Kopacz v. Banner Health, __Ariz. Adv. Rep. __, 1 CA-CV 17-0493 (App. Div. I, July 5, 2018) (J. Johnsen)
MEDICAL MALPRACTICE STATUTE OF LIMITATIONS NOT TOLLED BY PHYSICAL INFIRMITY/MUST SHOW ABSENCE OF SOUND MIND
Plaintiff suffered many complications following a catherization procedure and was in rehabilitation for a period of time following the surgery. She eventually filed suit on January 21, 2016 for alleged negligence during her December 21-23, 2013 hospitalization. The trial court granted the defendant summary judgment based upon the running of the statute of limitations. The Arizona Court of Appeals affirmed.
A.R.S. § 12-542(1) provides a two year statute of limitations for filing medical negligence claims. The date such a claim accrues is subject to the "discovery rule." Under that rule, a claim accrues when the plaintiff has reason to connect her injury with a "causative agent" such that "a reasonable person would be on notice to investigate whether the injury might result from fault."
When the "fact of injury is known but the possibility of negligence is difficult to discern," the cause of action may not accrue on the date the plaintiff learns of her injury. In such cases, a patient's knowledge of her injury alone may not give adequate notice of who caused it. In such a case, it is usually a question of fact as to when the statute of limitations accrued.
However, when a bad result occurs immediately putting a plaintiff on notice that malpractice may have occurred, the court may grant summary judgment on the statute of limitations as a matter of law. Such was the case here. Plaintiff knew, or reasonably should have known within four days of the catheterization that she had suffered a bad outcome and might have a medical negligence claim.
Plaintiff, however, argued the statute of limitations was tolled by submitting her and her daughter's affidavit stating she was “too ill to consider filing a medical negligence claim” for over a month following the procedure.
Under Arizona law, a statute of limitations is tolled if a would-be plaintiff is of "unsound mind" when the cause of action accrues. A.R.S. § 12-502 (2018). “Hard evidence of the lack of mental capacity to understand the potential for a medical malpractice claim is required to invoke the tolling statute. Mere physical illness or the claimed “inability to think” about the existence of such a claim, does not constitute hard evidence of an unsound mind, and thus does not meet this burden.