Ramirez v. Health Partners of Southern Arizona, 2

Citation193 Ariz. 325,972 P.2d 658
Decision Date23 June 1998
Docket NumberNo. 2,CA-CV,2
Parties, 272 Ariz. Adv. Rep. 27 Lucinda and Gregory RAMIREZ, husband and wife, natural parents of Heather Lynn Ramirez, deceased, and Gregory Ramirez, Jr., brother of Heather Lynn Ramirez, deceased, Plaintiffs/Appellants, v. HEALTH PARTNERS OF SOUTHERN ARIZONA, Defendant/Appellee. 97-0083.
CourtCourt of Appeals of Arizona

PELANDER, Presiding Judge.

¶1 This case presents issues of first impression concerning the scope and constitutionality of statutory qualified immunity provided under Arizona's version of the Uniform Anatomical Gift Act (the Act), A.R.S. §§ 36-841 through 36-849. 1 Plaintiffs/appellants, surviving parents and brother of decedent Heather Lynn Ramirez, appeal from the trial court's summary judgment in favor of defendant/appellee Health Partners of Southern Arizona (HPSA) on their claims arising out of the unauthorized harvesting of bone from the decedent. We affirm.


¶2 Although the facts in this case are essentially undisputed, we view the evidence and reasonable inferences therefrom in the light most favorable to plaintiffs. 2 Prince v City of Apache Junction, 185 Ariz. 43, 912 P.2d 47 (App.1996). On March 22, 1995, decedent Heather Ramirez was ejected from a car during a single vehicle accident and taken to Tucson Medical Center (TMC), where she died of head injuries later that day. Shortly after her death, Barry Spencer, a social worker employed by HPSA and TMC, approached plaintiffs at the hospital, counseled the family, and discussed with them the possibility of organ and tissue donation. The family consented to donate certain tissues, and Spencer filled out a TMC form entitled "Consent for Anatomical Gift & Organ/Tissue Recovery" (the consent form). On that form, decedent's father indicated his consent to donating her eyes, skin graft, connective tissue, saphenous veins, and heart valves. Because one of the parents was not comfortable with the concept of bone donation, Spencer scratched out the form's designation for "Bone." Spencer also wrote on the form that the family wished "nothing disfiguring, family will want a viewing with a short sleeve low cut top." Both Spencer and Mr. Ramirez signed and dated the form.

¶3 Spencer then called the American Red Cross (ARC) regional services office in California and spoke to Anthony Schiavoni, a Donor Development Coordinator, who filled out and made notes on a "Donor Referral Information Sheet" (the ARC form) during their conversation. Neither Spencer nor Schiavoni recall the specifics of that telephone conversation. Spencer's regular practice was to read the information directly from the consent form. Based upon the substance of the telephone conversation, however, Schiavoni understood from Spencer that Mr. Ramirez had consented to the donation of decedent's bone as well as other tissues and organs. Therefore, Schiavoni wrote and checked "bone" on the ARC form.

¶4 After his phone conversation with Schiavoni, Spencer placed a copy of the consent form in the decedent's medical chart at TMC. From that point on, neither Spencer nor HPSA was involved in the tissue donation or procurement process. Schiavoni contacted Ben Headen, the Tissue Procurement Coordinator for the ARC Southern Arizona Tissue Services office in Tucson, and sent by facsimile the ARC form and several other documents to him. Headen then arranged to go to TMC to procure the donated tissues. He personally reviewed the decedent's TMC chart, which included the donation consent form, before harvesting any tissues. He took special note of the "nothing disfiguring" notation in the chart, but overlooked the lack of consent for bone removal. Headen and his team then harvested the heart, femur bones, and other tissues from the decedent on the evening of March 22. 3

¶5 When plaintiffs later discovered that bones had been harvested contrary to their specific request and the explicit notations on the consent form, they sued HPSA and ARC, claiming that the wrongful harvesting constituted battery, gross medical negligence, breach of contract, and intentional and/or negligent infliction of emotional distress. 4 HPSA moved for summary judgment, contending plaintiffs had failed to establish that HPSA had acted in bad faith, a requirement for liability under the Act. The trial court granted the motion, finding that plaintiffs had failed to produce "evidence to negate the [Act's] rebuttable presumption of good faith." This appeal followed.


