                                   IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


                        LORENZA KOPACZ, et al.,
                           Plaintiffs/Appellants,

                                      v.

                         BANNER HEALTH, et al.,
                           Defendants/Appellees.

                            No. 1 CA-CV 17-0493
                              FILED 7-5-2018


           Appeal from the Superior Court in Maricopa County
                          No. CV2016-050010
               The Honorable Susan M. Brnovich, Judge

                                 AFFIRMED


                                 COUNSEL

Law Office of Donald Smith, PLLC, Glendale
By Donald H. Smith
Counsel for Plaintiffs/Appellants

Campbell, Yost, Clare & Norell, PC, Phoenix
By Margaret F. Dean
Counsel for Defendant/Appellee Banner Health

Quintairos, Prieto, Wood & Boyer, PA, Phoenix
By Vincent J. Montell, Rita J. Bustos
Counsel for Defendants/Appellees Raj D. and Sevitri Savajiyani
               KOPACZ, et al. v. BANNER HEALTH, et al.
                        Opinion of the Court



                                 OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.


J O H N S E N, Judge:

¶1             Lorenza Kopacz appeals the superior court's grant of
summary judgment, arguing the court erred by rejecting her contention that
her temporary inability to consider bringing a medical malpractice claim
tolled the statute of limitations. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On December 20, 2013, Kopacz, then 80 years old, went to the
emergency room at Banner Health, complaining of chest heaviness and
shortness of breath.1 The next day, Dr. Raj Savajiyani examined her and
told her she needed a cardiac catheterization, which he performed on
December 23 by accessing her right femoral artery and vein through an
incision in her right groin.

¶3           The hospital discharged Kopacz on December 25. A day later,
a nurse examined Kopacz at her home and discovered that subcutaneous
bleeding and swelling had developed around the incision site. The area
was soft and not tender to the touch, but the nurse told Kopacz and her
daughter to watch the area and call if the symptoms worsened. The next
morning, December 27, the same nurse examined Kopacz at her home and
found she was in severe pain in her hip and groin; the area around the
incision had become hard and painful to the touch, with severe
subcutaneous bleeding and swelling.

¶4           An ambulance took Kopacz back to Banner, where a scan
showed a large hematoma in her groin, thigh and buttock area and
indicated a possible pseudoaneurysm in her femoral artery. A surgeon
recommended surgery, but before the surgery could commence, Kopacz
began suffering additional complications, including cardiogenic shock and


1       We view the evidence in the light most favorable to Kopacz, drawing
all reasonable inferences in her favor. See Ochser v. Funk, 228 Ariz. 365, 369,
¶ 11 (2011).


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               KOPACZ, et al. v. BANNER HEALTH, et al.
                        Opinion of the Court

atrial fibrillation, and she was admitted to intensive care. She underwent
emergency surgery early the next morning to relieve the complications
from the hematoma that had developed after the catheterization.

¶5            Kopacz remained hospitalized until January 8, 2014, when
she was released to a rehabilitation center. She continued to receive
extensive wound care there until January 20, when she was readmitted to
Banner with severe sepsis and hypotension. She was discharged from the
hospital on February 1, but continued to have significant pain, and returned
to the hospital once again for five days in late February when she
experienced pressure in her chest. Her medical condition finally stabilized
between March and July 2014.

¶6             On January 21, 2016, Kopacz and her spouse filed suit against
Banner and Savajiyani and his spouse, alleging medical malpractice arising
out of her medical treatment on December 21 and 23, 2013. The defendants
moved for summary judgment, arguing that the two-year statute of
limitations applicable to Kopacz's claim under Arizona Revised Statutes
("A.R.S.") section 12-542(1) (2018) had expired.2 In her response and at oral
argument on the motion, Kopacz argued defendants breached the
applicable standard of care by failing to obtain her informed consent for the
cardiac catheterization. The superior court granted the motion, finding that
"the claim accrued no later than December 28, 2013," and therefore was
time-barred.

¶7            Kopacz timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2018) and -2101(A)(1) (2018).

