Brooker v. Hunter

• Decision Date: 10 December 1974
• Docket Number: CA-CIV,No. 1,1
• Citation: 22 Ariz.App. 510,528 P.2d 1269
• Parties: Leila M. BROOKER, surviving spouse of Frederick E. Brooker, Deceased, Appellant, v. Willard S. HUNTER and Dora Lee Hunter, his wife; G. T. Hoffman and Anne E. Hoffman, his wife; and Arizona Orthopedists, P.C., a corporation, Appellees. 2128.
• Court: Arizona Court of Appeals

Page 1269

528 P.2d 1269

22 Ariz.App. 510

Leila M. BROOKER, surviving spouse of Frederick E. Brooker, Deceased, Appellant, v. Willard S. HUNTER and Dora Lee Hunter, his wife; G. T. Hoffman and Anne E. Hoffman, his wife; and Arizona Orthopedists, P.C., a corporation, Appellees.

No. 1 CA-CIV 2128.

Court of Appeals of Arizona, Division 1, Department B.

Dec. 10, 1974.

Rehearing Denied Jan. 16, 1975.

Norman Herring, Phoenix, for appellant

Robbins, Green, O'Grady & Abbuhl, P.A., by Richard W. Abbuhl, Phoenix, for appellees Hunter and Arizona Orthopedists, P.C.

Jack M. Anderson and John S. Schaper, Phoenix, for appellees Hoffman.

Law Offices of Charles M. Brewer, Ltd., by Charles M. Brewer, Phoenix, for appellee Hunter.

OPINION

JACOBSON, Chief Judge, Division.

This appeal raises the question of the liability of medical specialists for the alleged negligence of other medical specialists treating the same patient in a post-operative care situation.

The deceased, Frederick E. Brooker, had previously suffered several industrially-related injuries to his back. As the result of his last injury, he was seen by appellee, Dr. Willard S. Hunter, a member of appellee, Arizona Orthopedists, P.C., who recommended surgery. Mr. Brooker was admitted to a hospital on March 31, 1970 for surgery scheduled the following morning. On this date, Mr. Brooker was examined by appellee, Dr. George T. Hoffman, a neurosurgeon, who had been called in for consultation by Dr. Hunter. Dr. Hoffman, after examining Mr. Brooker and reviewing his history, discovered he had, several years prior, suffered a myocardial infarct and was taking anti-coagulant and anticholesterol drugs. Because of this situation, Dr. Hoffman cancelled the scheduled surgery.

Dr. Hunter then secured the services of Dr. Woodson C. Young, an internist, to evaluate Mr. Brooker's heart condition. Mr. Brooker remained in the hospital until April 5, 1970, while Dr. Young conducted tests as to the heart problem. These tests showed some abnormalities as the result of the old infarct and that his enzyme count tests were abnormal. Mr. Brooker was to return to the hospital on April 13, 1970 for the scheduled low-back laminectomy. It appears that Dr. Young was of the opinion at this time that Mr. Brooker was a 'fair' risk for surgery.

On April 13, 1970, Mr. Brooker reentered the hospital and surgery was performed the following morning by Dr. Hoffman with Dr. Hunter assisting. The anesthesiologist who assisted at the surgery ordered an EKG taken following surgery and another EKG for the morning of April 15, 1970. The EKG taken following surgery showed the same results as that taken by Dr. Young approximately a week before. However, the EKG taken on April 15 showed increasing abnormalities in the heart and revealed arterial fibrillation. Drs. Hoffman, Hunter and Young denied any knowledge of these EKG tracings or reports, although each admit they never requested to see these results.

Following surgery, Mr. Brooker was seen by Drs. Hoffman and Hunter, along with Dr. Young, and each wrote orders concerning Mr. Brooker's post-operative care. He was last seen by any of his doctors on the morning of April 16, 1970 at which time Dr. Hoffman ordered 'ambulation,' which was confirmed by Dr. Young. This treatment appears to have been ordered because of the appearance of beginning atelectasis and fluid in the lungs on the morning of the 16th. Thereafter, Mr. Brooker was taken from his bed and urged to walk with the aid of hospital personnel.

During the day and evening of April 16th, Mr. Brooker's temperature rose and his pulse rate increased. Between midnight of the 16th and 2 a.m. of the 17th, Mr. Brooker had difficulty in breathing and was in a hypotensive state. He died in the early morning hours of April 17, 1970. Although no autopsy was performed, Dr. Hunter signed a death certificate showing cause of death as coronary thrombosis.

This malpractice action was brought by appellant, Leila M. Brooker, the surviving spouse, against Drs. Young, Hunter and Hoffman, Hunter's corporation and the hospital. As a result of motions for summary judgment filed by all defendants, the trial court granted judgment in favor of Drs. Hunter and Hoffman, but denied judgment as to Dr. Young and the hospital. Mrs. Brooker has appealed these judgments. Dr. Young and the hospital are not parties to this appeal.

