Kenyon v. Hammer

Jr., KENYON, surviving William A. Baby Kenyon,

father of his Girl own

behalf, and for and on behalf of Sharon Kenyon, surviving

D. mother of

Baby Kenyon; Kenyon Girl D. Sharon Kenyon, Jr.,

and William A. wife and

husband, Plaintiffs-Appellants

, v. HAMMER,

Raymond M.D., E. and Jane Hammer, wife,

Doe husband and

Defendants-Appellees.

No. 17141-PR. Arizona,

Supreme Court

En Banc.

Sept. 19, 1984.

holding opinion which follows are entirely based on state constitutional grounds; authority federal cited guidance purpose of because it reach. Michi- compels result which we gan Long, 103 S.Ct. U.S. L.Ed.2d FACTS Leonard, by Clancy Leonard & James J. Kenyon pregnant with Mrs. became her Jr., O’Melia, Clancy, Kenneth P. Michael J. in first the late fall of 1971 and came child Phoenix, plaintiffs-appellants. for November, under Dr. Hammer’s care Sanders, Teilborg, Haga by & Parks During the Kenyon’s course of Mrs. Bruno, Parks, J. Robert Frank A. Steven pregnancy, a routine blood test revealed Plitt, Nielson, Phoenix, Kathleen A. for de- blood, negative that she had Rh but one of fendants-appellees. Dr. erroneously Hammer’s nurses marked her chart Bouma, indicate that her by type & Wilmer John blood Snell J. Rob- normal, Gibson, Jr., positive. was Rh A healthy J. child Longino, ert Preston H. positive Phoenix, with Rh blood was delivered on for amicus curiae Arizona Medical July 1972. If Dr. Hammer had Ass’n. known Kenyon negative that Mrs. had Rh blood he Langerman, Begam, by Lewis & Marks RhoGAM, drug would have administered Amy Revis, Langerman, G. William B. - suppresses response the immune Phoenix, for curiae amicus Arizona Trial negative may develop which Rh mothers Lawyers Ass’n. positive the Rh blood cells their child. effective, To drug the must be adminis- FELDMAN, Justice. seventy-two tered within hours after deliv- wife, Kenyon, William A. Jr. and his ery positive of an infant with Rh blood. Kenyon (plaintiffs) D. brought Sharon drug Failure to administer increases against Ray medical response the risk of the immune and the M.D., (de Hammer,0 E. mond and his wife consequent subsequent pregnancy risk to fendants). Defendants moved for summa by approximately ten times. Since Dr. ry judgment. granted The trial court by Hammer was misled the information on judgment motion and entered for defend chart, drug was not administered. appeals ants. The court of reversed Kenyon Mrs. did develop immune re- petitioned this defendants court for review. sponse ability and her to bear additional presented by operative issue facts was, therefore, substantially children im- whether for statute limitations paired. Kenyon Mrs. was unaware of this § (A.R.S. 12- medical actions development. 564(A)) is constitutional as this years Over five after the birth of her granted case. We review because of child, again first Mrs. Kenyon became legal importance question. of that Ariz.R. pregnant. She was delivered a second 23(c) Civ.App.P., Rule 17A A.R.S. After April child baby 1978. The second granting parties review ordered the was stillborn as a result destruction briefs, supplemental set for file the matter by of its cells blood the mother’s Rh anti- argument permitted amici oral several bodies; prevent in order to such future Id. Rule 23(f). brief the issue. We tragedies health, protect and to her own opinion appeals, vacate the of the court of Kenyon ligation. Mrs. underwent tubal (App.1983), P.2d 1016 judgment year of the trial April reverse the court On one after child, delivery plaintiffs violates Article hold statute second filed complaint against 13 of the Constitution. That Arizona two count defendants. (emphasis at 1020 142 Ariz. at Both counts are based Dr. Hammer’s agree. original). do not negligence liability alleged vicarious recording Mrs. incorrectly of his nurse in general is a A.R.S. 12-542 during Kenyon’s Rh factor which, adopted, applied to all limitations complaint pregnancy. I of the Count wrongful death no matter what claims for sought damages wrongful death of for the underlying claim. the nature of the recovery baby; sought II Count part malpractice legisla- 12-564 is including those Kenyon, for Mrs. legislature in enacted the state tion pregnancy, associated with her second perceived malpractice cri- response to a sterility. ligation and the resultant tubal Broomfield, 116 Ariz. sis. Eastin v. and, in the Defendants moved to dismiss (1977). Enacted later than alternative, summary judgment moved statute, wrongful death it was intended of the com- ground on the that both counts as a remedial act malpractice stat- plaint were barred response to the difficulties which the medi- § 12-564(A). limitations, A.R.S. ute of experiencing in profession cal was obtain- agreed, granted summary trial court and malpractice at ing insurance. Id. in of defendants on both judgment favor can conceive of no reason P.2d at 752. We counts. legislature why the would have intended apply remedial measure to to mal- such a THE WHICH STATUTE APPLIES TO inju- practice where there had been claims DEATH CLAIM? malpractice where ry, but not to claims death. It is true that there had been There are two statutes of limitations § applies to actions that it 12-564 states wrongful may to the which wrong- not mention “injury” and does for general death claim. The first is the stat- However, statute is death claims. ful applies wrongful death ute which to all 5.1, 12, Chapter entitled part of Title provides claims which that an action Relating To Health Care.” The “Actions wrongful death accrues at the date of chapter, 12- first statute in the A.R.S. years death is thereafter. barred two to the applicable definitions contains § 12-542(2). argues Plaintiff A.R.S. “ chapter provides that a ‘cause entire complaint I the was therefore Count malpractice’ means an of action for medical years timely it was filed within two since against injury action for or death a licensed baby’s date of the death. Ac- from the Thus, provider____” the word health care § 12-542 is the knowledging that A.R.S. § 12-564(A) regard “injury” used in with applicable general statute of limitations period limitation for “medical mal- to the claims, argues, defendant wrongful death practice” actions includes “death” as an nevertheless, malpractice that all medical “injury.” death, claims, injury or whether for specific provisions of governed analysis compels the This us to conclude § 12-564(A), provides that a applicable period A.R.S. which limitation to both that the bodily injury Kenyon action for medical claim of Mrs. “cause of the provider ac- against wrongful licensed health care death claim for the death of and, in injury Kenyon baby ...” is set forth A.R.S. crues as of the date of B, C, 12-564(A), {id., provides that a cause of subsect. exceptions certain with for medical must be D) thereafter. De- action years three & is barred years three “from the meaning commenced within that whatever fendant claims injury.” date of complaint, filed injury,” the of “date of the act, negligent years after seven DID THE COMMENCE TO STATUTE ap- is malpractice statute untimely if the AT THE DATE OF INJURY OR RUN appeals held that the plied. The court THE DATE OF THE NEGLIGENT wrongful by the death governed ACT? 12-542) (A.R.S. and that the mal- § 12-564) argues (A.R.S. applies to Defendant that it was the inten- practice statute equate “date of wrongful death.” tion of “injuries, actions Landgraff equate negligent injury” “date injury” with “date of the act,” Thus, negligent “date of the urges thereby stat- with act.” defendant creating of repose.” a “statute Their anal- expired years ute three on from date ysis justi- intent writing which the the chart well nurse erred or, fied, latest, compelling years there are reasons that at the three date militate urged by the construction which the doctor failed administer pointed out in DeBoer v. As correct, defendant. If RhoGAM. defendant Brown, supra, a cause of action cannot be wrongful death claim been would have brought inju- until occurrence of some baby before barred was conceived and Id. ry. 673 P.2d at 914. Kenyon’s bodily injury Mrs. claim would § 12-564(A) To construe A.R.S. to bar all possibly have been barred before she could years three after the date actions injured. have discovered that she had been negligent act rather than after the date Acknowledging that this harsh result require holding injury would in the wording of not mandated the stat death case that statute ran and the ute, defendant contends that issue was action was barred before could have been Landgraff Wagner, decided in 26 Ariz. brought indeed, before the victim was — App. (1976), in which the permitted This result has conceived. appeals court of held that the words “date See, e.g., Carter v. Har- some states. injury” predecessor present to the tenstein, 248 Ark. 455 S.W.2d 918 § 12-564(A) interpreted should be (1970), appeal dismissed for want of a sub- as the date on which negligent act question, stantial federal 401 U.S. occurred. Landgraff does state such a 868, (1971) (wrongful S.Ct. 27 L.Ed.2d 800 conclusion, Landgraff, as in most death); Rosenberg v. Town North Ber- cases, negligence produced contempo had 190, (1972); gen, 61 N.J. 293 A.2d injury. raneous In the case at bench there Co., Machinery Johnson v. Star 270 Or. long was a hiatus between the time of 694, (1974) (wrongful 530 P.2d 53 death and, negligence case, at in the least death a products liability action barred in con- the time at injury