Pelchat v. Banner Health

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

SHERRI PELCHAT, Plaintiff/Appellant,

v.

BANNER HEALTH, et al., Defendants/Appellees.

No. 1 CA-CV 25-0183
FILED 11-24-2025

Appeal from the Superior Court in Maricopa County
No. CV2024-050296
The Honorable Melissa Iyer Julian, Judge

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

COUNSEL

Black Canyon Law, PLLC, Carefree
By Nakisa M. Azizi
Counsel for Plaintiff/Appellant

Broening Oberg Woods & Wilson, P.C., Phoenix
By Jay Fradkin, Kelley M. Jancaitis
Counsel for Defendants/Appellees Matthew Stapleton

Slattery Petersen L.L.C., Phoenix
By Elizabeth A. Petersen, Kaitlin F. Secker
Counsel for Defendants/Appellees Banner Health
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Decision of the Court

MEMORANDUM DECISION

Judge Andrew J. Becke delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.

B E C K E, Judge:

¶1 Sherri Pelchat appeals the superior court’s dismissal of her
wrongful death action arising from the death of her mother, Charlotte R.
Bowman (“Decedent”), against Banner Health DBA Banner Boswell
Medical Center, Banner Medical Group, Peter Fine, Rebecca Kuhn, Marjorie
Bessel, Leigh Sydney Holdsworth, Joseph L. Peters, Jed Mohammad Bayasi,
Jawad Jasser Issa Abukhalaf, Jorie Cantrell, Tasha Nicole McNutt (“Banner
Health”), and Matthew Ryan Stapleton (“Dr. Stapleton”) (collectively,
“Defendants”). For reasons that follow, we affirm in part, vacate the
dismissal order, and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶2 Because the superior court dismissed this matter pursuant to
a Rule 12(b)(6) motion, we “assume the truth of all well-pleaded factual
allegations and indulge all reasonable inferences from those facts.” Coleman
v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012).

¶3 On October 17, 2021, Richard D’Ambrosia, Pelchat’s husband,
brought Decedent to a Banner Health emergency department complaining
of left-arm pain resulting from a fall at home a few days earlier. Without
D’Ambrosia’s consent, Banner Health adjusted Decedent’s oxygen settings
and ordered X-rays and a CT scan. Decedent’s chest x-ray showed “hazy
airspace opacities consistent with infection, including [COVID-19].”

¶4 D’Ambrosia left the emergency department to pick up
Pelchat. While he was away, Pelchat received a call from the hospital that
Decedent had tested positive for COVID-19 and was being admitted.
Pelchat asked that Decedent receive ivermectin and hydroxychloroquine,
but Dr. Stapleton informed Pelchat he intended to administer remdesivir
instead. Banner Health and Dr. Stapleton then overdosed Decedent on
“sedatives, beta-blockers, calcium-channel-blockers, digoxin and other
drugs” causing a “major cardiovascular event and/or neurologic injury,”
leading to her death on October 21, 2021. Banner Health and Dr. Stapleton

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“fraudulently list[ed] pneumonia due to COVID-19 as the primary cause of
death.”

¶5 Pelchat requested Decedent’s medical records from Banner
Health on November 3, 2021 and received them in “mid-January 2022.” Not
until she reviewed these records did Pelchat learn Banner Health staff had
placed Decedent on “remdesivir, heavy narcotics and other undisclosed
drugs” during her stay. At that point, Pelchat “became concerned about the
legality of [Banner Health’s] conduct.”

¶6 On January 23, 2024, Pelchat filed a complaint against
Defendants alleging several survival actions including assault, battery, and
false imprisonment, and several wrongful death claims including medical
malpractice, negligence, and gross negligence.

¶7 Banner Health moved to dismiss her complaint, arguing her
allegations were “barred by” the federal Public Readiness and Emergency
Preparedness (“PREP”) Act immunity, which provides immunity from
liability for claims arising out of the “administration” or use of “covered
countermeasure[s]” against COVID-19. 42 U.S.C. § 247d-6d(a)(1). Banner
Health argued Pelchat’s claims were barred because the “crux” of her
complaint was the administration of remdesivir, a covered COVID-19
countermeasure. In the alternative, Banner Health argued Pelchat’s
wrongful death claims were barred by Arizona’s two-year statute of
limitations pursuant to A.R.S. § 12-542 and her survival actions were barred
pursuant to A.R.S. § 14-3109. Dr. Stapleton joined in the motion.

