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 

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 

FILED 7-5-2018
KOPACZ, et al. v. BANNER HEALTH, et al.

Opinion of the Court

2

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).
KOPACZ, et al. v. BANNER HEALTH, et al.

Opinion of the Court

3

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.
KOPACZ, et al. v. BANNER HEALTH, et al.

Opinion of the Court

4

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 
KOPACZ, et al. v. BANNER HEALTH, et al.

Opinion of the Court

5

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").
KOPACZ, et al. v. BANNER HEALTH, et al.

Opinion of the Court

6

¶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.
KOPACZ, et al. v. BANNER HEALTH, et al.

Opinion of the Court

7

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 posttraumatic 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) 
KOPACZ, et al. v. BANNER HEALTH, et al.

Opinion of the Court

8

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.

 

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.