritan Health Services and Good Samaritan Hospital, and accordingly entered summary judgment in their favor dismissing the case. On appeal we are asked to review the judgment on two issues: namely, whether the applicable statute of limitations is constitutional and, if so, whether there are genuine issues of material fact which would preclude summary disposition.
The complaint alleged that appellant was operated upon for gallstones by Doctors Wagner and John Redman (not a defendant in the action) on September 25, 1962, and Doctors Wagner and Precheny on November 15, 1962, and that in one of the two operations a six-inch hemostat or steel surgical clamp was left within her abdomen. Following these operations she experienced some post-operative difficulty, but no X rays were taken and the clamp was not discovered. For many years following the operations she experienced pain, almost every day, but did not see a doctor. There is an indication in the record that while friends advised her to consult a doctor, her husband was opposed to it and she acquiesced in his wishes. Finally on September 8, 1971, more than nine years after the surgery in which the clamp was left within her, Esther Landgraff experienced acute pain and went to the emergency room at Good Samaritan Hospital where X rays revealed the presence of the surgical clamp. On September 11, 1971, the clamp was surgically removed. This suit was thereafter filed on December 6, 1972 for recovery of damages.
Following appropriate motions the trial court dismissed the action against all defendants on the ground that appellant failed to commence her action within six years after the date of the injury in accordance with A.R.S. § 12--542(B) which reads as follows:
A cause of action for injury or death against a physician or surgeon, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatrist, licensed psychologist, osteopath, chiropractor, licensed clinical laboratory director, naturopath, or a licensed hospital as the employer of any such person, based upon such person's alleged professional negligence, or for rendering professional services without consent, or for error or omission in such person's practice, shall accrue as of the date of injury and shall be commenced and prosecuted within six years after the date of injury or two years after the injured party discovers or through the use of reasonable diligence should have discovered the malpractice, whichever period first occurs. These time limitations shall be tolled for any period during which such person has failed to disclose any act, error or omission upon which such action is based and which through the use of reasonable diligence should have been known to him.
The court also found that appellant failed to commence her action within one year from the date A.R.S. § 12--542(B) took effect as prescribed by A.R.S. § 12--505(C) which states:
If an amendment of pre-existing law shortens the time of limitation fixed in the pre-existing law so that an action under pre-existing law would be barred when the amendment takes effect, such action may be brought within one year from the time the new law takes effect, and not afterward.
THE CONSTITUTIONALITY OF A.R.S. § 12--542(B)
We recognize, at the outset, that there is a strong presumption which favors the constitutionality of acts of the legislature. Arizona Podiatry Association v. Director of Insurance, 101 Ariz. 544, 422 P.2d 108 (1966); Selective Life Ins. Co. v. Equitable Life Assurance Society, 101 Ariz. 594, 422 P.2d 710 (1967); McKinley v. Reilly, 96 Ariz. 176, 393 P.2d 268 (1964). Indeed, we must be satisfied beyond a reasonable doubt before we will declare a statute unconstitutional. Shaw v. State, 8 Ariz.App. 447, 447 P.2d 262 (1968).
Several issues regarding the constitutionality of A.R.S. § 12--542(B) are raised by appellant.
The first involves the question of whether a statute of limitations can constitutionally bar a claim for personal injury where the claimant was never aware of the claim.
The general rule relating to whether a period of limitation will run against a claimant where he or she has no awareness of the claim is stated in 51 Am.Jur.2d Limitation of Actions, § 146:
. . . the general rule in actions at law is that the mere fact that a person entitled to an action has no knowledge of his right to sue, or of the facts out of which his right arises, does not prevent the running of the statute or postpone the commencement of the period of limitation until he discovers the facts or learns of his right thereunder. . . .
This court has recently followed the rule in Jackson v. American Credit Bureau, Inc., 23 Ariz.App. 199, 531 P.2d 932 (1975) (). Since it is often seen as leading to a necessarily harsh result, courts have made exceptions to it, particularly in the medical malpractice field. This court, for example, held in Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 482 P.2d 497 (1971) that the period of limitation under the predecessor to A.R.S. § 12--542(B) did not begin to run until the patient knew or should have known of the malpractice. This interpretation of the statute of limitations, often referred to as the 'discovery' rule, has been widely adopted in other states as well. See: Statutes of Limitations and Undiscovered Malpractice, 16 Cleveland-Marshall Law Review 65 (1967) and 80 A.L.R.2d 368, When statute of limitations commence to run against malpractice action against physician, surgeon, dentist, or similar practitioner.
Appellant concedes that absent a controlling constitutional provision, the legislature may enact a statute of limitations which will run despite the claimant's lack of awareness of the claim. She argues, however, that in Arizona such a limitation on an action to recover for personal injuries is unconstitutional by reason of Article 18, § 6 of the Arizona Constitution, which reads:
The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.
Her contention is that the 'right of action' set forth in Article 18, § 6 of the Arizona Constitution implies subjective awareness of the right. She argues that subjective awareness of a claim for personal injury is thus raised to a constitutional level and is protected against legislation which would remove it as consideration in determining whether the period of limitation has run. We disagree, however, that this meaning can be read into Article 18, § 6. We hold that the 'right of action' mentioned in the constitutional provision is equivalent to the common law action for negligence which, by reason of the provision, is embedded in the Constitution. See Alabam's Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658 (1926). We are referred to no case which holds that subjective awareness of the claim is something which necessarily flows from the constitutional language and we decline therefore to attribute this meaning to it. Likewise, we do not agree that the running of the statute of limitations without awareness on the part of the claimant is equivalent of 'abrogation' of 'the right of action.' To 'abrogate' means 'to annul, repeal, or destroy.' Black's Law Dictionary (Rev. 4th Ed.). A.R.S. § 12--542(B) does not either annul, repeal or destroy the right of action for personal injury. It does qualify it, however, by providing for a reasonable period of time within which it must be brought. The Arizona Supreme Court has held that even a constitutional right is subject to a reasonable statute of limitations. Rutledge v. State, 100 Ariz. 174, 412 P.2d 467 (1966). Reasonable restrictions do not 'abrogate' the right to recover damages for injuries. We find the statute of limitations under review here to be a reasonable legislative restriction upon the right of action even in view of its seemingly unfair effect upon a claimant who was unaware of the claim.
Appellant asserts that A.R.S. § 12--542(B) deprives her of a constitutionally protected right of action without due process in violation of Article 2, § 4 of the Arizona Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.
Due process is a concept more difficult to define than it is to apply. It is typically invoked to assure that rights and property are not taken by governmental authority without notice and an opportunity for hearing. In the context of a statute of limitations, we recognize that a reasonable period of limitation imposed by statute does not offend the concept of due process or destroy the right involved. See United States v. Morena, 245 U.S. 392, 38 S.Ct. 151, 62 L.Ed. 359 (1918). See also Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945). There is no contention...
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