Lorenza Kopacz was 80 years old when she came to the emergency room at Banner Health in Arizona. She complained of chest heaviness and shortness of breath. One of the facility’s doctors examined her and recommended cardiac catheterisation. The procedure was performed in 23 December 2013 by way of an incision in the right groin allowing access to the femoral artery.

Mrs Kopacz did not enjoy a good result. Severe pain, bleeding and swelling of the groin followed, spiralling into cardiogenic shock, atrial fibrillation, severe sepsis and hypotension. There was a succession of hospital care and rehabilitation. Her condition stabilised between March and July 2014.

On 21 January 2016 Mrs Kopacz issued proceedings in negligence against the hospital in Maricopa County Superior Court. the hospital sought dismissal of the claim on limitations grounds. The application was granted: Kopacz v Banner Health (Maricopa Co. Sup. Ct, Brnovich J, 2017, unreported). Kopacz appealed.

The appeal was dismissed. Arizona law provided that a medical negligence claim accrued when the plaintiff had reason to connect their injury with some causative factor in a way that would put a reasonable person on notice to investigate whether the injury may be someone’s fault. Once that intellectual threshold was crossed, the plaintiff had two years to commence a claim.  Mrs Kopacz knew or should have known of a possible claim by 27 December 2013. She responded that her medical condition prevented her understanding what had happened and its cause. While Arizona law allowed for a limitation period to be delayed while a claimant was “of unsound mind”, hard evidence of incapacity was required. The plaintiff’s self-report was insufficient, even when supported by an affidavit from a family member. Accordingly, Mrs Kopacz had issued out of time.

Kopacz v Banner Health (Arizona Court of Appeals, 5 July 2018)