LITTLE v. State of Ariz.

• Citation: 240 P.3d 861,225 Ariz. 466
• Decision Date: 30 September 2010
• Docket Number: No. 2 CA-CV 2010-0079.,2 CA-CV 2010-0079.
• Parties: Johnnie LITTLE, for herself as natural mother of Shawntinice Polk, who was born March 27, 1983, and died September 26, 2005, and on behalf of all A.R.S. § 12-611, et seq. beneficiaries, if any, Plaintiff/Appellant, v. STATE of Arizona, Defendant/Appellee.
• Court: Court of Appeals of Arizona

225 Ariz. 466

240 P.3d 861

Johnnie LITTLE, for herself as natural mother of Shawntinice Polk, who was born March 27, 1983, and died September 26, 2005, and on behalf of all A.R.S. § 12-611, et seq. beneficiaries, if any, Plaintiff/Appellant,

v.STATE of Arizona, Defendant/Appellee.

No. 2 CA-CV 2010-0079.

Court of Appeals of Arizona,Division 2, Department A.

Sept. 30, 2010.

Stompoly & Stroud By John G. Stompoly, Tucson, Attorneys for Plaintiff/Appellant.

Terry Goddard, Arizona Attorney General By Catherine M. Stewart, Tucson, and Daniel P. Schaack, Phoenix, Attorneys for Defendant/Appellee.

OPINION

ESPINOSA, Judge.

¶ 1 Johnnie Little appeals from the trial court's grant of summary judgment in favor of the state and its denial of her cross-motion for summary judgment in this medical malpractice action for the wrongful death of Little's daughter, Shawntinice Polk. For all of the reasons set forth below, we affirm.

Factual and Procedural Background

¶ 2 “On appeal from a summary judgment, we view the facts in the light most favorable to the party against whom judgment was entered and draw all justifiable inferences in [her] favor.”

Modular Mining Sys., Inc. v. Jigsaw Techs., Inc., 221 Ariz. 515, ¶ 2, 212 P.3d 853, 855 (App.2009). Polk, a member of the University of Arizona's women's basketball team, died after collapsing in a training room on September 26, 2005. The cause of death was a pulmonary thromboembolism due to deep-vein thrombosis. For over a year before her death, Polk had received primary medical care from Dr. Donald Porter at the University of Arizona's Campus Health Service.

¶ 3 When Little came to Tucson from her home in California for Polk's memorial service, she was approached by Len Johnson, a local television reporter, who was planning to make a documentary film about Polk's death. Little authorized Johnson to obtain Polk's medical records and investigate the circumstances surrounding her death. ¹ After obtaining those records, Johnson consulted with four different physicians regarding Polk's symptoms and the medical care she had received.

¶ 4 On July 1, 2007, Johnson filed on Little's behalf a complaint against Dr. Porter with the Arizona Medical Board (the Board), ² asserting that Porter had been medically negligent in his care of Polk. The complaint stated it was “authorized and urged by Polk's mother, Johnnie Little”; that Little was working with Johnson; and that Johnson was “writing in conjunction with and on behalf of the mother.” The complaint set forth a number of the symptoms Polk exhibited before her death and asserted, “We have concluded that while clots are not easily detected, the warning signs and symptoms in this case [we]re too numerous and obvious to ignore and that Dr. Donald Porter fell below the standard of care when treating this patient.” Little authorized Johnson to prepare and file the complaint as well as to appear and testify at the ensuing Board hearing. ³

¶ 5 On February 7, 2008, the Board ruled that Porter's care of Polk constituted “unprofessional conduct” in violation of A.R.S. § 32-1401(27)(q). It issued a letter of reprimand for Porter's having failed to consider and pursue a diagnosis of pulmonary embolus, to perform an adequate examination, and to measure vital signs. On May 15, 2008, Little filed a notice of claim with the state pursuant to A.R.S. § 12-821.01. In recognition of the 180-day time limit for filing such claims, see § 12-821.01(A), Little asserted her claim had not accrued until the date of the Board's February 7, 2008, decision. She alternatively claimed the time limit should be equitably tolled.

¶ 6 The state moved for summary judgment based on the untimeliness of Little's notice of claim. The trial court granted the motion, ruling that, because Johnson was Little's authorized agent and Little specifically had approved his filing the Board complaint on July 1, 2007, her May 2008 notice of claim was untimely. The court also denied Little's cross-motion for summary judgment, in which she had argued that her notice of claim was timely because her cause of action did not accrue until the Board issued its decision and, alternatively, that any untimeliness should be excused under the doctrines of equitable estoppel and tolling. We have jurisdiction over Little's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(B).