which occurred. We Bear, text); Josephs v. & Burns 260 Or. recently noted that Landgraff should not 493, (1971) damage); 491 P.2d 203 (property broadly be read urges. as as In defendant Heating, Yakima Fruit v. Central Brown, v. DeBoer 168, 170-71, (1972) (property Wash.2d (1983) 673 P.2d we held that damage); but see v. Refrig- Condit Lewis Landgraff proposition stands for the Co., eration Wash.2d 676 P.2d regard intent with to the Fruit). (1984) (possibly limiting Yakima predecessor the.present 12- cases, however, These are often decided on 564(A) discovery previ was to limit the rule premise right an ac- ously adopted in Mayer v. Good Samari damages protected for is tion Hospital, tan Ariz.App. 482 P.2d legislature may, and that constitution (1971), appeals where the court of held therefore, define, abrogate abolish and accrued, that a medical action long rights impunity such with so as it acts began run, and the statute on the date Machinery Johnson v. Star reasonably. reasonably victim discovered or Co., Or. at 57. have discovered that he or she had should contrary by many A view is taken states. injured by negligence the treat part, For the most these are states which ing physician.1 “open provisions contain court” in their contend, nevertheless, that in provisions Defendants constitutions. typically Such re- enacting present quire provide statute the “open” courts to be and See, language remedy e.g., adopt injury. I, broad used for intended Art. speaking Mayer, supra. rule in the re- rule In tion set forth opinion, adopt of this the formula- mainder Inc., R.I., § 21, neering Company, Constitution; I, 471 A.2d Alabama Art. Florida Constitution; Constitution; Kentucky agree with the words §I, Art. Wyoming Constitution.2 court: South Dakota many such states courts view Our constitution ... solid core open requirement court as prem- all our state laws must be which every provide remedy the state for some Clearly unequivocally, our con- ised. Hall, legally recognized wrong. Saylor v. stitution directs that the courts of this 218, 222 (Ky.1973); Daugaard 497 S.W.2d open injured shall be to the state Cooperative Building Sup The Baltic unable this oppressed. We are to view Association, (S.D. ply 349 N.W.2d 419 as a echo to constitutional mandate faint 1984). In these states so-called “statutes ignored. skirted or Our constitution of accrual time fix the repose,” which protections provide greater is free (even negligent act time required our citizens than are under no can though injury occurs and action no constitution____ Our constitu- federal statute has ex brought until after the duty to spoken, has and it is our tion open held to court pired), are violate listen. Coop Daugaard The Baltic provision. locked bolt and are a dead sup [The statutes] Association, Building Supply erative are on our doors. We shackle courtroom ra.3 unwilling to couch [these statutes] open provision, Arizo- of an court Instead portends language which their wishful specific stronger re- na has a more effect somehow constitutional. §18, 6, provides quirement. Art. as fol- nullification statutes [These] lows: stamp citizens’ causes of out our of action to recover they before accrue. abrogated, injuries shall never be Cooperative Baltic Daugaard the'amount recovered shall be sub- Assoc., Building Supply 349 N.W.2d ject any statutory limitation. at 425. view, In our a cause abolition of of action provisions of occurred, specific Given the injury before and thus before than stronger the Arizona brought, the could have been is abro- Constitution — Hall, regulation.4 Saylor in v. gation, open not court the Constitu Florida, supra; Kennedy Engi- v. Dakota, Cumberland Caroli- tion of South North provision it- "open court” and the to mothers. condition 2. The of such The manifested origin damages may age puberty. have its in the sue for self after the child reached the Sullivan, Magna Long year v. & product liability Carta. The act contained a ten Lankford 996, (Ala.1982) (quoting Hagerty, repose, 416 So.2d 999 statute of which was held unconstitu- Coleman, Am. v. Fund Ins. Co. 394 open Fireman’s provision); tional under Florida court J., 334, (Ala. 1980) (Shores, So.2d ring), concur Sirmons, Overland Co. v. 369 So.2d Construction Howard, Runney citing The Road from Hall, (Fla.1979); Saylor 225 572 497 S.W.2d at mede, Coke, 2 Institutes. (the application purported limitation statutes destroy in such manner as to of action cause "unconstitutionally 3. The locked the statute legally permissible it if it before exists is not [plaintiffs] op door before had an courtroom destroys constitutionally protected right portunity open Daugaard, to it.” 349 N.W.2d at action); Sears, Co., Heath v. & 123 Roebuck Demag 424. See abo: Jackson v. Mannesmann (1983) (quoting Car- 464 294 N.H. A.2d (Ala.1983); Corp., 725 435 So.2d Lankford Maurer, Builders, supra.); Phillips v. son v. ABC Sullivan, Long supra (right Hagerty, & to Inc., cases); (Wyo.1980) (collecting P.2d 821 611 damages recognized by cause of action Barmag Corp., App. Bolick v. American N.C. open provision; court common law Alabama (1981), 284 S.E.2d and af- modified abrogated actions firmed, (1982). N.C. 293 S.E.2d 415 legitimate purpose); social Diamond v. absent Sons, (Fla.1981) (a Squibb E.R. & 397 So.2d 671 appeals; 4. was also This the view of the court of many containing case factual similarities to indicated Article § would forbid bench; plaintiff had case at mother been treated urged by at interpretation defendants. 142 during pregnancy. drug with DES was at 688 P.2d offspring later to cause cancer in female found na, Kentucky and Alabama —we When her doctor failed to administer Rho- believe any seventy-two statute which GAM within hours bars a cause of birth child, legitimately Kenyon’s physical action before it of her first Mrs. could changed brought abrogates condition for the worse because rather than limits the sig- ability her bear other children was cause of action and offends Article nificantly impaired. She became more sus- Thus, of the Arizona Constitution. if. ceptible just problems those give 12-564(A) were later A.R.S. the inter- If occurred in the case bench. the nurse pretation which defendants contend was days had realized the error four after the legislature, meant we would be first child and birth called Dr. Ham- forced to declare statute unconstitu- problem, mer’s attention to the he would give tional. We.need the statute Kenyon have been bound to advise Mrs. interpretation an wording permits— for its the error and to her have warned of the points opposite even toward —the result. risk of pregnancy. suscep- future Greater hold, therefore, We used in the tibility physical recog- harm been present (A.R.S. 12-564(A)) statute “date nized damage as an element Arizona. injury” injury means date on which Lines, Freight Southwestern Ltd. v. negli- occurs and not the date on which the Floyd, 249, 264, gent If, here, act occurs. as is the case if Certainly, Kenyon had Mrs. patient injury suffers at some time after known of her condition and consulted coun- act, negligent it is the date of the child, shortly sel after the birth of her first injury which determines the accrual brought an action could have to recov- cause of action and it is that date which ability er for the decreased begins running of the statute of limita- bear children or increased fa- risk fetal Thus, tions. the statute of limitations tality. ability That decreased increased began this case to run Mrs. Ken- susceptibility damage which will sustain yon’s bodily injury on claim the date on a cause of action in tort. Olson v. St. which she injury. suffered some theOn Valley Inc., Hospital, Croix Memorial claim, wrongful death began (1972); Wis.2d 201 N.W.2d run on the date on which the child suffered Lines, Freight see also Southwestern Ltd. injury.5 some The cause of action was Brown, Floyd, supra; cf., DeBoer v. filed in the years case at bench within two supra (where change there no condi- from the Kenyon baby date the con- “injury”). tion and we found no § 12-564(A) ceived. Since A.R.S. allows years three injury, date hold, therefore, that Mrs. Ken wrongful death action is not barred. yon injury July an sustained of 1972. dismissing trial court erred in that count of is, therefore, That the date which complaint. § 12-564(A) began parties run. to The con cede Kenyons did know of the not DID WHEN INJURY OCCUR TO injury did and not become aware of it until MRS. KENYON? delivery the of the second child. At oral argues Kenyon argument Plaintiff that Mrs. re- urged concept defendant the that until, earliest, injury ceived no at the the this an injury. was not undiscoverable conception baby. Up by her second until are persuaded argument. that point, according nothing that plaintiff, practical standpoint, to From a ex we cannot happened had the pect patient require statute of limitations a physician to to the begun disagree. had to up reports run. We deliver laboratory patient so the permit 5. The record does not us to injury determine whether a tort will lie for or death the whether damaged fetus viable the time it was to a fetus before or after it becomes viable. We response resulting question autoimmune also do not reach the a whether may pursued from the failure to administer RhoGAM. We death action though even personal thus do not reach the issue a injuries of whether fetus deceased’s action for or "person" before after it becomes viable a or barred before his death. 76 compare against

