Cimino v. Alway, 1

• Decision Date: 26 September 1972
• Docket Number: CA-CIV,No. 1,1
• Citation: 18 Ariz.App. 271,501 P.2d 447
• Parties: Jean CIMINO, Appellant, v. James D. ALWAY and Mrs. James D. Alway, his wife, individually and as husband and wife, Appellees. 1793.
• Court: Arizona Court of Appeals

Page 447

501 P.2d 447

18 Ariz.App. 271

Jean CIMINO, Appellant, v. James D. ALWAY and Mrs. James D. Alway, his wife, individually and as husband and wife, Appellees.

No. 1 CA-CIV 1793.

Court of Appeals of Arizona, Division 1.

Sept. 26, 1972.

As Amended on Denial of Rehearing Nov. 9, 1972.

Review Denied Dec. 12, 1972.

Manfred R. Wetzel, Phoenix, for appellant.

Snell & Wilmer, by Warren E. Platt, Phoenix, for appellees.

HOWARD, Judge.

The facts necessary to determine this appeal are as follows. On or about May 23, 1966, appellant, Jean Cimino, sustained an injury to her foot while shopping at Globe Discount City in Phoenix, Arizona. The injury was a result of a number of paint cans falling on her left foot. On or about June 8, 1966, appellant sought the professional services of the appellee, Dr. James D. Alway. On June 23, 1966, Dr. Alway performed surgery on the first metatarsalphalangal joint of appellant's left foot. She continued to see Dr. Alway for approximately one year.

Because appellant's foot continued to hurt her, she consulted a Dr. Myron Westerkamp. She first saw him on May 16, 1968. Ultimately, on July 1, 1968, Dr. Westerkamp performed surgery on appellant's left foot. On February 28, 1967, prior to the time that she consulted with Dr. Westerkamp but subsequent to the time of the operation by Dr. Alway, appellant filed a suit in the Superior Court of Maricopa County against Globe Discount City. That suit sought recovery for the personal injuries appellant alleged she had incurred as a result of the paint cans falling on her. In her complaint, appellant alleged that as a result of the conduct of the defendant Globe Discount City she underwent surgery on June 23, 1966, and that future medical expenses would be incurred including further future operations in addition to the operation already performed. This suit was tried to a jury, beginning on November 18, 1968, and a verdict was returned in appellant's favor and against Globe Discount City in the amount of $2,500.00. Subsequently, the court granted an additur of $2,500.00. A form of judgment for $5,000.00 was submitted by appellant's counsel and approved by the trial judge. The judgment was paid and satisfaction of judgment was entered on the record by appellant.

On September 25, 1969, appellant filed this action against Dr. Alway. The complaint was originally in three counts. Subsequent to the complaint being filed, appellees filed a motion to strike and motion to dismiss. The third count and certain portions of the first and second counts of appellant's complaint were stricken. The remaining portions of her complaint alleged two theories of recovery: First, that she is entitled to recover for damages for personal injury inflicted upon her because of malpractice on the part of appellee Dr. Alway. As to this theory appellant alleges the occurrence of the accident on May 23, 1966, in Globe Discount City where the paint cans fell on her left foot, and that on June 8, 1966, Dr. Alway examined these injuries and treated them but did so negligently in that he improperly performed a surgical operation on her foot.

The second theory alleged is that Dr. Alway gave 'false testimony' at the time of her trial against Globe Discount City. The trial court granted partial summary judgment on the issue of malpractice leaving the allegation of 'false testimony' intact. Appellant appeals from the partial summary judgment.

The motion for partial summary judgment was supported by a deposition of Dr. Westerkamp, pleadings on file and an affidavit filed by Dr. Alway. The response to the motion did not refer to any pleadings, depositions or affidavits. We only mention this fact at this time since it appears that on appeal, appellant has included a partial transcript of the Globe Discount trial. In her opposition to the motion for summary judgment filed in the trial court, appellant's counsel refers to certain portions of the transcript, however, this partial transcript was never presented to the trial court, was filed in the trial court only after the granting of the motion for partial summary judgment and cannot be considered by this court on appeal. Cf. Esborg v. Bailey Drug Co., 61 Wash.2d 347, 378 P.2d 298 (1963).

