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

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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)

Ochser v. Funk (CA1 9/28/10)

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THIS OPINION HAS BEEN VACATED

In this wrongful-arrest case the majority and the dissent agree that the law was clear to the arresting officers and then argue back and forth, for fourteen pages each, about what the law was.

Maricopa County Sheriff’s deputies arrested Ochser on a child-support warrant that turned out, unbeknownst to the Sheriff, to have been quashed. Ochser had a copy of the minute entry quashing it but the deputies didn’t look at it; instead they basically called their office and were told that the warrant was valid. So he sued them under §1983, alleging violations of the fourth and fourteenth amendments. The trial court granted summary judgment for the deputies; the Court of Appeals affirms.

Federal authority gives officers a qualified privilege to arrest on a facially-valid warrant. Ochser argued that they had an obligation to review readily-available objective information; his “expert” witness agreed with him. Federal authority says that if the warrant is facially valid then the officers have no duty to inquire further. That could have been enough to resolve the case but the court, which seems to have been following the briefs, uses a two-step qualified-immunity analysis from a U.S. Supreme Court case that a later Supreme Court case says isn’t necessary (as this court admits in a footnote).

The first question in the analysis is whether a constitutional right has been violated. It takes the majority a page, and two footnotes, to decide that jailing someone on an invalid warrant violates his rights. Or it apparently does, as the analysis never really reaches a conclusion. The real point of it seems simply to be that the first part of the two-step test shouldn’t be confused with the second.

Which is whether the right was “clearly established” such that “a reasonable official would understand that what he is doing violates that right.” The court concludes that it was objectively reasonable for the deputies to rely on the processes of the Sheriff’s office in checking the warrant. It distinguishes on their facts various cases that found no qualified immunity.

The dissent disagrees that those cases should be distinguished and therefore concludes that the law clearly established that the officers should have looked at – and, presumably, assumed to be valid – Ochser’s minute entry. The majority responds that those cases are, too, distinguishable and that the dissent relies on cases from the First and Third Circuits, not the Ninth or the Supreme Court.

The dissent beats the majority on footnotes, if nothing else, 8-5.

(link to opinion)

Nielson v. Hicks (CA1 9/21/10)

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As we’ve said before, people file motions like this because they know that, once in a while, one of our trial judges will actually grant one. But you do sometimes have to wonder how they talked even their own client into believing.

The Nielson’s were injured when their plane hit a power line near the St. Johns airport. They sued St. Johns, the local power company (Navopache), and the Maricopa County firm that designed the airport, filing the case in Maricopa County. Navopache moved for change of venue to Apache County, arguing that the action concerned real property (i.e., it alleged that the power poles were in the wrong places in the ground) and therefore had to be brought where the property was (12-401(12)). The trial judge granted the motion. Plaintiffs then got a stay (from Apache County) and filed special action. The Court of Appeals accepted it and reversed. (The court treats this as a special action from Maricopa County so it isn’t clear if the case ever got to Apache County or, if it didn’t, how Apache County came to enter an order in it.)

12-401(12) deals with such things as title, possession, mortgages, rents, “and all other actions concerning real property.”  Under the doctrine of ejusdem generis “all other actions” means all other actions in which real property is the subject matter or basis of the action, not in which it is peripherally involved. When there are both tort and real property claims then the property venue may take precedence (Amparano) but the subject matter of this Complaint was personal injury, not real property.

The opinion is only eight pages long but does manage to include four footnotes, so it meets the CA1 style guidelines.

 

(link to opinion)