can them the doctor’s CONSTITUTIONALITY —DISABILITY § 12-564(A) chart to determine if information has been BY CREATED correctly transposed. expect Nor can we argues statute Plaintiff that a which patient look at the slides and ascer- though even bars a cause of action laboratory correctly tain whether has not know cannot victim does discover findings. recorded the far as So the record unfairly exists injury that an discriminates shows, physical symptom there was neither claimants, against malpractice plac- medical abnormality any type nor which could ing a or disability them under burden have alerted even the most careful individ- subject- are not which other tort claimants ual to the fact she had some that suffered discovery ed. true that doctrine It is therefore, view, injury. injury In our this applied generally adopted was both undiscovered undiscoverable Mayer v. Good tort in actions Arizona. careful, diligent even a individual. Hospital, supra6. The Samaritan statute (ante Nevertheless, p. 965) the as noted does, therefore, treat medical was to abolish the dis- intent favorably less other claimants than claim- covery or set rule limit it to situations recognize, ants this issue. We (C) 12-564(B), (D), in A.R.S. none out course, legislature may make rea- applicable to this So of which case. acknowledge, sonable classifications. We § 12-564(A) interpreted, bars Mrs. A.R.S. also, claims are different claim, bodily Kenyon’s injury unless present from most other tort actions and is for some reason found constitu- statute unique evidentiary problems which tionally infirm. have raised and Plaintiffs period justify a shorter of limitations than parties argument. have briefed view, however, other claims. In our tort squarely We are faced with constitu- analysis support type issues. this will not tional Indeed, (1970) (insured’s alleged survey a of Arizona tort law indicates action based on discovery adopted agent transferring a negligence that the great rule has been of his cover variety Hawkins, of situations. claims which age); Ariz.App. Marsh v. 7 437 (cases might qualify malpractice cases (1968) (action process against P.2d licensed duty some which defendant breached owed summons); server for false return of service of plaintiff by special relationship) a virtue of Co., Lyon v. Great American Insurance Ariz. discovery recognized: rule has been Yazzie (1967) (statute App. 422 P.2d 724 limita Tenner, (9th Levy,Kaplan Olney, & 593 F.2d 100 surety begin against did not tions a contractor’s law; Cir.1979) (applying Arizona statute of limi negligent act but to run at time of rather at by plaintiff on tort can be tolled s tations claims occupancy discovery time of the owner's giving reasonable failure to discover facts breach). discovery In most cases rule claims); Denburgh, to those Sato v. Van rise judicial holding a has been as matter of (action (1979) against an Ariz. accountant); 599 P.2d 181 12-542, § action, under the of A.R.S. Buckley, Long general applying tort statute (claim against lawyer); (App.1981) P.2d requires years the action to filed within two Diethrich, 617 P.2d 30 Russo simply rule is after it "accrues.” (cause surgeon); (App.1980) of action judicial the word “accrues.” construction of Dodge Corp., Ariz.App. Phelps Lederman v. exceptions general The two tort statute of (cause (1973) of action and § limitations are 12-564. discovered, plaintiff accrued at the time fraud course, latter, governs malprac medical act); have the fraudulent or should discovered product pertains while the tice actions former Walker, Ariz.App. Walker v. liability imposes repose (in actions and a statute of (1972) against guardian an action ward conversion, begins except negligence time claims based on or breach to run from knew, known, wrongful warranty. express Except have Death ward should for the Stat Smith, act); 12-564, Abernethy Ariz.App. only ute tort § A.R.S. is the statute (1972) injuries (point which become at P.2d a which contains definition of the important determining the is in when "accrues"; manifest by accomplished trigger this is term accrues); against physician the of action cause injury” ing the the in the statute on "date of Co., Trust Title Insurance & Nielson Arizona action stead of the date which the "accrues.” (cause (1971) Ariz.App. of P.2d 853 plaintiffs It difference in is this treatment company negligent against for mis a title action discriminatory. find funds); Badger Mu appropriation of Gibbons Co., Ariz.App. Insurance tual question. First, in claim that foreign statute we note that action the a involves type claim not patient’s of asserted does determine object body, in the was left legal classification. This statute does foreign object is tolled until is statute claims, to all apply not it Id., should have discovered. or sub- applies provi- to those from the which arise (B). The rule is sect. also re- § health sion of care services. A.R.S. 12- cases where defendant has tained 561(2). Thus, malpractice claims asserted Id., misrepresented or facts. concealed accountants, lawyers, against engineers (C). subsect. A different rule is professionals given and other different age seven”; “injured minors under of Second, more favorable treatment. cases, such begin the statute does not special treatment is not determined until years run the minor becomes seven bench, nature the claim. In the at case Id., (D). age or dies. subsect. example, nothing there is about The statute discriminates several other commonly that falls claim within the ac- ways. general pertaining The statutes cepted conception “malpractice.” tolling all tort and contract claims contain negligence profes- act of did not involve applicable when the defendant judgment, special training, sional skills or outside the state at time the cause only a clerical or mechanical error in § (A.R.S. 12-501) action accrued transposing information to office chart. person entitled to where the ac- quite clear; type The statute is it is not the minor, tion was a unsound mind or im- special of claim which determines treat- prisoned (A.R.S. at the time accrual ment, it identity person of the § § 12-502). Presumably, A.R.S. against whom it A is asserted. provisions inapplicable renders these against claim asserted an unlicensed health against those who assert a a claim licensed provider care is not covered provider.7 health care § (see and, 12-561(1)) therefore, A.R.S. within the rule of Mayer v. Good Samari- Hospital, supra. tan if not Even CONTENTIONS malpractice variety,

