Rodriquez v. Manoil, 1

• Decision Date: 26 February 1969
• Docket Number: No. 1,CA-CIV,1
• Parties: Nick G. RODRIQUEZ and Mercey Rodriquez, his wife, Appellants, v. L. L. MANOIL, Appellee. 516.
• Court: Arizona Court of Appeals

Page 737

450 P.2d 737

9 Ariz.App. 225

Nick G. RODRIQUEZ and Mercey Rodriquez, his wife, Appellants, v. L. L. MANOIL, Appellee.

No. 1 CA-CIV 516.

Court of Appeals of Arizona.

Feb. 26, 1969.

Rehearing Denied March 26, 1969.

Review Denied April 22, 1969.

Jestila & Holroyd, by Donald D. Holroyd, Phoenix, for appellants.

Jennings, Strouss, Salmon & Trask, by W. Michael Flood, Phoenix, for appellee.

CAMERON, Judge.

Plaintiffs, husband and wife, brought an action against the defendant physician for malpractice. The trial court granted defendant's motion to dismiss based upon the statute of limitations, § 12--542 A.R.S., and the plaintiffs appeal.

We are called upon to determine whether the complaint stated sufficient facts which would toll the statute of limitations so that plaintiffs' action was timely filed.

The complaint of the plaintiffs alleges that during the month of October 1961 the defendant performed an operation on the plaintiff-wife known as a 'cholecystectomy'. Because of the alleged careless, unskillful, and negligent conduct of the defendant the operation was improperly performed. About two weeks later defendant referred the plaintiff to another physician, a specialist, for corrective surgery. The complaint alleges that the plaintiff has suffered permanent injury and 'staggering' medical expense. The complaint further alleges:

'That plaintiffs had no knowledge of defendant's negligence except from the defendant himself and that the defendant concealed said information from the plaintiffs; that the plaintiffs did not acquire information and knowledge as to defendant's negligence until the month of July, 1964; and that such knowledge and information as to defendant's negligence was obtained from another physician who was at that time treating her condition and who has since treated said condition.'

The complaint was filed 24 March 1966 over five years after the conduct which forms the basis of the plaintiffs' complaint, and over nineteen months after plaintiffs' alleged discovery of the negligence. The applicable statute of limitations reads in part as follows:

' § 12--542. Injury to person; * * * two year limitation

'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. * * *'

Until recently, the majority of cases have held that the statute of limitations for medical malpractice runs from the time of the alleged negligent act and not from the time the negligence is discovered. Vaughn v. Langmack, 236 Or. 542, 390 P.2d 142 (1964). But see Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966). As was stated in the Arizona Law Review:

'Statutes of limitations are designed to 'promote justice by preventing surprises through the revival of claims that have been allowed to slumber until the evidence has been lost, memories have faded, and witnesses have disappeared.' In the majority of jurisdictions, malpractice actions, including those involving a foreign object left in a patient's body, are governed by general tort statutes of limitations. In recent years, though, seventeen states have enacted statutes dealing specifically with malpractice, of which several allow the patient a designated period in which to file his claim after he discovers or reasonably should discover, the negligence; whereas others provide that the statute begins to run when the negligent act occurs.

'In states where there is no specific statutory provision, the courts have found difficulty resolving when the limitation period commences. Most courts have decided that the statute begins to run, not at the time when the patient discovers or has opportunity to discover the doctor's negligent act, but at the time the negligent act occurs.' 7 Arizona Law Review 156, 157 (1965).

Our Supreme Court has discussed this matter in Acton v. Morrison, 62 Ariz. 139, 155 P.2d 782 (1945), and as follows:

'Finally we consider the question presented whether or not this action is barred by the statute of limitations. Had ...