Little v. State of Arizona (CA2 9/30/10)

This malpractice claim ran afoul of the notice-of-claims statute.

Little’s daughter was a University of Arizona basketball player who died suddenly of a pulmonary embolism in 2005. At her memorial service a tv reporter who wanted to make a documentary asked for permission to look at her daughter’s medical records. Having done so, in July 2007 he filed with her permission a complaint with the Arizona Medical Board (what we used to call the Board of Medical Examiners) alleging that a Campus Health Service doctor, and others, had been negligent. (He then got Little to agree to pay him 10% of any settlement obtained from her daughter’s death.) The Board issued a letter of reprimand in February 2008. Little gave notice of her claim in May 2008, then sued.

But the statute (§ 12-821.01) requires a notice of claim within 180 days of the accrual of the cause of action, which is when the plaintiff knows or should know what to sue for and whom to sue. The trial court dismissed; this opinion affirms.

Little made two arguments. First, she argued that her cause of action did not accrue until the Medical Board ruled. But the reporter’s Board complaint made extensive allegations of detailed negligence, arrived at after his consultation with four doctors. Since the tv reporter was her agent his investigation was her investigation and she had his knowledge as a matter of law. So the cause of action accrued when the Board complaint was filed (or, probably, earlier than that but this analysis does not require a more exact date since the notice of claim didn’t come for another year).

Little then argued for equitable estoppel and tolling. The State’s insurance adjuster had opened a claim file after the death and Little implied that the adjuster had been responsible for some delay in obtaining medical records. But that was speculation and, in any event, by the time of the Board complaint the medical records had long since been obtained. Little also wanted more time because two lawyers had refused her case, allegedly without investigating it. But only “extraordinary circumstances” equitably toll, not “a garden variety claim of excusable neglect,” even assuming that there was anything wrong with what those lawyers had done. (One of them turned her down – in September 2007 – because she had missed the filing deadline. The State’s fallback position was that the cause of action accrued then. The court says that it doesn’t consider that argument since it had already upheld the trial court’s conclusion of an earlier accrual.)

In a footnote the court mentions another argument: the doctor had a duty to tell Little that he or some other doctor might have committed malpractice. The court says that it doesn’t consider this argument because Little had not “adequately developed” it. The court then considers the argument, saying that regardless of what the doctor did or didn’t do Little had all necessary information by the time of the Board complaint. Guys, this doesn’t do much to discourage throwaway arguments. In a case like this the lawyer isn’t saving his bullets for the Supreme Court; if it were worth worrying about on review he’d have shot it at you.

Little’s lawyer also tried to incorporate by reference everything he’d argued in the trial court. That doesn’t work, as the opinion points out it a footnote.

And what, we hope you’re asking, about that tv reporter?  The opinion doesn’t say that anything happened to him or that anyone even reported him for anything. Typical. A private adjuster trying to help settle someone’s insurance claim is an evildoer while a tv reporter moonlighting as a medical-malpractice investigator/evaluator and filing, on behalf of another for a 10% cut, a malpractice claim (that’s what the opinion correctly says –  the Board complaint “was essentially a malpractice allegation"’) is a fine fellow assisting a bereaved lady.


(link to opinion)