true claima falls with- special Plaintiffs contend that against the statute if it is made a li- less favorable treatment accorded them un- health provider censed care and is “based § provi- der A.R.S. 12-564 violates several upon” the alleged negligent defendant’s They sions of the Arizona Constitution. care, conduct “in the rendering of health contend, first, is a there violation of the medical services ... or other health related “Equal Arizona Protection” clause which § 12-561(2). Therefore, service!.” A.R.S. reads as follows: apparent it seems imposes that this statute granting any No law shall enacted be special upon very burden limited class citizen, citizens, corporation class of tort have claimants —those who claims municipal, privileges other than or immu- against providers licensed health care which, terms, upon nities same shall matters based provider’s rendi- equally belong all citizens or cor- § (A.R.S. tion of health care 12- services porations. 561(2)), though legal even stand- point actually prop- the claims § Constitution, Arizona Article erly denominated as “malpractice claims.” Plaintiffs also claim that the statute de- prives property them of their “without due addition, the statute discriminates in- law,” process of in violation of Article ternally among types of the various claims § 4. Finally, they claim that providers. barring licensed health care shall, the cause of action general rule is that before could be as- years three “from the date abrogation commenced serted statute offends the (see 12-564(A). However, ante, injury.” 9). A.R.S. if of Article clause B, C, injury except provided event 7. "In no shall the time for commencement in subsections 12-564(A).' legal years action exceed three from the date D.” 78 Court, Supreme equal protection

We believe the issue is narrow areas dispositive.8 involving classifications such as those upon gender illegitimacy based and EQUAL PROTECTION —STANDARD See, e.g., Superior Michael M. v. birth. OF REVIEW County, Court 464, Sonoma 450 U.S. parties agree All methodology appro- 1200, (1981) 101 67 (plu- S.Ct. L.Ed.2d 437 priate to determine whether the statute Lalli, Lalli rality v. opinion); 259, 439 U.S. equal protection. violates There are three 518, (1978); 99 58 L.Ed.2d Reed v. S.Ct. 503 available tests to determine the constitu- Reed, 71, 251, 92 404 U.S. S.Ct. 30 L.Ed.2d tionality equal protec- act under an (1971). uphold 225 To statute under analysis; tion is to the task here determine test, this the court must find the state’s appropriate standard of review. “important” to be and the interest means adopted to serve that interest to be “rea- urge adopt that we Defendants sonable, and arbitrary” “having a not fair analysis “rational basis” test. This allows object relation substantial to the greatest leeway legislature; up to the it legislation” persons that all so similar legislative imposes regulation holds “shall treated circumstances be alike.” not burdens on one class but another so Reed, supra, 76, Reed v. 404 U.S. 92 (1) long legiti as court can find some (quoting Royster Guano Co. v. S.Ct. at 254 mate state to be interest served Virginia, 412, 415, 560, 40 S.Ct. 253 U.S. (2) legislation permit the facts 561, (1920)). applying L.Ed. 989 In this 64 legislative court conclude that classi intermediate test courts must examine legit rationally fication furthers state’s assumptions carefully more the factual Kelly, v. interest. State imate 111 Ariz. the asserted connection be- underlie 181, 184, 720, (1974), cert. 723 526 P.2d adopted means tween the denied, 935, 1143, 420 95 S.Ct. 43 U.S. goals which it seeks to achieve. Wren, v. (1975); 411 Uhlmann L.Ed.2d 97 Redish, Legislative Response to the Medi- 366, 388-90, 113, 128-29 Malpractice cal Insurance Crisis: Consti- (1965). Under this “rational basis” test the Implications, 55 Tex.L.Rev. tutional equal requirement protec constitutional (1977). “only tion is violated if the classification grounds wholly rests on irrelevant to the urge proper anal Plaintiffs objective.” achievement of the state’s ysis applied scrutiny” is “strict to be 420, 425, v. Maryland, McGowan 366 U.S. discriminatory test. this method a Under 1101, 1105, (1961). L.Ed.2d 81 S.Ct. 393 upheld only if there is a statute test, applying accept this the courts to be served “compelling state interest” relevancy so determination regulation "necessary” is reasonable, long though may it is even it See legislative objective. San achieve disputed, opposed by debatable Independent District v. Antonio School Vance strong contrary arguments. Rodriguez, 411 U.S. 93 S.Ct. 93, 111-12, Bradley, S.Ct. U.S. Downs Ari (1973); Arizona L.Ed.2d 16 (1979); 949-50, 59 L.Ed.2d 171 State Foundation, 130 Ariz. zona Horsemen’s Arnett, P.2d (1981). P.2d This applied analysis usually is so strict regulation. cial Defendant intermediate test is or economic A second and “means-scrutiny analysis.” should not be here contends known as the properly confined to those cases in yet this test under considered We have imposes a burden It been fol which the Arizona Constitution. (e.g. classification race reli- occasionally by “suspect” the United States lowed guaran- position covery the constitutional concurring opinion takes rule offends 8. The disagree implicit does not with this guarantee in Article so tee. The author abolition the dis- view. substantial gion) impinges or upon and action limits a “funda- vidual from state is citizen (Defendant’s right.” mental 3.) wholly arbitrary or irrational. at brief argues Defendant further that there is no California, 444 U.S. Martinez v. State of suspect classification involved in this case 277, 282, 100 62 L.Ed.2d 481 S.Ct. rights” “fundamental factor rights exists when the affected are Thus limits of within wide federal “explicitly implicitly guaranteed by the law, process create, states free due to constitution.” San Independent Antonio define, regulate limit and tort law. This School District Rodriguez, 411 U.S. at give principle ordinarily legisla would our 33-34, 93 S.Ct. at 1297. latitude, that, except wide ture unlike most states, We believe parties legislative prerogative that counsel for the in Arizo and the correctly various amici have na is limited our own expressly organic identi- Indeed, fied and characterized the law. Arizona Constitution is available stan- unique provisions regarding dards for almost in its agree review. We with them equal provisions protection prod tort law. These were the issue in the case representatives at of a of bench cannot be uct battle between resolved absent deter- mining which and cattle interests on the one hand mination of standard applied. is to be Further, progressive and so-called ele we labor believe that the classification The McGinnis, See ments on the other. deal with in this case does not Organized on Labor the Mak suspect Therefore, affect a class. determi- Influence of ing (1930) the Arizona Constitution nation of the standard of to review be of (Master’s Thesis; Ariz., Univ. available dependent upon analysis is an Arizona); Dept. Archives, at State of right nature of the bring an action Bakken, The Arizona Constitutional Con recovery of damages. right If that is vention 1978 Ariz. St.LJ. 2-3. “fundamental,” the strict scrutiny analysis applied. right must be If the is not “funda- first, provisions The relevant in include mental,” one of the lesser standards is general provision lieu of a requiring applicable. proceed, therefore, to con- “open,” specific courts tó be pro- clause right sider the nature of legal hibiting abrogation of “the of action recovery damages. damages to recover pro- ...” and further

