BRADFORD F. MARTIN and CARMEN P. MARTIN, husband and wife, Plaintiffs/Appellants,
VICTOR K. STAHELI M.D., and "JANE DOE" STAHELI, husband and wife, et al., Defendants/Appellees.
from the Superior Court in Navajo County No. S0900CV201600214
The Honorable Dale P. Nielson, Judge.
McNamara Goldsmith, P.C., Tucson By Michael F. McNamara
Counsel for Plaintiffs/Appellants.
Skelton & Hochili PLC, Phoenix By Eileen Dennis GilBride
(argued) Co-Counsel for Defendants/Appellees Terrence
Cavanaugh and White Mountain Radiology PLLC.
& Wittekind PC, Phoenix By Richard A. Kent and Callie P
Maxwell Co-Counsel for Defendants/Appellees Terrence
Cavanaugh and White Mountain Radiology PLLC.
Broening Oberg Woods & Wilson, Phoenix By James R.
Broening, Megan E. Gailey, and Alice M. Jones Counsel for
Defendant/Appellee Summit Healthcare Regional Medical Center.
Cook Drury Mesaros, PA, Phoenix By William W. Drury, Jr. and
Jeffrey S. Hunter Counsel for Defendants/Appellees Victor K.
Staheli, M.D., Curtis Jones, and White Mountain Emergency
Smith, Henning & Berman, LLP, Phoenix By Jodi L. Mullis
and Christopher K. Heo Counsel for Defendants/Appellees
Aureus Radiology, LLC, and Jennifer Walcoff.
Slutes, Sakrison & Rogers, PC, Tucson By Kathleen M.
Rogers Counsel for Defendants/Appellees Banner University
Medical Center, Tucson Campus, LLC, Arizona Board of Regents
(ABOR) dba The University of Arizona College of Medicine, and
University Medical Center Corporation.
Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M.
Carmen Martin, individually and as the executor of her late
husband Bradford Martin's estate, appeals the superior
court's dismissal of the complaint alleging medical
negligence against several medical professionals and their
respective employers. We reverse the judgment in favor of the
defendants and hold: (1) an injured party's death
extinguishes his or her claim for hedonic damages, but it
does not extinguish the familial consortium claims of the
surviving family members; (2) the alleged medical malpractice
victim's estate may maintain a claim for economic damages
after the victim's death; (3) prejudice must be present
before a court may deny substitution of a decedent's
estate; and (4) the statute of limitations does not begin to
run on a minor child's loss-of-consortium claim until the
child reaches majority.
AND PROCEDURAL BACKGROUND
In August 2014, Bradford Martin went to the emergency
department at Summit Healthcare Regional Medical Center after
a fall. Dr. Victor Staheli, radiologist Dr. Terrance
Cavanaugh, and physician assistant Curtis Jones treated
Martin. After Dr. Cavanaugh interpreted the x-rays, the
medical providers determined Martin was "stable"
and discharged him. Three days later, Martin claimed he felt
his back "drop" or "break" when
attempting to sit. He again went to Summit Healthcare, where
it was confirmed that Martin had suffered "a profound
fracture at T12-L1."
In May 2016, Martin and his wife Carmen filed this case,
alleging medical negligence against Dr. Staheli, Dr.
Cavanaugh, Jones, and Summit Healthcare Regional Medical
Center. The Martins later added White Mountain Emergency
Physicians, P.C., as Dr. Staheli's and Jones'
employer, and White Mountain Radiology, PLLC, as Dr.
Cavanaugh's. Additional defendants Jennifer Walcoff and
her employer, Aureus Radiology, LLC, and Banner University
Medical Center were later added as defendants. We refer to
all the defendants collectively as the "Medical
The Martins alleged that Dr. Cavanaugh's incorrect
interpretation of the x-ray, and Dr. Staheli's and
Jones' failure to properly examine and treat Martin, led
him to being improperly discharged without further imaging
that would have confirmed the presence of the spinal
fractures and instability that put him at risk for the
serious spinal cord injury that he later suffered. The
Martins alleged that they both suffered mental pain and
suffering, including a loss of consortium, and suffered and
would continue to suffer economic damages, including medical
expenses, loss of income, and ongoing nursing home care as a
result of the injuries to Martin.
On April 4, 2018, Martin passed away suddenly after being
diagnosed with cancer the week before. His death was
unrelated to the alleged medical negligence. On April 6,
2018, Martin's widow filed a notice of his death. The
Medical Providers then moved to dismiss the entire complaint.
The motion to dismiss focused on the consortium claims. The
Medical Providers claimed that because Martin's death was
unrelated to the alleged medical malpractice, "there
[was] no legal basis for a wrongful death claim," and
that "[Martin's] claim against these Defendants is
invalid as a matter of law because he has passed away for
reasons unrelated to medical negligence," therefore,
"any claims derivative of the medical malpractice claim
- including loss of consortium -do not survive [Martin's]
death." The motion did not provide a basis for
dismissing the claims for economic damages, including medical
expenses, loss of income, and Martin's inability to live
at home as a result of the injuries. Nevertheless, the motion
concluded: "Plaintiffs' loss of consortium claim did
not survive [Martin's] death. As such, Plaintiffs'
[Complaint] must be dismissed."
Martin's widow responded to the motion to dismiss and
moved to amend the complaint to add Martin's estate and
Martin's children's claims for loss of consortium.
Her response noted that "[Martin's] claim in this
case continues to be pursued on behalf of his estate pursuant
to [Arizona Revised Statutes ("A.R.S.") section
14-3110 ("Survival Statute")]," and argued
that a family member's loss-of-consortium claim is not
extinguished upon the death of the injured party.
Rather than addressing the claims for economic damages, The
Medical Providers' reply argued only about the consortium
claims. They asserted that the legislature must create a
cause of action before the family could recover premortem
loss-of-consortium damages after the injured party's
death, as it had when it enacted A.R.S. §§ 12-611
through -613 (the "Wrongful Death Statutes"). The
Medical Providers concluded: "because there is no
remaining viable loss of consortium claim for Mrs. Martin,
this case must be dismissed with prejudice."
(Emphasis added.) They also opposed the motion to amend to
add Martin's minor children, stating that: (1) the
amendment would be futile because Martin's children's
claims for loss of consortium fail for the same reasons as
his widow's; (2) the statute of limitations had expired
on the children's claims; and (3) the undue delay would
prejudice the Medical Providers. The Medical Providers did
not address the request to substitute Martin's estate.
The court held oral argument on the various motions, and,
after taking the matter under advisement, dismissed the
complaint in its entirety. The court noted that a
loss-of-consortium claim is derivative of the injured
party's claim. The court then held that under the
Survival Statute, the claims for loss of consortium were
extinguished upon Martin's death. Martin's widow
moved for clarification about the status of the motion to
amend and whether the court had intended to dismiss the
claims for economic damages. The court denied the motion,
stating that the claims "were derivative and since
[Martin] was deceased the claims could not survive his
death" and because the motion to amend "was
primarily based on the [same] issues," it had implicitly
denied that motion as well.
Martin's widow moved for a new trial, restating that she
and Martin's estate had viable claims for economic
damages and maintaining that the court improperly dismissed
her consortium claim. The Medical Providers' response
ignored the economic damages argument in its entirety,
stating: "Plaintiffs' claims of loss of consortium
were extinguished by the death of Mr. Martin from cancer. The
facts and the law will not change no matter how many times
they are recited and Plaintiffs will not be entitled to
relief in this case no matter how many times they ask for
it." The superior court denied the motion for a new
trial and entered final judgments with awards of costs to the
Martin's widow appealed, and we have jurisdiction under