                              DISCUSSION

¶8            We review de novo the grant of a motion for summary
judgment. See Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195,
199, ¶ 15 (App. 2007). Summary judgment is appropriate when "there is no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law." Ariz. R. Civ. P. 56(a); Orme School v. Reeves,
166 Ariz. 301, 305-09 (1990).




2     Absent material revision after the relevant date, we cite a statute's
current version.


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                KOPACZ, et al. v. BANNER HEALTH, et al.
                         Opinion of the Court

A.     Limitations.

¶9             A medical negligence claim generally must be filed "within
two years after the cause of action accrues." A.R.S. § 12-542(1). The date
such a claim accrues is subject to the "discovery rule." See Walk v. Ring, 202
Ariz. 310, 314-17, ¶¶ 14-26 (2002). Under that rule, a claim accrues when
the plaintiff has reason to connect her injury with a "causative agent" such
that "a reasonable person would be on notice to investigate whether the
injury might result from fault." Id. at 316, ¶¶ 22, 23; see also Wyckoff v.
Mogollon Health All., 232 Ariz. 588, 591, ¶ 9 (App. 2013) ("[A] cause of action
accrues when the plaintiff knew or by the exercise of reasonable diligence
should have known of the defendants' conduct.") (quotation omitted).

¶10             "[D]eterminations of the time when discovery occurs and a
cause of action accrues 'are usually and necessarily questions of fact for the
jury.'" Walk, 202 Ariz. at 316, ¶ 23 (quoting Doe v. Roe, 191 Ariz. 313, 323, ¶
32 (1998)). When the "fact of injury is known but the possibility of
negligence is difficult to discern," the cause of action may not accrue on the
date the plaintiff learns of her injury. Walk, 202 Ariz. at 314-15, ¶¶ 16-17. In
such cases, a patient's knowledge of her injury alone may not give adequate
notice of who caused it, rendering summary judgment inappropriate. See
id. at 314-16, ¶¶ 17-22. A medical provider, for example, may have
concealed or failed to disclose facts relevant to a possible negligence claim.
See id. at 315, ¶¶ 18-20 (citing Morrison v. Acton, 68 Ariz. 27, 30, 34-36 (1948)
(cause of action did not accrue when patient felt prolonged jaw pain after
tooth extraction but dentist had concealed fact that he had left a broken
piece of a metal surgical instrument embedded in patient's jaw)).

¶11            In other cases, however, an unexpected poor result
immediately puts a plaintiff on notice that malpractice might have
occurred; in these cases, the court may determine the date of accrual as a
matter of law. Walk, 202 Ariz. at 314, ¶ 16. In Trede v. Family Dental Ctr.,
147 Ariz. 25, 26-27 (App. 1985), for example, a patient went to a dental
center for a tooth extraction. A nurse inserted a needle into the patient's
hand to administer anesthesia and commented, "I think I missed the vein.
Let's see." Id. at 26. The nurse pushed the needle's plunger and the patient
immediately felt a burning sensation. Id. Although the nurse eventually
was able to administer the anesthesia and the surgeon successfully
extracted the tooth, the patient's hand had swollen and turned purple by
the end of the procedure, and she suffered permanent injury. Id. The
patient filed her complaint three days beyond the limitations period. Id. at
26-27. After the superior court held on summary judgment that the claim
was time-barred, the patient argued on appeal she did not know she had


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               KOPACZ, et al. v. BANNER HEALTH, et al.
                        Opinion of the Court

been injured until a few days after the extraction. Id. We affirmed,
concluding the cause of action accrued the day of the extraction because the
patient clearly knew she was injured that day and also knew then that the
nurse had caused the injury. Id. at 27.

¶12            The record here likewise leaves no doubt about when Kopacz
knew or should have known she might allege a claim based on lack of
informed consent. She plainly knew within four days that she had suffered
injury as a result of the catheterization. The morning of December 27, she
reported "uncontrolled pain" in her right hip and groin, where doctors had
cut into her femoral artery to perform the catheterization. She was rushed
by ambulance back to the hospital, where she described her symptoms, and
medical personnel there reported she was awake, alert and oriented. The
next morning, she underwent surgery to repair the aneurysm and evacuate
the hematoma in her hip and groin. If no one told Kopacz ahead of time
that the cardiac catheterization might cause a hematoma and aneurysm in
her hip and groin, she knew no later than when they appeared, four days
after the catheterization, that she might have a claim based on lack of
informed consent.