viding that “the amount recovered shall subject any statutory be limitation.” IS THE RIGHT TO RECOVER DAMAGES §18, provision Article 6. second is BODILY FOR INJURY A FUNDA- protection” Arizona “equal clause con- MENTAL IN RIGHT ARIZONA? §2, Third, tained Article the recov- rights by theory creation tort is ery damages again protected fol- law; primarily a matter of state the state lows: may rights, provide such create defenses to No law shall enacted this state them, regulate them except that once limiting damages the amount rights have been created and vested causing injury recovered for the death or arbitrarily abrogate the state any person. them. §2, Article 31.9 fashioning State’s interest its [T]he is paramount own rules tort law So immunity that tort could not be estab- interest, any except labor, federal discernible lished contract as a condition of an perhaps protecting provided: interest the indi- the constitution "limiting prohibition oversight, 9. The laws not the result of but derives from hard-fought waged death amount of be recovered” for battles floor of appears injury in both Article 6 and constitutional convention of 1910. An examina- 2, 31§ Article of the constitution. Article 18 is tion of the debates is in order. Both of the present article and Article 2 "Labor" the “Declara- constitutional are drawn Rights." apparent duplication Proposition tion of This 50 which was introduced Kingan’s adopted (appar- amendment was Id. (Dem. by delegate vote) Co- the convention Parsons ently voice and the convention ad- chise, original lawyer). proposition read: The journed day. until the next Id. hereby proposed: It is again On November 18th the convention con- no law shall be enacted in this State That special Proposition sidered 50. interests of limiting damages of to be recov- the amount general provision a labor were transformed into causing injury any of ered for person. Any death or persons. to cover all The intent of the conven- agreement [made contract or clearly tion was right to extend benefits of the right by] any any employee to [to] waive "accidents, injury to or death” recover for damages causing or for the death in- recover persons. to all delegates The battle between the labor jury any employee shall be void. of majority and the convention was (on Proposition State file in the Arizona again joined Proposition on November 22nd. Library; prior bracketed material was inserted ("A Proposition Employer’s Relative to Lia- floor). being Ap- proposition to debated on the bility”) was introduced and debated. Sections 3 initially parently proposition to was referred ("[n]o by right waiver contract of to recover Judiciary on but was later con- the Committee valid”) damages under this Article shall be and 5 proposal. proposi- a labor When this sidered as (“[t]here statutory shall be no limitation of the tion, primarily employer-employee sit- aimed damages amount recoverable as in such cases of uations, was first considered on the convention injury by as death or accident are described in Delegate lively sparked a Frank- floor debate. Article") Section 1 of this which would have (Dem. Maricopa, lawyer State Su- lin and later Proposition concept employ- limited the of 50 to Justice) spoke preme on the Court Chief first situations, by er-employee rejected were matter: by replaced Propo- the amended convention and made I think that this measure should be not Journal, on vote of 27 sition 50 a roll call to 19. only employees persons, include but other to 1910, 22, Afternoon Sess. 10-11. November as in of a Should the case railroad accident. Again the in the debate indicated that remarks persons employees as be not other well as sweep protect section to have broad to was protected? would like on the I a little advice persons, just injured injured all not laborers in matter. occupations. Id. certain of Journal of the Constitutional Convention employer's liability proposition When the 1910, 1, [Journal], Morning November again reached the convention on December 5th by echoed dele- Sess. 18. This sentiment was gate (now proposition propo- Section 3 former (Dem. Maricopa, lawyer, former Jus- Baker 88) again amended the motion sition Supreme tice of Territorial Court and later (Dem. merchant): delegate Yavapai, Cunniff Court): Supreme Justice of the State like to offer an amend- Mr. Cunniff: I should why everyone, ... would like to know I right “The action to ment Section 3: not, employee should not be whether an or damages injuries for shall never be recover accident, protected in the matter death or abrogated, the amount recoverable shall injury? only I would not favor the measure statutory subject to limitations.” never protection employees as a but I would Yavapai sheepman]: Mr. Jones I [a [Dem.] persons may make it cover all who be includ- second the motion. accident, persons ed in were an such —where prevailed. The motion accident, subjected injury, as death or Journal, p. was no December 7. There railroad accident. debate. Id. Pima, delegate (Rep. point Kingan Id. At this convention, Through propo- of the lawyer) the course rose: provision to serve following 50 had evolved from amendment "In sition ... to offer the amended, parochial that stood of labor to one Proposition in line interests No. 50 one, words, delegates’ three, expression belief as an page alone strike out on damages guaran- right for by any employee’ four that a of action and in line same 'made words, the,’ persons. particular 'causing References to in- tee to all page, out the to strike cross-references to other employee.[’]" contexts and any dustrial [and ‘]of Id., original removed so labor article were pp. sections the abrogation” provision Baker asked where 18-19. clearly responded "no would that the language from. Parsons had come fact, protect all. Wyoming its broad intent Constitution. reflect it was from Cochise, completely (Dem. original lawyer) proposition 50 was Cunningham Delegate changed by delegate Cunniffs substitution proposition: original explained intent Const.). (which This now Art. which that this was a measure We understood attention, escape for he later employer Cunniffs did only where the cases considered Proposition as revised for this moved employee were concerned adopted by be included as Sec- steps the convention any to amend it take we did reason rights origi- "a others, article as tion 31 of the declaration as we took it to include already having compilation", it matter of adopted to cover intended proposition was nal Journal, corpora- December in Article 18. employees of certain were those who tions, prevailed apparently p. motion might Amendment be. case as the Thus, Id., Night Art. Sess. both voice vote. [should be] Pima from gentleman the adopted. today appear in the 6§ and Article §31 not, abrogation but none have the any [employer] It do shall unlawful provisions cited above from other the Ari- require employ- of its ... servants or We find zona Constitution. these authori- employment, a condition their ees as ties, therefore, of little assistance deter- otherwise, agreement any contract or mining nature of the an whereby [employer] shall be such ... Arizona. We do discharged liability released or note, however, that even in the absence of personal in- responsibility account Supreme such Court of New juries be received Hampshire although concluded that employees or in the ser- servants while right injuries to recover for was not “fun- ..., by employment vice reason of the or important it was “an damental” substan- negligence [employer]---- of such Maurer, v. Carson right.” tive 120 N.H. §18, judicial Article 3. To limit interfer- 925, 931-32, 825, (1980). 424 A.2d damage actions, following the ence with applied court therefore the intermediate provided: was a requiring showing test of a “fair and contributory negligence The defense relation”; being substantial unable to find shall, all assumption of risk cases relation, portions such a it held of the New whatsoever, question be a of fact and act, Hampshire including the shall, times, jury. at all to the left limitations, special statute violated the § 18, provision only Article 5. not This equal protection clause of the state consti- prevents taking the from court the issue tution. jury by from the means of directed verdict Supreme recently The Montana Court procedure, prevents or other the court considered a statute which discriminated instructing jury they on what ordinary between tort claimants and those must they do if find the defense estab- against governmental with claims entities. Rocha, Layton by v. lished the facts. §II, Noting that Article of16 the Montana 444, (1962). guaranteed persons Constitution that all provisions regarding damage Other actions given “speedy remedy every inju- ... for pertain by were included and to actions ry person, property character,” employees against fellow servants and em- right held court to recover tort §§ 18, ployers. See Article 4 & 7. damage guaranteed by was the constitu- Numerous cases from tion and was “fundamental.” White v. other states have State, 1272, problem Mont. 661 P.2d considered now before us and Applying a scrutiny analysis, strict right bring have held an action provisions court held that damages recovery for is not fundamen compensable which limited components Those tal. cases have thus injury, including physical pain and suf- usually upheld rational basis test and have fering, violated the equal state’s protection legislation question. such as that here in guarantee and were void. See, Wagner, e.g., Anderson Ill.2d 558, (1979) 37 Ill.Dec. 402 N.E.2d 560 rulings states, Whatever the in other cases); Laughlin Forgrave, (collecting provisions intent of our constitutional can- (Mo.1968); Armijo Tan 432 S.W.2d 308 not at questioned. this date be scope dysh, 98 N.M. (App. P.2d guarantee provided by abroga- 1981). reaching § Some of states tion clause in Article 6 of the consti- open decision have court clauses and some tution a matter of importance was some er to limit the amount recovered the guarantees Constitution as proscribe fundamental legislation to the convention intended to people happened of Arizona. What abrogate to the first which would abolish or causes of ac- tion, compilation" clause abrogation of Article 6 in "the only since limits the readily art. appar- became 31 is amount recoverable but recovery allows no reading obvious, ent from a however, original the Journal. It all. This was Proposition intent of that the two proscribing abrogation were intended before the clause guarantee right. to suppose the same basic It fair added amendment. curtailing legislature’s pow- others, citizens, employees and to all tee place- Did days of statehood. early negli- action for “labor” article common law cause of clause in the ment of the por- extended guarantee In 1926 this court held gence. indicate compensation and compensation “new” workmen’s act to the the workmen’s tions of mandated liability actions employer’s (enacted legislature pursuant to the by the (Arti- the labor article sections of the other of the consti- requirement of Article §§ 8) guarantee or did the 7 & cle tution) they deprived void because were actions and common both such extend to common law injured employees their pro- The first negligence actions? law negligence ques- on that from this court nouncement they rejected had employer their unless was whether The issue came tion compensation of the workmen’s benefits enacted liability statutes employer’s Although injury occurred. statute before of 1913 6 of the Civil Code Chapter Title specif- was not such an election of remedies argued that It was constitutional. were §18, 8, the ically provided for in Article legisla- invalid because the statute legislature had argued that the defendant pur- injured workmen allowed had ture power regulate the common law inherent liability employer’s under the remedies sue Writing damages. cause of action negligence without law, imposed which court, Alfred Lock- an unanimous Justice defenses, common law restricted fault and in the follow- rejected that contention wood limit to recov- time set no at the same but ing words: pro- that due claimed ery. The defendant negligence true that the action of It is un- procedure a by such was violated cess one, its originally a common-law recovery was limited less the amount was, changed opinion, when in our status of benefits. adoption of a “schedule” §18, 6, [Quoting adopted. Article uncon- was not held that the statute court abrogation provision] language of the damages that the amount stitutional and preced- consideration with Taken into a limited to could not be be recovered to beyond ques- 4 and 510 it is ing sections provisions “schedule” because ‘right to recover of action tion that §18, Inspiration Consolidated Article 6. injuries ... mentioned damages for ...’ Mendez, 151, Copper 166- Co. v. 18, is the common-law article 6] [in dissent, 278, 67, 166 P. 284-85 and that negligence, interpre- argued for a narrow Justice Ross abrogation it was its prohibition tation, contending that the constitutional subject to one from its status as taken §18, did guarantee in Article contained imbedded legislature and of the the will apply the “new cause of action” to Constitution____ so, Nay, more in the liability employer’s under the law which compensa- last two for these [workmen’s passed pursuant to constitutional had been had liability employer’s tion and mandate, laws] apply only but was intended “to re- mandates only constitutional negligence, to in which the meas- actions part quired positive action on the according ure of were to be to the effective, 172, while the common law.” Id. at them to make rules of no 1183, Thus, negligence needed the action for argued 1184. Justice Ross P. aid, inci- principal employer’s liability law was a statutory and its liability, [and, unlike common law placed beyond “new dents were power prov- within the it was control. actions] regulate legislature to fix and ince of the negli- action of ... The common law 170, 1184. it.” Id. 166 P. at constitution, is gence, by the as modified ‘provided’ by that instru- now as much eventually be- of the dissent The view all, they em- for the ment of Article the law. came benefit of others, Employers’ ployees guáran- as are the apply to and construed to 6 were assumption abolishing tributary negligence of risk to fellow 4 and §§ [Article jury]. requiring to the defenses of con- be left servant doctrine Act, the constitution ly Liability Compensation different to hold Law or the to follow the employees, and no continue requires certain classes of also that we away right pur- procedure to and evi- pleading, statute can take same rules granting sue without elec- it reasonable in 1912. The latter existed dence that who, facts, tion all entitled required by the former proposition is to it. by any authority cited to us. recognized nor correctly basis Eastin rational Freight Hunt, Alabam’s Co. v. 29 Ariz. of the statute which 443-44, portions test to those (1926) (em- 242 P. right did not the fundamental Lily phasis supplied); affect Moseley see also Co., Ice Cream bring portion P. the action. We did consider a 38 Ariz. (1931) (holding right the “former of the statute which affected negligence common-law action for pursue requirement the action —the [is] one, constitutional $2,000 and that cannot be qua cost bond as a sine non Morrell v. abrogated by legislature”); proceeding an with the action after unfa- Phoenix, City P. screening panel. vorable decision from the (1915) J., (Ross, holding Arti- requirement We held that the bond violated §18, applied only rights “cogniza- cle “by denying the constitution access to the ble law” at the time the constitution was Eastin, indigents. courts” to 116 Ariz. at adopted; Franklin, concurred). J. 586, 570 P.2d at 754. We further held the requirement These cases should resolve the issue bond unconstitutional for non- acknowledge, they placed since defendants indigents because it “a heavier bur- must, right” gen- that a “fundamental Id. den access court.” [their] erally right “explicitly been defined as a Eastin therefore stands for the proposition implicitly guaranteed by the constitution.” that where the fundamental Independent San Antonio District School affected, pursue the action is this court Rodriguez, 33-34, U.S. at 93 S.Ct. at analysis. apply will not the rational basis however, argue, 1297. Defendants therefore, hold, right already this court We to has ruled that the mal- practice pursue act did bring not affect fundamental the action is a “funda rights should, therefore, governed be right” guaranteed by mental Article test, Eastin v. by citing the rational basis of the constitution and the other supra. Broomfield, disagree We with de- ante at 971. Therefore, cited provi analysis Eastin. Eastin fendant’s In 12-564, sions which discrimi act, upheld many portions of the but did against nate those with claims li not consider the statute limitations. providers censed health care as distin panel “screening” procedure, the admission claims, guished malpractice from all other panel’s findings of the evidence at internally and which also discriminate be trial, subsequent and the abolition malpractice tween classes of medical claim by upheld apply- collateral source rule were ants, be must tested under the strict scruti ing portions a rational basis test. These ny analysis. discovery The abolition of the statute do not affect the essence of malpractice rule for medical some claim lawsuit; right bring they fundamental to a only ants is valid if it compelling serves a merely regulate what with the ac- is done necessary state interest and is to the at brought prescribe tion after it is proceed, tainment of that interest. We procedure to be followed before trial and therefore, to consider these final two trial. See the admission evidence at points. Hospital Superior Phoenix General Court, (1984). 675 P.2d 1323 IS THERE A COMPELLING thing It is one to hold STATE INTEREST? guaranteed a cause of action is in the constitution, legislative free from control Plaintiff and amicus Arizona Trial Law- (Alabam’s Co., supra), Freight yers argue but entire- Association that there no was compelling legitimate has nor in- malpractice merely hysteria neither

