                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
             ARIZONA COURT OF APPEALS
                                 DIVISION ONE


LASHONNE HOWARD, the surviving mother of JORDYN ROSEMARY
 HOWARD, in her own right and on behalf of all statutory beneficiaries,
and as Personal Representative of the ESTATE OF JORDYN ROSEMARY
                     HOWARD, Plaintiff/Appellant,

                                        v.

     SCOTTSDALE EMERGENCY ASSOCIATES, LTD, an Arizona
 professional corporation; DOUGLAS J. SMITH, M.D. AND JANE DOE
     SMITH, a married couple; CASEY MICHELLE GOLAB, M.D.,
                          Defendants/Appellees.

                             No. 1 CA-CV 14-0824
                               FILED 2-18-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-052477
               The Honorable Michael D. Gordon, Judge

                                  AFFIRMED


                                   COUNSEL

Anapol Weiss, Scottsdale
By Larry E. Coben, Jo Ann Niemi
Counsel for Plaintiff/Appellant

Crawford & Kline, PLC, Tempe
By Bruce D. Crawford
Counsel for Defendant/Appellee Scottsdale Emergency Associates, LTD
Jones Skelton & Hochuli, PLC, Phoenix
By Eileen Dennis GilBride
Counsel for Defendant/Appellee Douglas J. Smith

Holden & Armer, PC, Tempe
By Scott A. Holden
Counsel for Defendant/Appellee Casey Michelle Golab



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1            LaShonne Howard, personal representative of the estate of
her daughter, Jordyn Rosemary Howard (“Decedent”), appeals from the
superior court’s judgments dismissing her claims with prejudice against
Scottsdale Emergency Associates, Ltd. (“SEA”), Dr. Douglas J. Smith, and
Dr. Casey Michelle Golab on statute of limitations grounds and denying her
motion to stay the proceedings to conduct additional discovery. For
reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On February 28, 2014, Howard filed a complaint against the
Scottsdale Healthcare Shea Medical Center (“the Hospital”) and various
other entities (none of which are parties to this appeal) alleging medical
malpractice, wrongful death, and a survival action. The claims stemmed
from services rendered to Decedent between February 26 and March 2,
2012, at the Hospital and other facilities. Howard did not name any
individual defendants, but instead asserted that the Hospital and other
entities were vicariously liable for the actions of the “medical personnel” at
the Hospital, who at all times were “agents, servants and employees of the
named defendants and were acting within the course and scope of their
employment.” The complaint generally alleged that all defendants
deviated from the standard of care and proximately caused Decedent’s
death, but did not name any specific acts or omissions committed by any
individual or individuals.




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     HOWARD v. SCOTTSDALE EMERGENCY ASSOCIATES, et al.
                    Decision of the Court

¶3           On April 10, 2014, Howard filed an amended complaint
adding as defendants SEA, Smith, and Golab, among others. The amended
complaint alleged that Smith and Golab were “agents, servants, employees
or independent contractors” of the Hospital and were acting within the
course and scope of their employment.

¶4             SEA, Smith, and Golab sought judgment on the pleadings
based on statute of limitations grounds, asserting (1) they were not named
in the original complaint, (2) the amended complaint was filed after the
expiration of the two-year statute of limitations, see Ariz. Rev. Stat.
(“A.R.S.”) § 12-542, and (3) Howard’s claims against them did not relate
back to the date of the original complaint under Rule 15(c) of the Arizona
Rules of Civil Procedure.1 Under Rule 15(c), an amendment to a complaint
relates back to the date of the original pleading if the claim asserted in the
amended pleading arose out of the same occurrence set forth in the original
pleading and the party to be brought in by amendment “(1) has received
such notice of the institution of the action that the party will not be
prejudiced in maintaining a defense on the merits, and (2) knew or should
have known that, but for a mistake concerning the identity of the proper
party, the action would have been brought against the party.”

¶5              Howard opposed the request for judgment on the pleadings
and asked for a stay to conduct discovery she claimed was necessary to
oppose Smith and Golab’s request. Howard admitted that Smith and
Golab’s names appeared in the Hospital’s chart (which her attorney had
reviewed before filing the complaint), but she argued that her failure to
include additional defendants in the original complaint should be excused
because she “had no reason to think that the nurses and physicians who
‘cared’ for [Decedent] were not hospital personnel.” Howard asserted that
after filing the complaint, another attorney raised the issue of the
employment status of the individual physicians who treated Decedent, and
that after this conversation, she filed her amended complaint naming Smith
and Golab individually as defendants. Howard argued that the mistake
regarding Smith and Golab’s status as staff physicians rather than
independent contractors was a mistake regarding “identity” that triggered
application of the relation-back rule under Rule 15(c).

¶6           The superior court denied Howard’s stay request and granted
SEA, Smith, and Golab judgment on the pleadings, finding that “the
putative mistake was not sufficiently related to the identities of these

1      Absent material revisions after the relevant date, we cite the current
version of applicable rules and statutes.

                                      3
     HOWARD v. SCOTTSDALE EMERGENCY ASSOCIATES, et al.
                    Decision of the Court

Defendants in order to invoke Rule 15(c).” The court entered judgment in
favor of SEA, Smith, and Golab—certified as final under Arizona Rule of
Civil Procedure 54(b)—and Howard timely appealed. We have jurisdiction
under A.R.S. § 12-2101(A)(1).

