Neeriemer v. Superior Court of Maricopa County

• Decision Date: 16 December 1970
• Docket Number: CA-CIV,No. 1,1
• Parties: , 70 A.L.R.3d 75 Elmer NEERIEMER, Petitioner, v. The SUPERIOR COURT OF MARICOPA COUNTY and the Honorable Kenneth C. Chatwin, Respondent; Lewis BROWN and Jane Doe Brown, his wife and John Eisenbeiss and Jane Doe Eisenbeiss, his wife, Real Parties in Interest. 1540.
• Court: Arizona Court of Appeals

Page 746

477 P.2d 746

13 Ariz.App. 460, 70 A.L.R.3d 75

Elmer NEERIEMER, Petitioner, v. The SUPERIOR COURT OF MARICOPA COUNTY and the Honorable Kenneth C. Chatwin, Respondent Lewis BROWN and Jane Doe Brown, his wife and John Eisenbeiss and Jane Doe Eisenbeiss, his wife, Real Parties in Interest.

No. 1 CA-CIV 1540.

Court of Appeals of Arizona, Division 1, Department B.

Dec. 16, 1970.

Rehearing Denied Dec. 31, 1970.

Review Denied Jan. 12, 1971.

Molloy, Jones, Hannah, Trachta & Coolidge by John F. Molloy, Tucson, and Norman Herring, Phoenix, for petitioner.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Ralph Hunsaker, Phoenix, for respondent Judge and real parties in interest.

HAIRE, Judge.

The petitioner by this special action seeks to reverse a ruling by the respondent trial judge that where the original complaint in a medical malpractice action alleges negligence in the performance of a surgical operation, an amended complaint which alleges a battery by reason of a failure to obtain the 'informed consent' of the plaintiff to the operation does not 'relate back' to the time of filing of the original complaint so as to defeat application of the statute of limitations. Though the question is not without some difficulty, we have concluded that the challenged ruling runs counter to the prevailing concepts of modern procedure, and we deem extraordinary relief appropriate. We have heretofore issued our order vacating the ruling in question so as to accommodate an early trial date, and this opinion is in amplification of that order.

A brief review of the facts as developed by the pleadings is necessary. The petitioner Neeriemer, plaintiff in the trial court, is afflicted with Hodgkin's Disease. Sometime between November 20 and November 26, 1966, he was allegedly advised by the respondent-defendant Dr. Eisenbeiss to submit to a laminectomy in order to relieve a spinal blockage and to prevent possible paraplegia. Petitioner agreed, and the operation was performed by the respondent-defendant Dr. Brown, a partner of Dr. Eisenbeiss, on November 26,1966. The incision in petitioner's back has not or is not, healed. Petitioner filed suit against the two respondent doctors and another party on October 30, 1968. He charged the doctors in this complaint with acts of negligence in the performance of the operation and also in post-operative treatment.

On February 11, 1970, petitioner filed with the trial court an amended complaint alleging, as an alternative theory of recovery, that the respondent doctors had failed to disclose that because of his condition and the necessary post-operative treatment the incision might not heal, and that such disclosure was necessary to enable petitioner to intelligently consent to the operation. Shortly thereafter, petitioner moved to file a more detailed second amended complaint, which alleged in substance a battery by reason of failure to advise petitioner of risks and complications involved in the surgery, and also failure to inform him of alternative methods of treating or controlling his condition other than surgery. Petitioner's motion to file this second amended complaint was granted by the trial court following argument on March 31, 1970. The respondent doctors did not then object to either of the amended complaints on the ground that the 'lack of informed consent' or battery claim therein was time-barred.

Thereafter the respondent doctors filed an answer to petitioner's second amended complaint, which did not raise the statute of limitations as a defense. The respondent doctors subsequently moved to amend their answer and filed a motion to dismiss petitioner's second amended complaint insofar as it alleged a battery by reason of lack of informed consent. The basis of this motion was that the latter allegations were barred by the terms of A.R.S. § 12--542, which provides a two year statute of limitations for actions for injuries done to the person of another. The trial judge granted the motion to dismiss, solely on the basis of the pleadings. This is the ruling in question before us.

Essentially at issue is the effect of the first sentence of Rule 15(c) of our Rules of Civil Procedure, 16 A.R.S., which reads as follows:

'15(c) Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the origianl pleading.'

The quoted portion is the same as Federal Rule 15(c). In the words of one authority,

'* * * Rule 15(c) is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitation are intended to afford.'

