 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Porter v. Triad of Arizona9/3/2002
REVERSED AND REMANDED
James Porter, as personal representative of his deceased wife's estate and acting on behalf of his minor children, appeals the trial court's judgment dismissing the wrongful death complaint he filed on behalf of the children against Triad of Arizona, Inc. and Dr. Eric Mann. Porter contends the trial court erred in concluding that the two-year statute of limitations for wrongful death actions barred his complaint on behalf of the children for the 1994 death of their mother allegedly due to Dr. Mann's malpractice. Because we conclude that the minority tolling statute applies to a minor's wrongful death claim, and consequently that the complaint was timely filed, we reverse the judgment dismissing the complaint and remand for further proceedings.
BACKGROUND
The relevant facts are undisputed. On August 16, 1994 at Triad's Paradise Valley Hospital, Dr. Mann treated Mary Jane Porter for hypokalemia, which is potassium depletion. She was released from the hospital with medications, but was readmitted two days later after suffering a cardiopulmonary arrest. She died on August 20, 1994, survived by her husband, a son age 8, and twin daughters age 6.
In March 1995, in California Superior Court, Porter sued the manufacturers and sellers of a diet tea alleging that the tea caused or contributed to his wife's hypokalemia. In 1998, expert witness physicians in that case expressed the opinion that Dr. Mann's medical treatment fell below the applicable standard of care and contributed to Mary Jane Porter's death. The jury returned a defense verdict in the California case in August 1998.
On January 14, 2000, Porter filed this wrongful death complaint in Maricopa County Superior Court on behalf of his three minor children. The complaint alleged medical malpractice on the part of Dr. Mann in his treatment of Mary Jane Porter, causing or contributing to her death. The complaint further alleged that Triad was vicariously liable for Dr. Mann's negligence.
Dr. Mann filed a motion to dismiss the complaint, in which Triad joined, arguing that the two-year statute of limitations for wrongful death precluded the claim and that the minority tolling statute was inapplicable. The trial court agreed, granted the motion to dismiss, and following further proceedings entered a final judgment to that effect. Porter timely appealed.
ISSUE
At the time relevant to the events of this case, Arizona Revised Statutes ("A.R.S.") § 12-542 (1992), the limitations statute, provided that a cause of action for wrongful death had to be brought within two years after the claim accrued, with accrual ordinarily being the date of death. However, A.R.S. § 12-502 (1992), the minority tolling statute, provided that the running of a limitations statute was tolled for the claim of a minor during the period of minority, with an exception not applicable here. In 1973, Division Two of this court construed these statutes together with A.R.S. § 12-612(A), dealing with the proper parties to a wrongful death action, and in Gomez v. Leverton, 19 Ariz. App. 604, 509 P.2d 735 (1973), held that the minority tolling statute did not apply to the wrongful death claim of a minor. The issue we must decide is whether Gomez correctly concluded that the legislature intended that the minority tolling statute should not extend to a wrongful death claim.
ANALYSIS
We begin by setting forth the relevant statutes, highlighting those portions that pertain to our issue. A.R.S. § 12-612(A), as it existed when Mary Jane Porter died in 1994, described those who were entitled to bring a wrongful death cause of action:
Page 1 2 3 4 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|