¶8 In response, Pelchat argued her complaint was not wholly
barred by the PREP Act, as it contained multiple claims of malpractice
unrelated to “covered countermeasures” against COVID-19 and that the
use of remdesivir was not the “crux” of her complaint. Pelchat also argued
accrual did not occur, “at the very earliest, until she had a reasonable
amount of time to procure an expert opinion on the medical records she
received in January of 2022, almost precisely two years prior to the filing of
her [c]omplaint." Pelchat further argued that, even if the superior court
found as a matter of law her complaint was untimely, equitable tolling
saved her claims and “Defendants [were] in no way prejudiced by any
delay in the filing of [the] action.”

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¶9 Pelchat additionally asserted the statute of limitations for any
COVID-19-related claims could not have begun to run, at the earliest, until
September 19, 2023—the day this court held A.R.S. § 12-516
unconstitutional. Roebuck v. Mayo Clinic, 256 Ariz. 161 (App. 2023), review
granted in part (Sept. 10, 2024), vacated in part, Roebuck v. Mayo Clinic, ___
Ariz. ___, ___, 575 P.3d 375, 385 (2025).

¶10 A.R.S. § 12-516 provided that health care professionals and
institutions acting in good faith were not liable for damages arising from
“services in support of” Arizona’s response to the COVID-19 pandemic.
A.R.S. § 12-516(A). Under the statute, health care professionals and
institutions remained liable if they failed to act in good faith, or if a plaintiff
showed by clear and convincing evidence that the health care provider or
institution acted or failed to act due to willful misconduct or gross
negligence. Id.

¶11 This court in Roebuck held A.R.S. § 12-516 unconstitutionally
abrogated a plaintiff’s right to sue for ordinary negligence. 256 Ariz. at 169,
¶ 29. The Arizona Supreme Court affirmed this holding with alternative
reasoning in September 2025. Roebuck, ___ Ariz. at ___, ¶ 25, 575 P.3d at 385.

¶12 Pelchat argued her claims were not cognizable until after
Roebuck invalidated “Defendants’ purported immunity.” And because the
“lack of clarity in the law surrounding Defendants’ immunity” created
“confusion . . . amongst [the] attorneys” Pelchat consulted, she could not
find an attorney nor a medical expert until December 2023.

¶13 Pelchat also argued Defendants engaged in fraudulent
concealment when they “falsely led [Pelchat] to believe [Decedent’s] cause
of death was ‘pneumonia due to COVID-19’ . . . and ‘intentionally delay[ed]
release of Decedent’s medical records.’” This alleged fraud tolled the statute
of limitations until January 18, 2024, when Pelchat learned of Defendants’
wrongdoing.

¶14 Although the superior court found Defendants were
protected by immunity for injuries resulting from the administration of
remdesivir, it declined to dismiss the entire complaint on the basis of the
PREP Act. The court also found both parties “appear to misunderstand”
A.R.S. § 14-3109 and how it affects the statute of limitations on Pelchat’s
survival actions. The court held that A.R.S. § 14-3110

does not “create a new claim but merely prevents abatement
of the injured person’s claim and provides for its enforcement
by h[er] personal representative.” Barragan v. Superior Court,

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12 Ariz. App. 402, [404,] 470 P.2d 722 (1970). As such, the
limitations period applicable to survival claims is the same as
it would be had the injured party survived. Matter of Chase’s
Estate, 125 Ariz. 270, 273 (App. 1980). The only distinction is
that A.R.S. § 14-3109 tolls the accrual of a survival action for
up to a year after death or the time when a personal
representative is appointed, whichever occurs first.

¶15 Therefore, the superior court found dismissal of Pelchat’s
false imprisonment claim appropriate given the statute of limitations
would have expired “even with the tolling permitted” under § 14-3109.”
Pelchat’s assault and battery claims could not be dismissed because “it
[was] not clear from the [c]omplaint when [Pelchat] was appointed as
[Decedent’s] personal representative. And if the assault and battery claims
were tolled under the statute until October 21, 2022, then the claims for
assault and battery would be timely as filed in late January 2024.”

¶16 However, the superior court found Pelchat’s wrongful death
claims were time barred.

