Kopacz v. Banner Health (CA1 7/5/18)

This malpractice case breaks no new legal ground but contains a practice pointer and illustrates a modern quirk of Rule 56.

Plaintiff had complications following cardiac catheterization by Defendant, resulting in surgeries and a stay in a rehab hospital. Her lawsuit came after the limitations period so Defendant moved for summary judgment. Plaintiff argued that the complications had rendered her unable to understand what was happening, tolling the statute. The trial court granted the motion.

The Court of Appeals affirms.

Mental disability may constitute “unsound mind” under the tolling statute (12-502). But the showing requires “hard evidence” of inability to manage one’s affairs or to understand one’s rights. Plaintiff submitted conclusory affidavits from herself and her daughter to the effect that she’d been too sick to consider suit. The court considers them insufficient, especially in view of “hard evidence” in the hospital records showing that Plaintiff was alert, oriented, and aware of her injury just a few days after the catheterization. (Was the court weighing evidence? Well, yeah; affidavits are either conclusory or not on their face, regardless of other evidence.)

Plaintiff argued that even if her evidence didn’t qualify her for “unsound mind” it at least triggered the discovery rule. But the discovery rule deals with when information revealing the cause of action was available. In this case that was shortly after the incident. Whether Plaintiff had the mental ability to evaluate it is an “unsound mind” question.

The take-away is that mental impairment caused by the tort can indeed extend the time for suit but you need some pretty clear evidence in the medical record, a good expert opinion, or both.

After the trial judge’s ruling Plaintiff asked for a more specific statement, arguing that the minute entry didn’t address an issue discussed at oral argument. Rule 56(a) says that the trial court “should” state the reasons for its ruling on summary judgment. This court’s minute entry said that the action had accrued on a particular date — which was more than two years before the Complaint — and that the action was therefore barred. The Court of Appeals says that “even if we were to interpret the word ‘should’ in Rule 56(a) as imposing a requirement — a proposition for which [Plaintiff] offers no authority” this minute entry was sufficient.

So the part about stating reasons isn’t a requirement and can be satisfied with a truism rather than a reason. And for once we’re not being sarcastic — that’s a reasonable and appropriate way to treat the sentence. Why, then, does it exist? Well, it didn’t always.

Once upon a time — long, long ago (i.e., when we started practicing) — a good trial judge would grant summary judgment with a minute entry that said “The motion is GRANTED.” The judges realized that since they could be affirmed for any available reason, to focus attention on a subset of reasons increased the chance of reversal. But that also had the effect of increasing appellate workload, and for the same reason: although review is de novo, both the parties and the court tend to consider primarily — and often exclusively — reasons given by the trial judge. And so the “should” sentence was insinuated into the law, as a way of narrowing review in practice but not in theory. (Those who did so presumably told themselves that they were increasing judicial efficiency, a standard excuse for cutting corners.)