The procedural aspects of the granting of the motions for summary judgment must be discussed because of several issues raised by the parties. After depositions were taken of Dr. Hunter, Dr. Hoffman, Dr. Croddy, the anesthesiologist, and Dr. Paul H. Harmon, an orthopedist from California who was listed as plaintiff's witness, the motions for summary judgment were filed. It appeared that Dr. Harmon's deposition was taken on the stipulation that during Dr. Harmon's stay in Arizona he would not be served with a subpoena and that in the event Dr. Harmon was not called as a witness to personally testify at trial, his deposition would not be offered into evidence. At the time of arguments on the motions for summary judgment, the depositions of Drs. Hunter, Hoffman and Young had not been signed nor had they been filed in the Clerk's office, although counsel for the defendants made these available to the trial court and the trial court considered them in ruling on the motions for summary judgment. On February 17, 1972, the court, by minute entry order, granted the motions of Drs. Hunter and Hoffman for summary judgment and this order was reduced to a formal written judgment and filed on February 22, 1972. Mrs. Brooker then filed a motion for reconsideration and new trial. Plaintiff's counsel also filed an affidavit by Dr. Elmer Yeoman, supporting the allegations of malpractice. The trial court then entered its order on March 27, 1972, granting the motion for reconsideration and new trial stating that it would consider all depositions then taken including the deposition of Dr. Harmon (the California expert) and directed counsel to file a supplemental affidavit by Dr. Yeoman, seeking his opinion as to the specific negligence of Drs. Hunter and Hoffman as to post-operative care.

This order was followed on March 31, 1972 by notice of defense counsel to take the deposition of Dr. Yeoman. On April 7, 1972, plaintiff's counsel was advised that the deposition of Dr. Yeoman would be cancelled and that only Dr. Yeoman's affidavit would be used. These affidavits, filed on April 11, 1972, expressed Dr. Yeoman's opinion that Drs. Hunter and Hoffman were not negligent in the post-operative care of Mr. Brooker. On April 11, 1972, the plaintiff filed an additional affidavit of Dr. Volney C. Morgan from White Memorial Hospital in Los Angeles. Dr. Morgan's affidavit opined that 'the post-operative care reflected in the hospital record of April 13 to April 17, 1970 for Frederick Brooker shows that the two admitting doctors (Drs. Hunter and Hoffman) and the internist (Dr. Young) each participated in the post-operative care, wrote orders for the care of the patient and were jointly responsible for the post-operative care of Frederick Brooker which was sub-standard, not in accordance with good medical practice and was a substantial contributing factor to the cause of the death of the patient on the morning of April 17, 1970.'

On May 8, 1972, the court again granted summary judgment in favor of Drs. Hunter and Hoffman, indicating that it did not consider Dr. Morgan's affidavit because it 'comes too late and at that is ambiguous.' This appeal followed the formalization of judgments in favor of Drs. Hunter and Hoffman, which complied with Rule 54(b), Rules of Civil Procedure, 16 A.R.S.

As indicated, the parties initially raise several procedural issues. The first of these is the contention of appellee Hunter that this court lacks jurisdiction to entertain this appeal. This contention is based on the argument that the formal written judgment entered on February 22, 1972 was final; that the motion for reconsideration and new trial filed by plaintiff was in essence a Rule 60(c), Rules of Civil Procedure motion ¹ which did not extend the time for filing the appeal under Rule 73(b), Rules of Civil Procedure; and that the notice of appeal filed herein being more than 60 days from February 22, 1972, was untimely, thus depriving this court of jurisdiction.

We have reviewed the motion filed by appellant's counsel and conclude that it is couched in the classic terms of Rule 59(a), Rules of Civil Procedure, defining the grounds for a new trial. We thus conclude that the motion is not one under Rule 60(c).

We do not need to decide in this appeal whether a motion for new trial will lie from the granting of a motion for summary judgment, ² for the trial court granted the appellant's motion. This had the effect of voiding the previous judgment and, if the trial court's order had been reduced to writing, it would have been appealable (assuming compliance with Rule 54(b), Rules of Civil Procedure). A.R.S. § 12--2101. If this order was erroneously entered by the trial court, the doctors, being aggrieved parties, could have appealed. This they did not do. The only subsequent appealable judgment entered by the court was on May 8, 1972 from which this timely appeal was taken. We therefore hold that this court has jurisdiction to consider the appeal in this matter.

The next procedural issue raised is by Mrs. Brooker who urges that the trial court improperly considered the depositions of Drs. Hunter, Young and Hoffman in granting the motions for summary judgment, these depositions not being signed or filed in accordance with ...