¶13             Kopacz further argues, however, that "her serious medical
condition . . . prevented her from understanding what was happening to
her and what caused it." In an affidavit submitted in response to the
summary judgment motion, she declared she "was very ill and [had] very
little recall of what was going on" while in the hospital, and "could not
consider the possible cause of [her] medical problems" during that time.
She further averred that after she was released to the rehabilitation facility
on January 8, her "medical condition and medication made it difficult to
understand what was happening to [her], and [she] could not consider the
possible cause of [her] medical problems." She therefore contends she
should not be charged with notice of her claim until on or after March 7,
2014, when she was finally able to "contemplate the possibility something
had been done wrong."

¶14            Under Arizona law, a statute of limitations is tolled if a
would-be plaintiff is of "unsound mind" when the cause of action accrues.
A.R.S. § 12-502 (2018). See Doe, 191 Ariz. at 325-26, ¶¶ 40-42. Under this
provision, the period during which the plaintiff is "of unsound mind" is not
counted toward limitations, which will begin to run only "after removal of
the disability." A.R.S. § 12-502; see also A.R.S. § 12-503 (2018) (once statute
of limitations begins to run, it continues to run "notwithstanding a
supervening disability").



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                KOPACZ, et al. v. BANNER HEALTH, et al.
                         Opinion of the Court

¶15            As applied here, § 12-502 is based on the principle that "it is
unfair to bar an action in which the plaintiff is mentally disabled and thus
unable to appreciate or pursue his or her legal rights." Doe, 191 Ariz. at 325,
¶ 41 (emphasis omitted). But before the statute will apply in a case such as
this, the plaintiff must submit "hard evidence" that she lacked the mental
capacity to bring a claim based on the facts available to her. Id. at 326, ¶ 42.
The evidence must show that the plaintiff is "unable to manage [her] affairs
or to understand [her] legal rights or liabilities." Id. "[C]onclusory
averments such as assertions that one was unable to manage daily affairs
or understand legal rights and liabilities" do not constitute the hard
evidence required to gain benefit from tolling for unsound mind. Id.

¶16            Kopacz failed to offer evidence sufficient to toll limitations
under § 12-502. Her affidavit, and a similar one by her daughter, merely
stated in conclusory fashion that for weeks after the procedure, Kopacz was
too ill to consider bringing a malpractice claim. And, as recounted above,
the only "hard evidence" of Kopacz's mental state shows that when she
returned to the hospital four days after the catheterization, she was alert,
oriented and aware of the injury that had developed at the site of the
procedure.3

¶17           Without evidence sufficient to satisfy § 12-502, Kopacz
proposes that the common-law discovery rule may toll limitations when a
plaintiff cannot prove an "unsound mind" but asserts she was simply

3       Courts in other states have held that injuries sustained in an accident
may render a plaintiff temporarily of unsound mind. See, e.g., Lowe v. Pue,
257 S.E.2d 209, 212 (Ga. App. 1979) (plaintiff alleged accident rendered her
"totally physically and mentally incapacitated with the result that she was
incompetent to manage her affairs"). On the other hand, short-term effects
of post-accident medication, by themselves, may not suffice. See Eisenbach
v. Metro. Transp. Auth., 62 N.Y.2d 973, 975 (1984) (effects of painkillers
prescribed for injuries did not allow tolling under mental-disability statute:
"The expansion of the statute to embrace such disability—undoubtedly
experienced in varying degrees whenever pain-killing drugs are
administered—should be accomplished, if at all, by legislative action.");
Fisher v. Ohio Univ., 589 N.E.2d 13, 16-17 (Ohio 1992) (same); Hargraves v.
Armco Foods Inc., 894 S.W.2d 546, 548 (Tx. App. 1995) ("purpose behind the
tolling provision would not be furthered by holding that minor mental
impairment tolls the limitations period"). Given Kopacz's failure to offer
anything but conclusory statements in support of her contention that she
could not "consider" a claim, we need not consider further whether she
satisfied § 12-502.