(3 J. Moore, Federal Practice § 15.15(3), at 1025 (2d ed. 1968)). (Footnote omitted).

An authority from the State of Missouri, Miller v. Werner, 431 S.W.2d 116 (S.Ct. 1968), seems at first blush to lend rather precise support to respondents' position and the trial judge's ruling to the effect that a later-pleaded battery action based upon lack of informed consent does not relate back to the time of filing of a complaint for negligence in the performance of an operation. Upon investigation, however, it appears that although Missouri has adopted the essence of many of the Federal Rules, including other portions of Federal Rule 15, it did not adopt the 'relation back' principles of Federal Rule 15(c). See Missouri Revised Statutes §§ 509.490, 509.500 and 509.510 (Vernon 1952). The Miller case was accordingly decided on the previously settled missouri rule that in order to defeat the bar of limitations, the cause of action stated in the amended complaint must be provable by the same evidence, and seek a recovery based upon the same measure of damages as the cause of action set forth in the original complaint. The Miller court held that the later-pleaded lack of informed consent claim was not provable by the same evidence as the negligence claim because the former related to matters which took place prior to surgery. Professor Moore indicates that 'mechanical rules' such as those applied by the Missouri court should be rejected in applying Rule 15(c). 3 J. Moore, Federal Practice § 15.15 (3), at 1032 (2d ed. 1968).

Respondents also cite Ericksen v. Wilson, 266 Minn. 401, 404--405, 123 N.W.2d 687, 689 (1963), in which the court found 'additional justification' for the trial court's denial of a motion made by the plaintiff toward the end of trial to amend his complaint to allege a technical assault based upon lack of informed consent in the circumstance that the statute of limitations had run since the filing of the original complaint, which had alleged only negligence in the medical procedure itself. The Ericksen case poses rather than answers the question now before us, because if the court there had been of the opinion that there could have been no relation back of the proffered amendment, as a matter of law, there was no need to justify the trial court's exercise of discretion in denying the amendment. In the present case, of course, petitioner was granted leave to file his second amended complaint alleging a battery based upon lack of informed consent.

But the respondents most urgently argue that the existing Arizona authorities require a determination of no relation back. At bottom, two propositions are relied upon. The first proposition, quoted from Baker v. Walston & Co., 7 Ariz.App. 590, 594, 442 P.2d 148, 152 (1968), is that 'An amendment does not relate back if it sets forth 'a wholly different legal liability or obligation. " Respondents also rely in this connection upon Smith v. Pinner, 68 Ariz. 115, 201 P.2d 741 (1948), which contains language to the effect that an amended complaint creating a 'new cause of action' will not relate back. For their second proposition, respondents rely upon Fiske v. Soland, 8 Ariz.App. 585, 448 P.2d 429 (1968), and Shetter v. Rochelle, 2 Ariz.App. 358, 409 P.2d 74 (1965), ¹ for the proposition that '* * * there is a fundamental difference between a battery action, based upon the theory of lack of informed consent, and a malpractice action.' Fiske v. Soland, Supra, 8 Ariz.App. at 587, 448 P.2d at 431. Respondents argue, and not without logic if the propositions themselves are altogether valid and pertinent, that the 'fundamentally different' battery action is founded upon a 'wholly different legal liability' and cannot therefore relate back.

Baker v. Walston & Co., Supra, takes its "wholly different legal liability or obligation" test from Simons v. County of Kern, 234 Cal.App.2d 362, 368, 44 Cal.Rptr. 338, 342 (1965). The Simons case, in turn, cites as its authority the California Supreme Court case of Austin v. Massachusetts Bonding & Ins. Co., 56 Cal.2d 596, 600--601, 15 Cal.Rptr. 817, 819, 364 P.2d 681, 683 (1961). But the Simons court appears to have misread the Austin decision, because the California Supreme Court in Austin equated or at least analogized the 'wholly different legal liability or obligation' test and another older 'wholly different cause of action' test, and held that their use or application '* * * in connection with the problem of relation back of amendments results in confusion and undue restrictions of the right to amend.' 56 Cal.2d at 601, 15 Cal.Rptr. at 819, 364 P.2d at 683. The Austin court, noting that Federal Rule 15(c) refers to 'claim' instead of 'cause of action', approved for its judge-made rule the principle that relation back will be allowed where '* * * recovery is sought on the same general set...