[Pelchat] admits that she was provided with Decedent’s
medical records [in mid-January 2022] and “learned that
[Defendants] had placed Decedent on [r]emdesivir, heavy
narcotics and other harmful drugs” . . . [Pelchat] does not
dispute that this gave her the requisite knowledge that “a
wrong occurred and caused injury.” In fact, this information
caused her to seek legal counsel “for her assistance with her
potential claims against Defendants.”

¶17 The superior court disagreed that A.R.S. § 12-516 prevented
Pelchat from filing suit. Even before Roebuck, § 12-516 permitted gross
negligence claims and only barred ordinary negligence claims when the
provider acted in good faith. Because Pelchat expressly asserted claims of
gross negligence and pled that Defendants did not act in good faith, the
court found no reason why Pelchat would believe § 12-516 operated as a
bar to her claims.

¶18 The superior court also found neither Pelchat’s inability to
obtain counsel nor her delay in seeking review by a medical expert
warranted applying equitable tolling. And because this court found A.R.S.
§ 12-516 unambiguous and clear, see Roebuck, 256 Ariz. at 166, ¶ 14, the court
did not find Pelchat’s argument about the “lack of clarity” in the law
persuasive.

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¶19 As to Pelchat’s allegations of fraudulent concealment, the
superior court found the statute of limitations “would only be tolled during
the period of concealment.” Once Pelchat received the medical records, she
was “aware of sufficient facts to trigger accrual” and could not “rely on
fraudulent concealment as a basis for further delays.”

¶20 With the superior court’s leave, Pelchat filed a first amended
complaint (“FAC”). The FAC added several factual allegations and two
survival actions: intentional infliction of emotional distress and unjust
enrichment. Defendants moved to dismiss the FAC, arguing Pelchat lacked
standing to bring any survival actions because she was never appointed
personal representative of Decedent’s estate and reasserting many of the
same arguments from their first motion to dismiss concerning Pelchat’s
wrongful death claims.

¶21 The superior court granted Defendants’ motion to dismiss all
Pelchat’s claims. It reaffirmed its findings and orders regarding both the
statute of limitations and PREP Act immunity and found Pelchat did not
have standing to bring any survival actions because she was not Decedent’s
personal representative. And even if Pelchat had been appointed at that
time, the statute of limitations on her survival claims had expired. The court
entered final judgment and Pelchat timely appealed.

¶22 We have jurisdiction under Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

¶23 Pelchat argues the superior court erred in holding the statute
of limitations bars her wrongful death claims. We review a superior court’s
decision not to apply equitable tolling for an abuse of discretion. McCloud
v. State, 217 Ariz. 82, 86–87, ¶ 10 (App. 2007). We review de novo the
dismissal of a complaint under Arizona Rule of Civil Procedure 12(b)(6).
Coleman, 230 Ariz. at 355, ¶ 7.

I. The Superior Court Did Not Abuse Its Discretion in Declining to
Apply Equitable Tolling.

¶24 Pelchat argues the superior court abused its discretion in not
applying equitable tolling. Pelchat provides the same two arguments for
equitable tolling that she provided to the court: fraudulent concealment and
extraordinary circumstances.

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¶25 Pelchat alleges Defendants engaged in fraudulent
concealment by “misleading [her] about the severity of Decedent’s
condition and the treatment she was receiving during her hospitalization”
and by delaying the release of Decedent’s medical records. Fraudulent
concealment tolls the statute of limitations until “such concealment is
discovered, or reasonably should have been discovered.” Walk v. Ring, 202
Ariz. 310, 319, ¶ 35 (2002) (quoting Acton v. Morrison, 62 Ariz. 139, 144
(1945)). Even assuming the truth of Pelchat’s allegations, the statute would
only have been tolled until “mid-January 2022” when she received medical
records from Banner Health—the latest day her claim could have accrued.
Pelchat fails to show the superior court abused its discretion in declining to
toll the statute of limitations beyond the date of accrual.