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                KOPACZ, et al. v. BANNER HEALTH, et al.
                         Opinion of the Court

unable to think about whether she might have a claim. But Kopacz cites no
legal authorities, and we have found none supporting that proposition.
Moreover, in Doe, our supreme court explained that the two legal rules
work independently of each other and serve different purposes. In that
case, the court first applied the discovery rule to determine when the claim
accrued, then considered whether the plaintiff's mental state tolled the
claim under § 12-502:

       While the purpose of the discovery rule and the tolling
       provisions for unsound mind are essentially similar, their
       applications are critically distinct. The discovery rule
       contains an informational component requiring that the
       factfinder determine when the plaintiff knew or should have
       known the facts that constitute a cause of action. Tolling for
       unsound mind, on the other hand, requires that the factfinder
       determine whether the plaintiff had the mental capacity to
       bring a claim based on those facts.

Doe, 191 Ariz. at 326, ¶ 41.

¶18           Applying that reasoning here, as stated, Kopacz surely knew
or should have known by December 27, 2013, of facts constituting her cause
of action. Although she contends she was mentally unable to consider a
claim based on those facts, whether she had the "mental capacity to bring a
claim" is governed by § 12-502, see Doe, 191 Ariz. at 326, ¶ 41, and she has
not shown that she was of an "unsound mind" within the meaning of that
statute. See Borchard v. Anderson, 542 N.W.2d 247, 249-51 (Iowa 1996)
(refusing to apply the discovery rule in favor of plaintiff with post-
traumatic stress disorder who could not satisfy "mental illness" tolling
statute); Doe v. Roman Catholic Diocese of Jackson, 947 So. 2d 983, 986, ¶ 7
(Miss. App. 2006) (when plaintiff knew of tortious acts, whether she "was
mentally capable of understanding" them "is not the critical inquiry with
the discovery rule").

¶19          On this record, the superior court did not err in concluding
that Kopacz's cause of action accrued and limitations began to run no later
than December 28, 2013. The court therefore did not err in finding that
Kopacz's claim, filed more than two years after that date, was time-barred.

B.     Request for Explanation of the Superior Court's Decision.

¶20          Kopacz also argues the superior court erred in failing to grant
her motion for a more specific statement of the basis for granting summary
judgment. In that motion, she cited Arizona Rule of Civil Procedure 56(a)


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               KOPACZ, et al. v. BANNER HEALTH, et al.
                        Opinion of the Court

and objected that the minute entry setting out the ruling "does not reflect
the [c]ourt's stated grounds for its ruling from the [b]ench." On appeal,
Kopacz asserts the superior court failed to address the accrual date of a
claim based on lack of informed consent after that issue arose at oral
argument.

¶21            By rule, "[t]he court should state on the record the reasons for
granting or denying the motion." Ariz. R. Civ. Proc. 56(a). Here, the court
stated in its minute entry the reason for granting summary judgment: The
cause of action accrued by December 28, 2013, more than two years before
Kopacz filed her complaint on January 21, 2016, and her claim therefore was
barred under the statute of limitations. Even if we were to interpret the
word "should" in Rule 56(a) as imposing a requirement – a proposition for
which Kopacz offers no authority – the court's statement in the minute entry
would have satisfied it.4

                               CONCLUSION

¶22           We affirm the judgment in favor of the defendants.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




4      At any rate, Kopacz did not obtain and file a transcript of the hearing
on the summary judgment motion. "A party is responsible for making
certain the record on appeal contains all transcripts or other documents
necessary for us to consider the issues raised on appeal." Baker v. Baker, 183
Ariz. 70, 73 (App. 1995). "When a party fails to include necessary items, we
assume they would support the court's findings and conclusions." Id.


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