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Schwartz v. Arizona Primary Care Physicians8/20/1998
DEPARTMENT D
Amended per Order dated 9-3-98
Appeal from the Superior Court of Maricopa County
Cause No. CV 96-03240
The Honorable William J. Schafer, III, Judge
REVERSED AND REMANDED
Diane and Joel Schwartz ("the Schwartzes") appeal from the trial court's dismissal of their medical malpractice action against Jeff Schneidman, as personal representative of the Estate of Lawrence E. Grass, M.D. ("Estate"), Lana Grass, the widow of Dr. Grass, and Arizona Primary Care Physicians ("APCP"), Dr. Grass's medical group. The trial court concluded that the Schwartzes improperly served process on the Grass Defendants and that their action against the Grass Defendants had abated. The court further denied the Schwartzes' request for relief under Arizona's savings statute, Arizona Revised Statutes Annotated ("A.R.S.") section 12-504, finding that the equities did not warrant such relief. Because we find that the Schwartzes' action had not abated, but rather that the error was one of insufficient process, we reverse the trial court's ruling and hold that the Schwartzes are entitled, as a matter of right, to refile their action pursuant to the mandatory provisions of the savings statute. We further note that, even if the trial court had discretion here, it abused its discretion in denying the Schwartzes the opportunity to refile their action.
BACKGROUND
In 1995, Diane Schwartz ("Diane"), a patient of gynecologist Lawrence Grass, was diagnosed with metastatic breast cancer. On February 23, 1996, the Schwartzes filed a medical malpractice action in Maricopa County Superior Court against the Grass Defendants and other health-care providers who had treated Diane. The Schwartzes alleged that Dr. Grass failed to timely diagnose and treat Diane's breast cancer. The Schwartzes did not serve any of the Defendants with this complaint, but instead amended their complaint to include additional health-care providers as Defendants.
After filing the first amended complaint on May 22, 1996, the Schwartzes hired a qualified process server to serve Defendants with a summons, a copy of the first amended complaint, and an amended certificate of arbitration. By June 5, 1996, all but the Grass Defendants had been served with process. Also on June 5, one of the other Defendants filed a Notice of Removal to the United States District Court for the District of Arizona. The Grass Defendants were served with the previously issued state-court process on June 10, June 18, and June 19, respectively.
While the case was pending in federal court, the Schwartzes and the Grass Defendants engaged in settlement negotiations. On November 19, 1996, the federal court granted the Schwartzes' motion to remand the case to state court, finding that the unanimity requirement of removal had not been met. On December 12, 1996, settlement Discussions not having resolved the matter, the Schwartzes asked all Defendants to file answers on behalf of their clients. The Grass Defendants responded by letter that the Schwartzes had "not properly served" them and, therefore, were not "entitled to request an Answer." In a letter dated December 20, 1996, the Schwartzes replied that they did not understand why the Grass Defendants considered the service insufficient, and enclosed copies of the affidavits of service on each of the Grass Defendants. The Grass Defendants did not respond to this letter.
On January 7, 1997, the Grass Defendants filed their Answer, asserting the defenses of insufficiency of process, insufficiency of service of process, lack of personal jurisdiction, and abatement. The Grass Defendants then participated i
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