real crisis but engendered by premiums charged providing in economic relief to a rise terest in one by companies. They by insurance segment society depriving claim those who to, the “crisis” neither real nor connected wronged of and reme- have access in Ari malpractice to results cases tried in dy system. hy- If such a by, judicial they argue zona. Alternatively, that even profes- any pothesis approved, once were real, longer if crisis no exists sion, industry experiencing dif- business and cannot be used as a basis to sustain beneficiary made ficulty could be unequal by treatment mandated special legislation designed to ameliorate support statute. Authority proposi adversity limiting access its economic Olson, found in Arneson v. is to be tion they have those whom dam- courts (N.D.1978) and Bouch 125, 136 270 N.W.2d aged. a system, our constitu- Under R.I., Sayeed, er v. A.2d guarantees gradually would erod- tional (1983). ed, no more than a until this state became Eastin, supra, In we described the evi- privileged and influen- playground for legislature at dence before the the time exactly this tial. believe what those the statute. We noted Spe- the enactment of designed prevent. guarantees were malpractice sharp insurance increase privileges cial and immunities are fa- as fol- premiums Arizona and concluded State, Ryan law. vored Arizona lows: whereby meri- By providing system view, therefore, equal under an our separated could be torious claims protection analysis compelling interest prior pre- the frivolous ones trial premi- in reducing of the state encouraged, trial settlements would found, all, if in the state’s ums must be legitimate promoted the Act making quality medical care interest purpose. public cost. to the at reasonable available (emphasis P.2d at 751 116 Ariz. at in the case at compelling state interest previous by our find- supplied). We abide found in the state’s bench can be partial, ing, note that abolition of decreasing of medical the costs interest in medical rule availability increasing the of medi- care or promoting relevance

