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Geoff Trachtenberg
Geoff Trachtenberg
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Minor's Claim for Medical Bills Belongs to Parents Absent a "Waiver"

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New decision from Division One entitled Lopez v. Cole. In short, the court held that based upon existing Supreme Court precedent, i.e., Pearson & Dickerson Contractors Inc. v. Harrington, 60 Ariz. 354, 137 P.2d 381 (1943), a claim for medical bills belongs to parents absent a “waiver” (and is, therefore subject to a two year SOL), but that a parent’s failure to bring a claim within the two year SOL did not constitute such a “waiver” and that, in such a case, the claim does not automatically “pass” to the child.

The court also addressed the “doctrine of necessaries,” concluding that it also did not apply to allow the child to bring such a claim where the bills are paid by AHCCCS. One thing I found very interesting is the statement that “[t]he State can recover [medical] expenses through a lien only if AHCCCS recorded a statement regarding the claim with the county recorder ‘within sixty days from the date of notification to the administration of the hospital discharge or rendering of medical care and treatment.'”, quoting A.R.S. § 36-2915 (1999). The court reasoned that, since “there is no evidence in the record that AHCCCS filed or served any such lien in this case,” AHCCCS could not recover medical expenses.

Proof that “short memories make bad law,” the court seems to have forgotten AHCCCS v. Bentley, 187 Ariz. 229, 928 P.2d 653 (App. 1996), where it was “undisputed that AHCCCS did not perfect a lien for [the] medical care and treatment.” In Bentley, Division One “rejected Bentley’s argument that the availability of lien rights under section 36-2915 preempts recovery [of medical expenses] by AHCCCS under section 12-962.” The Bentley court dismissed the fact that AHCCCS had failed to file such a lien and held that AHCCCS could recover under Section 12-964, which does not require such a lien to be filed.

Anyway, when was ARS 12-502 (the tolling statute for minors) enacted? Seems to me that it was probably enacted sometime after 1943 and that it should be read to preserve such claims for minors, but that’s just me. The Lopez court quickly dispatched this argument saying that, “because we find that Laryn may not recover for the cost of medical care he received, we do not reach the issue of whether the tolling statute pertaining to minors (A.R.S. § 12-502) applies.” Isn’t this backwards? Shouldn’t you also decide whether the tolling statute applies to perhaps endow the right to recover medical expenses before you decide that someone cannot recover the medical expenses? I dunno, seems like Pearson is out-of-date and inconsistent with the intent of ARS 12-502.