¶26 As for extraordinary circumstances, Pelchat argues the bar of
ordinary negligence liability by A.R.S. § 12-516 until this court’s decision in
Roebuck created a “lack of clarity in the law” warranting equitable tolling.
We disagree. A.R.S. § 12-516 is unambiguous. Roebuck, 256 Ariz. at 166, ¶ 14.
Section 12-516(A) holds healthcare providers not liable for damages in a
civil action for ordinary negligence where the healthcare provider acted in
good faith. Each of Pelchat’s ordinary negligence claims state Defendants
discriminated against Decedent for being unvaccinated, denied Decedent
access to drugs, and blocked Decedent from communicating with her
medical power of attorney. In Count III of the FAC, Pelchat further alleges
Defendants used fraudulent means to provide medical interventions and
abused unvaccinated patients by—among other things—denying them
water and food. In other words, Pelchat alleged Defendants did not treat
Decedent in good faith. Section 12-516(A) did not bar Pelchat’s simple
negligence claims as pled. Pelchat could have filed her FAC—including her
ordinary negligence claims—even before the statute was found
unconstitutional. She thus fails to show how section 12-516 prevented her
from filing a timely complaint.

¶27 Finally, Pelchat argues the lack of attorneys and medical
experts willing to get involved in her case also warranted equitable tolling
of her claims. Because a lack of legal counsel or a medical expert do not
ordinarily warrant equitable tolling, we cannot say the superior court
abused its discretion in declining to equitably toll the statute of limitations.
See Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have never
accepted pro se representation alone . . . as an excuse for prolonged
inattention when a statute’s clear policy calls for promptness.”); Thompson
v. Pima County, 226 Ariz. 42, 47, ¶ 14 (App. 2010) (holding that lacking an
expert opinion did not toll the statute of limitations).

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¶28 Because the superior court did not abuse its discretion, we
affirm the court’s refusal to apply equitable tolling.

II. At the Latest, Pelchat’s Claim Accrued the Date She Received
Medical Records.

¶29 Pursuant to A.R.S. § 12-542(2), a wrongful death action must
be brought within two years of the date of death. However, the discovery
rule tolls the statute of limitations until “the plaintiff knows or with
reasonable diligence should know the facts underlying the cause.” Satamian
v. Great Divide Ins. Co., 257 Ariz. 163, 170, ¶ 13 (2024) (citation omitted). The
facts underlying the cause include both the “what” and the “who” elements
of causation. Walk, 202 Ariz. at 316, ¶ 22. And the statute of limitations is
tolled until only after the plaintiff has a reason to connect those two
elements “in such a way that a reasonable person would be on notice to
investigate whether the injury might result from fault.” Id.

¶30 The court “may determine the date of accrual as a matter of
law,” Kopacz v. Banner Health, 245 Ariz. 97, 100, ¶ 11 (App. 2018), but if there
are disputed material facts, accrual is “usually and necessarily [a] question[]
of fact.” Walk, 202 Ariz. at 316, ¶ 23.

¶31 The FAC alleged Pelchat “became concerned about the
legality of Defendants’ conduct” when she received Decedent’s medical
records in “mid-January 2022.” Upon receipt of those records, Pelchat was
“on notice to investigate” whether Decedent’s death resulted from Banner
Health’s fault. Id. at ¶ 22. She had all the “facts giving rise to [her] cause of
action” and “only their legal significance required further evaluation.”
Kowske v. Life Care Ctrs. of Am., Inc., 176 Ariz. 535, 537 (App. 1993),
disapproved of on other grounds by Walk, 202 Ariz. at 316–17, ¶ 25. Pelchat’s
claims accrued, at the latest, upon her receipt of the medical records in
“mid-January 2022.”

¶32 Based on the face of the complaint and indulging “all
reasonable inferences therefrom in favor of the nonmoving party,”
Steinberger v. McVey, 234 Ariz. 125, 131, ¶ 23 (App. 2014), we cannot say as
a matter of law that Pelchat’s claims are time-barred. In other words, we
cannot say as a matter of law that January 23rd does not fall in “mid-
January.” And if “mid-January 2022” includes the 23rd of the month,
Pelchat may have timely filed her claims within two years of their accrual.
Further discovery may reveal that Pelchat’s claims accrued earlier, but we
cannot say that the face of the FAC conclusively shows that Pelchat’s claims

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are time-barred. We therefore vacate the superior court’s dismissal of
Pelchat’s wrongful death claims.

CONCLUSION

¶33 We affirm the superior court’s refusal to apply equitable
tolling but vacate the court’s judgment dismissing Pelchat’s wrongful death
claims and remand for proceedings consistent with this decision.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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