Montano v. Scottsdale Baptist Hospital, Inc.

• Decision Date: 31 May 1978
• Docket Number: No. 13161,13161
• Citation: 119 Ariz. 448,581 P.2d 682
• Parties: Robert A. MONTANO and Marylou Montano, husband and wife, Appellants, v. SCOTTSDALE BAPTIST HOSPITAL, INC., a corporation, O. Melvin Phillips, M. D., Jack O. Hubbard, M. D., Orthopedic Center, Ltd., and Phillips and Hubbard, M. D.'s, P. C., Appellees.
• Court: Arizona Supreme Court

Page 682

581 P.2d 682

119 Ariz. 448

Robert A. MONTANO and Marylou Montano, husband and wife, Appellants, v. SCOTTSDALE BAPTIST HOSPITAL, INC., a corporation, O. Melvin Phillips, M. D., Jack O. Hubbard, M. D., Orthopedic Center, Ltd., and Phillips and Hubbard, M. D.'s, P. C., Appellees.

No. 13161.

Supreme Court of Arizona,In Division.

May 31, 1978.

Rehearings Denied June 27, 1978.

Rees, Mercaldo & Smith by Paul G. Rees, Jr., Tucson, Wade, Robson, Palmer & Nelson by Charles I. Robson, V, Mesa, for appellants.

Miller, Mark & Seidel by John H. Seidel, Phoenix, for appellees Phillips and Hubbard.

Jennings, Strouss & Salmon by W. Michael Flood, Phoenix, for appellee Scottsdale Baptist Hospital.

STRUCKMEYER, Vice Chief Justice.

In this suit for medical malpractice, the plaintiffs appeal from an adverse jury verdict and the judgment entered thereon. Jurisdiction was accepted pursuant to 17A A.R.S. Rules of the Supreme Court, Rule 47(e).

The plaintiff, Robert A. Montano, injured his wrist while in the course of his employment. Eventually he was treated by Jack Hubbard, M.D., of the Orthopedic Center, Ltd., Scottsdale, Arizona. Dr. Hubbard hospitalized the plaintiff at the Scottsdale Baptist Hospital on Sunday, August 23, 1970. The next day at approximately 10:00 a. m., Dr. Hubbard operated on his right wrist. There were no complications during surgery, but thereafter plaintiff complained of pain. Dr. Hubbard in writing directed that plaintiff be given one-quarter grain of morphine sulfate, intramuscularly every three hours as needed to combat pain.

That evening and later that night, plaintiff was given several additional dosages of morphine, at least one of which was given at the direction of the defendant, Dr. Phillips. Around 8:00 or 9:00 p. m., plaintiff complained of being hungry and asked his wife for something to eat. Mrs. Montano inquired at the nurse's station if she should give plaintiff food. After receiving permission from the nurse on duty, she purchased a hamburger and a malt. Some time after plaintiff had consumed this food, Mrs. Montano left the hospital and returned home.

At approximately 11:15 p. m., plaintiff suffered a "code arrest." Exactly what is meant by "code arrest" does not appear in the record; however, plaintiff stopped breathing and lapsed into unconsciousness. Dr. John Currin, a hospital employee, administered Nalline, a drug used to counteract narcotic overdose, and completed on a hospital form his diagnosis as a "narcotic overdose." Later, while in the intensive care unit and unconscious, plaintiff was catheterized. On attempting to remove the catheter, Dr. Currin realized the bulb was only partially deflated. Unable to push the bulb back into the bladder, he pulled it through the urethra, inflicting damage to the plaintiff's urethra and penis.

Plaintiffs filed a complaint in the Pima County Superior Court on December 3, 1971, approximately one year and four months after the above-stated incident. They alleged medical malpractice. The complaint named John Doe, Richard Roses 1 to 10, Scottsdale Baptist Hospital, and XYZ Corporation. It did not name specifically Dr. Phillips or Dr. Hubbard. The complaint and summons were served on Dr. Phillips and Dr. Hubbard on September 19, 1972. At that time, Arizona had a statute of limitations of two years for injuries to the person, A.R.S. § 12-542(1). The running of the period of limitations commenced from the date of the negligent act.

Defendants Hubbard and Phillips answered, denying any negligence. More than two years later, on October 4, 1974, they applied to the Superior Court for leave to amend their answer to assert the running of the statute of limitations. They also moved for summary judgment. The court denied the motion for summary judgment, but granted the motion to amend. After trial, the jury was instructed to the effect that if the plaintiffs knew or could have determined the facts which formed the basis of their claims against Dr. Hubbard and Dr. Phillips on or before September 18, 1972, the jury verdict "must be in favor of (them) because under the Arizona Statute of Limitations the PLAINTIFFS' claim would be barred."