claims little argued in the Assuming, cal as is services. frivo- discouraging meritorious claims of the Arizona Medical Associ- amicus brief ones, promoting nor in settlement lous 21), goal that this the broad (p. ation decreasing litigation. Nor do the cost of sought malpractice that the by the act and help in the statute the internal distinctions therefore, was, compelling, state’s interest why hard to envision sustain it. It specific proceed we to consider whether likely to year a six old child are claims of under is neces- statute here consideration those children more than be meritorious reach that sary objective. act under consideration seven. The over types discovery many rule for abolishes NECESSITY providers, care no health of claims requires con- necessity Determination of the claim. It is how meritorious matter “adjudi- may be of facts. These sideration legiti- compelling or even to find a difficult “leg- developed in the case cative” facts argued, be It interest in this. mate defined “estab- islative facts” are malprac- course, high premiums in that truths, pronouncements facts or that lished hardship on work an economic cases tice from case to case.” Bouch- change do therefore, that, special physicians supra. Sayeed, er v. (citing at 92 459 A.2d should be sustained of limitations 216, Gould, United States F.2d 219- health measure” for “relief necessary as a Evidence, (8th Cir.1976) McCormick, pre- doubt factual We providers. care 759, (2d 1972)). ed. 331 at impor- 328 at argument. More such an mise few, telling. The the state facts here however, believe that tantly, years. availability might statute has been in effect nine care which So tion shows, providers far as record premi- if health care occur some were have practice by high premi ums not declined and discouraged health care costs have question increased to the crisis point. ums. Id. The then whether We malprac- do know what discovery the cost the abolition of the rule is neces coverage tice patients’ sary malpractice premiums. adds individual It to reduce office, shortening costs in a doctor’s but a case recent has been held that the statute average indicates cost of in of care limitations to extent that claims are hospitals markedly California they reasonably has risen in barred before can per patient brought last decade. It rationally $217 is neither nor substan day 1975, had per pa- climbed to tially goal related to such a and is so unrea $547 day tient per patient in 1981 and arbitrary $620 violates the sonable day in 1982. equal protection American Bank and Trust provisions of various state 674, Community Hospital, v.Co. 33 Cal.3d constitutions. Schwan Riverside Meth 371, Cal.Rptr. 382, 301-02, 829, 300, Hospital, 660 P.2d Ohio St.3d odist (1983), rehearing 15, 1983, granted (1983)(holding June 452 N.E.2d opinion rehearing though 36 Cal.3d 204 even an action is (1984).11 Cal.Rptr. We not “fundamental” under the Ohio Consti figures tution, assume Arizona are lower but the statute’s internal classifications roughly comparable. Daily See Arizona age between minors above and below the Star, 2B; page June rationally “Health legit ten were not related to a Care Cost A Briefing legislative objective Containment: Pa- imate and thus violated per,” Staff, Research (B), Arizona equal protection);12 (C) House subsections cf. Representatives, 1984). (June, 14p. 12-564; Table (D), of A.R.S. Sing Clark v. support We are cited to no facts that er, 250 Ga. 298 S.E.2d idea that such increases are attributable to (1983)(finding “no rational basis a limi malpractice premiums. id., p. See 5. Sta- permits tation scheme which a medical mal Bank, tistics cited in supra, American in- practice wrongful pa death action if the malprac- dicate enactment years tient dies within two of the defend tice act California reduced the cost negligent ant’s act but which if bars [it] malpractice coverage by pa- per one dollar patient years lives for two then [and dies] per day. tient In light present of a cost ... where the defendant is a doctor but not per patient reduction, per day, $620 $1.00 cases”); wrongful Tafoya other death entirely even if attributable to the exist- Doe, (App. 100 N.M. act, ence of the insignifi- seems 1983) (treating a notice statute for claims problem. cant and irrelevant against the state aas statute of limitations holding equal protection was vio acknowledge that “actuarial uncer- lated when the notice statute was tainty,” aggravated by rule reasonably minors who could not premium base, and the narrow could con- expected injury to file notice of within one malpractice coverage. tribute to the cost of twenty days). hundred and In Schrader, Carson v. Harrison v. S.W.2d Maurer, supra, the court held: (Tenn.1978). Assuming, arguendo, that true, may this is it also be assumed that is invalid insofar as it [the statute] discovery the intended to halt the increase makes the rule unavailable to premiums malpractice malpractice plaintiffs in order to accom- all except medical plish goals reducing twin of the cost of those whose actions are based the patients preventing care to the discovery foreign object reduc- of a in- the rehearing granted, 11. Since we do Hospi- not cite 12. Schwan overrules Vance v. St. Vincent tal, (1980); legal authority, only St.2d the case as 64 Ohio N.E.2d 406 but as second- Inc., Marymount Opalko Hosp., ary see 9 Ohio authority the statistics cited. (1984) (saving N.E.2d 847 the St.3d re- statute). the mainder of however, only on not, rely au- jured person’s body____ We need [Our decisions] reaching a about thority in conclusion [discovery] made it clear ... relationship equitable lack of between rule and con- the fundamental goal which it was intended to and the underlying siderations to medi- parties agree The seem to malpractice achieve. generally, cal cases [citation Report the statistics contained such, legislature may As omitted]. of (cid:127) Medical Secretary’s Commission on Mal- discovery not abolish the rule with re- practice, supra at indicate that over sp'ect any of one class medical mal- malpractice injuries medical of all 88% practice plaintiffs. reported in claims are within which result at at 120 N.H. 424 A.2d years following injury, two first Hampshire The New Court also stated: reported all claims have of been 96% We also find unconstitution- statute] [the years, years within three within four 97% extinguishes tolling al insofar as it [the unreported are after five 2% provisions usually applicable to or minors 3; years. ATLA Amicus Brief at defend- legislature may incompetents]____ 17; see also S. supplemental ant’s brief at not, equal protection consistent with Polan, Pain and Law and S. Profit: principles, deny only this class medi- of Malpractice 122-23 (1978), Politics of malpractice plaintiffs protec- cal of quoting the National Association Insur- persons by other tion all afforded paid study of claims ance Commissioners statute, [tolling] [citation omitted]. through June of 1976. July of so, doing does not substan- [the statute] indicate to us that These statistics legislative object tially further of discovery rule is “long caused tail” in- containing the costs medical problem. If portion of the significant reparation jury system because required, certainty is re- prompt actuarial brought by number of claims the statute of limitations would duction of on behalf minors or mental incom- method have a much more rational small, petents comparatively [citation compelling interest achieving the state than time, same the statute At the omitted] discovery rule conse- abolition operates extinguish a cause of action abrogation of quent the few unusual plaintiff, due to his disabili- of which the where, knowledge claims because lack until ty, may not have learned after unable to disability, the claimant was period expired. stat- limitations within flat time limits. [The and discriminates unfairly burdens ute] provided No in the record and evidence malpractice plaintiffs, against medical any party cited none has been that it denies such and we therefore hold legisla- necessity of the support the would protection of the laws. plaintiffs equal between tive discrimination 936-37, (emphasis A.2d at 833-34 Id. injuries and undiscoverable claimants with Jenkins, supplied); see also they injured are sev- before those who California’s Compensation Injury Medical former and years age, en or between the Reform Challenge, Equal Protection Act: An are based whose actions those claimants Heath v. (1979); 960-61 object S.Cal.L.Rev. There are dis- upon foreign claims. Co., 123 N.H. at Sears, Roebuck & scrutiny tinctions, test but under the strict (holding that distinguishing fac- 464 A.2d at the mere existence permit- rule enactment sufficient and we are abolition tors is not liability product relationship repose necessary a statute ted to assume satisfy substantially goals. To related means and were not between actions standard, reducing prod- state must scrutiny of legislative objective strict necessary to since there was show that the statute is liability rates uct insurance interest; compelling one would state enactments achieve that such no evidence “necessity” is recently test described for in rates conse- a bring about reduction compelling statute furthers products). prices reductions quent “by interest sity legislative least restrictive means existed for enactment. Fainter, available.” Bernal practically problem “long of the may tail” which — U.S.-,-, 104 S.Ct. by discovery be created rule seems to L.Ed.2d 175 significance have been of little and much susceptible being by more handled other statistics, Given these and the lack measures, shortening such as of the stat- legislative adjudicative of either or record malpractice ute of limitations medical to demonstrate the effect that the abolition regulation premiums cases or of insurance discovery may rule malprac have on procedures, by than abolition of the premiums, tice we requisite cannot find the today discovery holding rule. Our does not showing that the discovery abolition of the power reg- take from the necessary rule was step achieve enacting by ulate statutes of It limitation. compelling state in reducing interest may well be that medical cost medical care increasing the avail claims, class, sufficiently aas different ability of such care. Under the strict scru from other claims or create such different tiny test such a showing must be found problems leg- social and economic that the legislative adjudicative facts and peri- islature set a different limitation not from hypothesis, speculation or “defer malprac- od for such claims than for other ence” to unspecified some legislative con tice general. claims or other tort claims in ception. Boucher Sayeed, supra. pur- Classification of claims limitation greater There is an even lack of facts poses traditionally been a support hypothesis that the abolition prerogative; prerog- we do not disturb discovery rule was the “least restrictive however, thing, ative. It is regulate one means practically available” to achieve the setting up classification in reasonable legislative goal reducing premiums, thus periods action, within which to an making medical costly services less thing and it is another special confer a more available. privilege upon one class of defendants assuming Even compelling effectively abolishing the opportunity for exists, therefore, hold, state interest those with even the most meritorious imposition of an absolute bar three claims to legisla- assert them. When the years from the of injury date on most —but latter, ture undertakes it impinges malpractice claimants, not all—medical upon rights guaranteed the fundamental general tolling provisions abolition of rec by our state constitution and it then be- ognized for all other tort claims and the duty comes the of this court to declare internal distinctions between classes such actions void under that constitution. malpractice claimants, medical all discrimi judgment among malprac nate the trial court medical is re- opinion versed. The infringes tice claimants a manner which of appeals court upon rights. fundamental 12- vacated. Thé case is remanded for fur- 564, therefore, equal ther protection proceedings opin- violates consistent with this (White State, supra) and we hold ion. §2, unconstitutional under Article pur the Arizona Constitution insofar as it J., CAMERON, concurs.