The trial court in making its ruling, had before it the complaint filed against Globe Discount City alleging the original injury and surgery by Dr. Alway; the minutes of the Globe Discount trial showing that Dr. Westerkamp was sworn and testified; an affidavit by Dr. Alway stating that the surgery he had performed was part of the treatment for appellant's injuries; the complaint in the instant case alleging negligent treatment of the injuries by the improper performance of surgery by Dr. Alway; the jury instructions on damages and the judgment and satisfaction of judgment in the Globe Discount City trial and; the deposition of Dr. Westerkamp in the case Sub judice.

Rule 56(e), as amended, Arizona Rules of Civil Procedure, 16 A.R.S., States in part:

'. . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'

In opposition to the motion for summary judgment appellant's counsel asserted that at the Globe Discount City trial Dr. Alway testified that the surgery he performed was for a previously existing deformity in appellant's foot and did not arise as a consequence of the injuries caused by the incident at Globe Discount City. These statements by counsel are not in the form prescribed by the foregoing rule. Mere assertions of fact made by counsel in his memoranda or brief are not entitled to consideration on the motion for summary judgment. Lane v. Greyhound Corp., 13 F.R.D. 178 (D.C.E.D.Ky.1952); United States v. Jones, 155 F.Supp. 52 (D.C.M.D.Ga.1957); James v. H.M.S. Port Lyttleton Port Line Ltd., 51 F.R.D. 216 (D.C.E.D.Pa.1971). Appellant made no attempt to amend her complaint to conform to the theory espoused in his memoranda. ¹

In her Answers to Interrogatories the appellant states that Dr. Alway testified in the Globe Discount City case that she should have completely recovered and that her complaints were in her mind; that everything was fine and that she had a good result from the surgery he had performed and should have recovered within 90 days after his operation. This testimony by appellant raises the key issue in this case, to-wit: Whether the satisfaction of the judgment entered in the Globe Discount City case establishes that appellant has already received satisfaction for the injuries alleged to have resulted from the malpractice charged against the appellees so that maintenance of the malpractice action is barred.

Summary judgment should not be granted if, on examination of the entire record, it is determined that there is a disputed fact which, if true, could affect the final judgment; litigants are entitled to a trial where there is the slightest doubt as to the facts. Livingston v. Citizen's Utility, Inc., 107 Ariz. 62, 481 P.2d 855 (1971). In considering a motion for summary judgment the reviewing court must view the evidence in the light most favorable to the losing party and give such party the benefit of all favorable inferences that may be reasonably drawn therefrom. Livingston v. Citizen's Utility, Inc., supra.

With these judicial shibboleths in mind we turn our attention to the issue of this appeal. Does a satisfaction of a judgment against the original tort-feasor bar an action against an attending doctor for malpractice in his treatment of the initial injury? Appellees answer this question in the affirmative relying on what can be termed the 'traditional view.' This view holds that since the injured person may recover from the party responsible for the original injury, damages flowing from the subsequent negligent medical treatment of said injury, recovery from or settlement with the original wrongdoer in and of itself bars a recovery against the doctor charged with having aggravated that injury by negligent and unskillful treatment. For cases representing the majority rule See Farrar v. Wolfe, 357 P.2d 1005 (Okl. 1960); Williams v. Dale, 139 Or. 105, 8 P.2d 578 (1932); Thompson v. Fox, 326 Pa. 209, 192 A. 107 (1937); Makarenko v. Scott, 132 W.Va. 430, 55 S.E.2d 88 (1949); Hartley v. St. Francis Hospital, 24 Wis.2d 396, 129 N.W.2d 235, 130 N.W.2d 1 (1964); See also Annot. 50 A.L.R. p. 1057 et seq.; 82 A.L.R. p. 932 et seq.; 112 A.L.R. p. 553 et seq.; 39 A.L.R.3d p. 263 et seq. and cases cited in 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 221 (1972); 76 C.J.S. Release § 50, p. 691 (1952).

The reasons underlying the traditional view have been variously stated as follows: The injured party has a legal remedy only to obtain compensation for the damage done to him and when that compensation has been received from the wrongdoer, his right to further remedy is at an end; the damages aggravated by the negligence of a physician who treated the injury are entire and indivisible and for the injury and its aggravation the injured person may have but one full satisfaction; the injury resulting from the joint action of the wrongdoers is a single injury and constitutes the basis for a single cause of action; it must be presumed that a settlement with one of the joint tort-feasors represents full satisfaction of the entire claim and that any further recovery would involve double compensation for the same injury. We do not believe any of these reasons are so persuasive or decisive as to compel us to adopt a conclusive and arbitrary rule of law to the effect that settlement with, or satisfaction by, the original tort-feasor Ipso facto discharges the cause of...