Discussion

¶ 7 Little argues the trial court erred in granting summary judgment in favor of the state based on its finding that her notice of claim had been filed untimely. ⁴ The entry of summary judgment is appropriate “if the pleadings, deposition[s], answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1). “In reviewing a motion for summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law.” Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, ¶ 15, 165 P.3d 173, 177 (App.2007).

Timeliness of Notice of Claim

[1] ¶ 8 Under A.R.S. § 12-821.01(A), a party wishing to assert a claim against a public entity first must file a notice of claim within 180 days after the cause of action accrues. Any claim not filed within this time limit is barred. Id.; see Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, ¶ 10, 144 P.3d 1254, 1256 (2006).

[2] [3] ¶ 9 A cause of action accrues under § 12-821.01 “when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage.” § 12-821.01(B). The term “accrual” is construed in accordance with the common law discovery rule, which “provides that a cause of action accrues when a plaintiff discovers or reasonably should have discovered the injury was caused by the defendant's negligent conduct.” Stulce v. Salt River Project Agric. Improvement & Power Dist., 197 Ariz. 87, ¶ 10, 3 P.3d 1007, 1010 (App.1999). The relevant inquiry is when did a plaintiff's “ ‘knowledge, understanding, and acceptance in the aggregate provide [ ] sufficient facts to constitute a cause of action.’ ” Walk v. Ring, 202 Ariz. 310, ¶ 23, 44 P.3d 990, 996 (2002), quoting Doe v. Roe, 191 Ariz. 313, ¶ 36, 955 P.2d 951, 962 (1998).

¶ 10 Here, we must determine whether the trial court correctly concluded that Johnson's filing the Board complaint on Little's behalf marked the accrual of her claim for purposes of § 12-821.01(B). Little argues a number of reasons why it did not, contending she did not know the contents of the Board complaint, Johnson's opinion that Dr. Porter was negligent cannot be imputed to her, and “the cause of action d[id] not accrue until a medical expert t[old her] she was injured as a result of medical negligence,” which she maintains did not occur until the Board issued its decision. She further argues that the filing of the Board complaint could not cause the 180-day period to accrue because, “when Johnson told [her] he filed the [Board] complaint, neither had the slightest idea that Johnson's opinion about Dr. Porter's negligence could cause Little's cause of action to accrue.”

¶ 11 We find these arguments unavailing and agree with the trial court that Little's cause of action accrued as a matter of law no later than the date the Board complaint was filed. The Board is charged with investigating complaints filed against physicians who may be “medically incompetent,” “guilty of unprofessional conduct,” or “mentally or physically unable safely to engage in the practice of medicine,” A.R.S. § 32-1451(A), and its “primary duty is ‘to protect the public from unlawful, incompetent, unqualified, impaired or unprofessional practitioners,’ ” Murphy v. Bd. of Med. Examiners, 190 Ariz. 441, 446-47, 949 P.2d 530, 535-36 (App.1997), quoting A.R.S. § 32-1403(A). When Little took the significant step of essentially alleging Porter's malpractice to the Board, she not only initiated an investigation into Porter's treatment of Polk but expressly identified the actors and events that “caused or contributed to [her] damage.” § 12-821.01(B); see also Keonjian v. Olcott, 216 Ariz. 563, ¶¶ 15-16, 169 P.3d 927, 930 (App.2007) (attorney malpractice cause of action accrued as matter of law when plaintiff made sworn statements concerning attorney's mishandling of transaction).

[4] ¶ 12 By authorizing and knowing about the filing of the Board complaint against Porter, even if she did not read its contents, Little demonstrated that, as of that time, her “ ‘knowledge, understanding, and acceptance in the aggregate provided sufficient facts to constitute a cause of action.’ ” Walk, 202 Ariz. 310, ¶ 23, 44 P.3d at 996, quoting Doe, 191 Ariz. 313, ¶ 36, 955 P.2d at 962. “A plaintiff need not know all the facts underlying a cause of action to trigger accrual” but “must at least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury.” Doe, 191 Ariz. 313, ¶ 32, 955 P.2d at 961; see also Stulce, 197 Ariz. 87, ¶ 10, 3 P.3d at 1010 (“[A] cause of action accrues when a plaintiff discovers or reasonably should have discovered the injury was caused by the defendant's negligent conduct.”); Floyd v. Donahue, 186 Ariz. 409, 412, 923 P.2d 875, 878 (App.1996) (cause of action accrued as matter of law when plaintiff began treatment at sexual abuse center, showing she “had reason to know her father's abuse [had] caused her injury”).

¶ 13 Here, although Little contends she was unaware of Porter's negligence until the Board had ruled on her complaint against him, her Board complaint detailed Polk's symptoms and warning signs as well as Porter's allegedly inadequate treatment. The complaint also alleged that other state actors had contributed substantially to Polk's...