ports or limit the abolish rule Note: Vice Chief Justice FRANK X. GOR- in medical cases. The three- DON, did participate Jr. in the determi- year statute of limitations of A.R.S. 12- nation this matter. except 564 will remain in effect HAYS, Justice, specially concurring: courts of this state shall follow the dis Mayer v. Good covery rule as set out in I concur in the result reached Hospital, supra. Samaritan majority my reasoning is less convolut- emphasize holding perhaps simplistic that this more based ed than that in finding essence, majority that no demonstrated opinion. my neces- it is opinion an action is, constitution,

Arizona under our a funda- Const, § right. mental Ariz. 6. A art. repose

statute of limitations or which abro-

gates an action for even before reasonably arises or can dis-

covered is unconstitutional. court, Broomfield,

This in Eastin v. (1977), P.2d found

portion Malpractice of Medical Act re- bond, 12-567(K),

quiring a to be A.R.S. placed heavy

unconstitutional because

burden on access the courts and violated privilege and immunities clause Although

Arizona Constitution. the article applies equal

of the constitution cited (art. 13),

privileges and immunities

parallel apparent. holding the majority’s

I concur with three-year statute of limitations of will remain in effect ex

cept that courts of this state shall

follow rule as set in May out Hospital,

er v. Good Samaritan Ariz.

App. 482 P.2d 497

HOLOHAN, Justice, concurring: Chief special

I concur concurrence. Arizona, Appellee,

STATE of HUNTER, Appellant.

Michael Allen

No. 5466-2. Arizona,

Supreme Court of

En Banc.

Sept.

Case Details

Case Name: Kenyon v. Hammer

Court Name: Arizona Supreme Court

Date Published: Sep 19, 1984

Citation: 688 P.2d 961

Docket Number: 17141-PR

Court Abbreviation: Ariz.