Marshall v. Williams

McFATE,

specially concurring:

I concur in the majority opinion, but because I dissented in Musa, I hasten to point out the distinguishing features of that case which in my opinion required a different ruling than in the present case.

Musa dealt with the applicability of the new Medical Malpractice Act to a claim which arose before the Act became law but which was filed thereafter. The plaintiffs pleaded only a common law action and strongly urged that the Act did not apply to them. The trial court held that it did apply. It seemed to me to be stretching the point a little to hold that the plaintiffs were pursuing common law remedies and statutory remedies under the new Act as alternative theories of recovery. I viewed the rule 54(b) judgment which dismissed the common law action to be quite final as to the plaintiffs in that action, albeit they were ordered to proceed pursuant to the statute, which they did not invoke, alternatively or otherwise. .

In the present case, as has been ably pointed out in the main opinion, plaintiffs seek to determine the invalidity of the county’s medical assistance program, alleging various legal theories to accomplish this purpose. The judgment ruling on only one of the alternative theories is therefore neither final nor appealable.

NOTE: The Honorable Yale McFate was authorized to participate in this case by the Chief Justice of the Arizona Supreme Court pursuant to Ariz.Const. Art. VI, § 20.