                               DISCUSSION

¶7           Howard argues the superior court erred in granting judgment
on the pleadings and in denying her motion to stay the proceedings to
conduct additional discovery. We review de novo the grant of judgment
on the pleadings, taking as true all well-pleaded facts of the complaint.
Mobile Cmty. Council for Progress, Inc. v. Brock, 211 Ariz. 196, 198, ¶ 5 (App.
2005). We view the facts in the light most favorable to the party against
whom judgment was entered. Napier v. Bertram, 191 Ariz. 238, 239, ¶ 1
(1998). We review discovery rulings for an abuse of discretion. Preston v.
Amadei, 238 Ariz. 124, 130, ¶ 15 (App. 2015).

¶8              Howard argues that her failure to name SEA, Smith, and
Golab in the original complaint was a mistake cognizable under Rule 15(c),
which requires a “mistake concerning the identity of the proper party.” See
Tyman v. Hintz Concrete, Inc., 214 Ariz. 73, 76, ¶ 18 (2006) (declining to
address a defendant’s knowledge of a lawsuit absent a showing of a
“‘mistake concerning the identity of the proper party’ in the original
complaint”). Howard bears the burden of proving the requisite mistake.
See id. at 77, ¶ 22.

¶9            “To decide whether a Rule 15(c)(2) ‘mistake’ has occurred, the
court must determine ‘whether, in a counterfactual error-free world, the
action would have been brought against the proper party.’” Id. at 76, ¶ 19
(citation omitted). “Rule 15(c)(2) requires a mistaken belief at the time of
filing that a defendant is appropriately named, as well as subsequent
discovery that there was a mistake in identification.” Id. at 77, ¶ 24.
“Because Rule 15(c)(2) requires a mistake concerning the identity of the
proper party, it plainly does not cover a ‘deliberate decision not to sue a
party whose identity plaintiff knew from the outset.’” Id. at 76, ¶ 21
(citation omitted); see also O’Keefe v. Grenke, 170 Ariz. 460, 465–66 (App.
1992) (noting that a “‘mistake concerning the identities of the proper party’
does not include a mistake of law by counsel regarding whom to name in a
lawsuit . . . where a plaintiff knows of the existence and identity of a
defendant before the statute of limitations runs, and makes a conscious
election about whom to sue”).




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     HOWARD v. SCOTTSDALE EMERGENCY ASSOCIATES, et al.
                    Decision of the Court

¶10          Howard does not argue that she named the wrong hospital
when she filed the original complaint, and she admits that the names of
SEA, Smith, and Golab appeared in the Hospital’s chart (which her counsel
reviewed before filing the complaint). Thus, Howard did not mistakenly
identify the Hospital, but instead neglected to name additional known
defendants, an error that is not excusable under Rule 15(c)(2).

¶11            Moreover, in naming only the Hospital as a defendant in the
original complaint, Howard did not put the physicians who treated
Decedent on notice that, but for a mistake concerning the identity of the
proper party, the action would have been brought against them. Although
a hospital may be liable for the actions of its employees, not every hospital
employee is liable for negligence attributable to the hospital. Thus, when a
lawsuit is filed against a hospital, individual hospital employees would not
necessarily know or have reason to know that “but for a mistake concerning
the identity of the proper party,” the action would have been brought
against the employee. See O’Keefe, 170 Ariz. at 466 (quoting Holden v. R.J.
Reynolds Indus., Inc., 82 F.R.D. 157, 163 n.6 (D.N.C. 1979) (“[W]hen the
plaintiff merely sues one joint tort-feasor or obligor, the missing party is
under no duty to speculate as to the reason plaintiff has not pursued
him.”)). And here, Howard’s complaint did not specify any particular acts
or omissions by any particular individuals that might, under different
circumstances, have narrowed the focus to particular employees.

¶12            Because Howard knew of the existence and identity of Smith
and Golab before the statute of limitations ran but did not sue them at that
time, the superior court properly found Howard’s failure to do so was not
a mistake in identity under Rule 15(c)(2). See Tyman, 214 Ariz. at 76, ¶ 21;
O’Keefe, 170 Ariz. at 465–66. And because no additional discovery would
have changed the fact that Howard knew the identity of SEA, Smith, and
Golab before filing her original complaint, the superior court did not abuse
its discretion by denying Howard’s motion for leave to conduct additional
discovery.




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     HOWARD v. SCOTTSDALE EMERGENCY ASSOCIATES, et al.
                    Decision of the Court

                            CONCLUSION

¶13           For the foregoing reasons, we affirm the judgments in favor
of SEA, Smith, and Golab. We award SEA, Smith, and Golab costs pursuant
to A.R.S. § 12-342, contingent upon their compliance with ARCAP 21.




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