Plaintiffs' first claim of error is predicated on the assertion that it was only necessary for plaintiffs to file their complaint before the expiration of the two-year period of limitations fixed by A.R.S. § 12-542, and thereafter serve the summons within one year, the period of time allowed by Rule 6(f) of Arizona Rules of Civil Procedure. Plaintiffs argue that reversible error was committed by the court when it permitted the individual doctors to amend their answers and submitted to the jury as a factual question whether the statute of limitations had run prior to the service of summons on the individual doctors. It is the plaintiffs' position that as a matter of law they timely commenced the action within the period of limitations, since the action was commenced a year and four months after the events of which complaint is made.

Section 12-542 provides in part:

"There shall be commenced and prosecuted within two years after the cause of action accrues, and not afterward, the following actions:

1. For injuries done to the person of another."

In Hagenauer v. Detroit Copper Mining Company, 14 Ariz. 74, 124 P. 803 (1912), the court found P 2950 of the Statutes of 1901 (now § 12-542, supra) was adopted in the Territory of Arizona in 1887 from Texas. It was held that the application of the statute in Texas made before its adoption ought to have great weight if not binding force and that in such cases the construction is adopted which is well known to the profession. The Texas interpretation of the statute must therefore be given great weight.

In Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178 (1935), it was stated that the Texas courts had uniformly held that the mere filing of a suit does not interrupt the running of limitations; that the statute provided the suit must be "prosecuted" as well as "commenced," and that it is not sufficient simply to commence the suit, but there must also be a bona fide intention that process shall be served "at once" upon the defendant. The Texas court concluded that it was more reasonable to believe that the legislature intended to afford a defendant the means by which he might be relieved of disproving the merits of the claim asserted against him where through the fault of the plaintiff he was not called to defend until the means of disproving the claim was lost through lapse of time. ¹ Were we to follow the construction adopted in Texas, we would be compelled to conclude that the plaintiffs' action was lost through inaction, since it is plain that no attempt was made to serve the doctors "at once." However, the Arizona Legislature has provided a more extended period.

By Rule 6(f) Rules of Civil Procedure, 16 A.R.S.:

"An action shall abate if the summons is not issued and served * * * within one year from the filing of the complaint."

Rule 6 is derived directly from R.S. 1913 § 460. It is therefore clear that the Legislature did not intend to leave the important time for summoning a defendant to court to judicial improvisation as to when a claim was lost by lapse of time and that a period was intended to be provided during which a summons must be served in order that the action not abate.

In Gideon v. St. Charles, 16 Ariz. 435, 438, 146 P. 925, 927 (1915), in discussing a question similar to that presented here, we said:

"The statute (Rule 6(f), supra), as we see it, fixes the time for prosecuting the suit, after it is commenced, as one year by providing that a summons may be issued within that time. In the absence of such a statute, the reasoning of the Texas rule would be applicable, and diligence and good faith would become a question of fact in all cases wherein there was delay in issuing or serving the summons after the expiration of the statute of limitation. The presence of the statute definitely fixes the time as one year after the commencement thereof by filing complaint, as the time within which it must be 'prosecuted' by issuing summons."

And see Murphey v. Valenzuela, 95 Ariz. 30, 386 P.2d 78 (1963), and Taylor v. Superior Court, 13 Ariz.App. 52, 474 P.2d 59 (1970).

Accordingly, we conclude that an action which is filed within the time limit provided by the statute does not abate unless the plaintiff fails to have process issued and served upon the defendant within one year after filing.

The defendants, Phillips and Hubbard, however, argue that if a complaint which designates certain of the defendants by fictitious names is filed prior to the running of the statute of limitations, its filing does not toll the statute and the statute continues to run until the defendants are served and their true names added to the complaint. We first note that such a construction would work a discrimination against a plaintiff who files against an unknown defendant. In that case, a plaintiff has only the remainder of the two-year period in which to serve the defendants with process, whereas in the case of known defendants there is concededly two years to file the complaint and a full year thereafter to "commence" the action by serving process. Such a discriminatory distinction ought not be found unless a different result could not reasonably be reached. However, we do not find it necessary to answer this question.

By Rule 15(a), Rules of Civil Procedure, 16 A.R.S., an answer may be amended after 20 days only by leave of the court or by written consent of the adverse party. But leave to amend shall be given when justice requires. In the instant case, the individual defendants filed an answer October 10, 1972, and on the merits denied liability. They neither pleaded the statute of limitations nor questioned the manner of their service. Nearly two years later, on October 4, 1974, by motion to amend their answer, they raised the question of the applicability...