¶6 On appeal from a summary judgment, we review de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law. Prince. Issues involving statutory interpretation and constitutional claims are questions of law subject to this court's de novo review. Id.; Little v. All Phoenix S. Community Mental Health Ctr., 186 Ariz. 97, 919 P.2d 1368 (App.1995).

¶7 Arizona has had statutes authorizing donations of body parts since 1954. 5 In 1968, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Anatomical Gift Act (UAGA). See Unif. Anatomical Gift Act (1968), 8A U.L.A. 94 (1993). The 1968 UAGA contained a good faith immunity provision, which the Arizona legislature adopted and enacted as § 36-847(C) in 1970. See id. § 7(c), 8A U.L.A. 124; A.R.S. § 36-847(C) (1970). That section (now § 36-850(C)), which remained unchanged in Arizona until 1996, provides in part: "A person who acts in good faith in accord with the terms of this article ... is not liable for damages in any civil action ... for his act."

¶8 In 1987, the National Conference approved a revised UAGA, which superseded the 1968 UAGA. See Unif. Anatomical Gift Act (1987) and historical notes, 8A U.L.A. 19, 29. The 1987 UAGA amended the good faith immunity section by providing in part: "A hospital, physician, ... technician, or other person, who acts in accordance with this [Act] ... or attempts in good faith to do so is not liable for that act in a civil action or criminal proceeding." Id. § 11(c), 8A U.L.A. 59-60. 6 That same year, the legislature expanded Arizona's immunity provision by adding § 36-849(F), including a presumption of good faith, which the UAGA does not contain. 1987 Ariz. Sess. Laws, ch. 131. That section (now § 36-845(E)) provides:

No hospital, person or entity is subject to civil damages or legal action as a consequence of good faith acts or omissions related to procurement of organs or tissue in compliance with this article. All acts and omissions are presumed to be in good faith unless the acts or omissions are done with intent to maliciously cause injury.

¶9 At the time of decedent's death, former § 36-849(C) (now § 36-845) required Spencer (as the authorized representative of TMC and HPSA) to "attempt to obtain consent to donate ... the gift of all or any part of the decedent's body for any purpose" prescribed in the Act. Similarly, former § 36-849(B) obligated Spencer to "notify an appropriate organ or tissue procurement agency [ARC in this case] within a period of time to permit a viable donation." Thus, Spencer's actions in approaching decedent's family, obtaining their consent for donation of certain tissues and organs, and then notifying and communicating that information to ARC were statutorily mandated. 7

¶10 As they did in the trial court, plaintiffs contend HPSA is not entitled to statutory immunity because Spencer did not comply with the Act, and questions of fact as to his good faith preclude summary judgment. Alternatively, plaintiffs argue that the Act's immunity provisions violate article 18, § 6 (anti-abrogation clause) and article 2, § 13 (equal protection) of Arizona's constitution. Because we decide cases on nonconstitutional grounds if possible, Little, we address plaintiffs' contentions in the order they present them.

I. Statutory Qualified Immunity

¶11 "The primary rule of statutory construction is to find and give effect to legislative intent." Mail Boxes, Etc. v. Indus. Comm'n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). We focus first on the statutory wording and, if it is ambiguous or inconclusive, we consider the statute's "context subject matter, historical background, effects, consequences, spirit, and purpose." Id. at 122, 888 P.2d at 780. In addition, statutes limiting common law liability must be strictly construed. Stramka v. Salt River Recreation, Inc., 179 Ariz. 283, 877 P.2d 1339 (App.1994); cf. Fidelity Sec. Life Ins. Co. v. State, 191 Ariz. 222, 954 P.2d 580 (1998).

¶12 Plaintiffs contend HPSA is not entitled to qualified statutory immunity because Spencer "failed to abide by the terms of the Act when he instructed the Red Cross to remove tissues which he admits he knew were not gifted." They assert that qualified immunity under §§ 36-849(F) and 36-847(C) is conditioned on the person acting "in compliance with [the Act]" and "in accord with [its] terms" respectively. According to plaintiffs, that qualifying language in the statutes means that any failure to strictly comply with the Act's terms, in this case Spencer's allegedly miscommunicating to ARC that decedent's bone had been donated, deprives the defendant of immunity and renders the issue of good faith irrelevant. We disagree. In our view, §§ 36-847(C) and 36-849(F) are intended to immunize good faith efforts to comply with the Act's mandatory procedures for obtaining and conveying donative consent.

¶13 Most claims alleging...

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