Duncan v. Scottsdale Medical Imaging, Ltd.

Decision Date16 June 2003
Docket NumberNo. CV-02-0191-PR.,CV-02-0191-PR.
Citation205 Ariz. 306,70 P.3d 435
PartiesMartha DUNCAN, an individual, Plaintiff-Appellant, v. SCOTTSDALE MEDICAL IMAGING, LTD., an Arizona corporation; Hospital Radiologists, Ltd., an Arizona corporation, Defendants-Appellees.
CourtArizona Supreme Court

Anderson, Hurwitz & Harward, P.C. by Eric C. Anderson, Randy J. Hurwitz, Scottsdale, Attorneys for Plaintiff-Appellant.

Kent & Wittekind, P.C. by Richard A. Kent, Stephen M. Booth, Phoenix, Attorneys for Defendant-Appellee, Scottsdale Medical Imaging, Ltd.

Arizona Trial Lawyers Association by Amy G. Langerman, Phoenix, Attorneys for Amicus Curiae, Arizona Trial Lawyers Association.

OPINION

JONES, Chief Justice.

INTRODUCTION

¶ 1 We granted review of two questions raised by petitioner, Martha Duncan, to determine whether the trial court and court of appeals erred in dismissing Duncan's battery claim against respondent, Scottsdale Medical Imaging ("SMI"): (1) whether the injection of a drug by a health care provider against a patient's express wishes constitutes a battery, and (2) whether section 12-562(B) of Arizona's Medical Malpractice Act ("MMA"), Ariz.Rev.Stat. ("A.R.S.") §§ 12-561 to -594 (2003), violates Article 18, Section 6 of the Arizona Constitution as an abrogation of a patient's right of action in common law battery to recover damages for injuries. We answer both questions in the affirmative, concluding that Duncan has properly stated a claim for battery and that the MMA's prohibition of battery claims amounts to an abrogation of the right of action, in violation of Article 18, Section 6 of the Arizona Constitution.

¶ 2 Jurisdiction is grounded in Article 6, Section 5(3) of the Arizona Constitution. We review the grant of summary judgment de novo, and view the evidence and all reasonable inferences in the light most favorable to the party against whom summary judgment was entered. Wells Fargo Bank v. Ariz. Laborers, Teamsters and Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13, 38 P.3d 12, 20 (2002). Additionally, we review de novo the lower courts' interpretation of statutes and constitutional issues. Hohokam Irr. and Drainage Dist. v. Arizona Public Service Co., 204 Ariz. 394, ¶ 5, 64 P.3d 836, 839 (2002).

FACTS

¶ 3 SMI performed a magnetic resonance imaging ("MRI") examination on Duncan on June 19, 1998. The procedure was performed at Scottsdale Memorial Hospital North. Duncan required sedation due to a back condition that would not allow her to lie still for the duration of the MRI procedure. On the day of the procedure, Duncan spoke by telephone to an SMI nurse. Duncan told the nurse she would only accept demerol or morphine for sedation and no other drug. The nurse assured Duncan that only demerol or morphine would be administered.

¶ 4 On the day of the procedure, Duncan asked Nurse Gary Fink, allegedly an employee of SMI, what drug she would be given. Nurse Fink said it was fentanyl, a synthetic drug similar to demerol and morphine. Duncan expressly rejected fentanyl, again stating that she did not want to receive anything but demerol or morphine. She repeated this request three separate times and asked Nurse Fink to call her doctor to discuss the medication or reschedule the MRI. Duncan finally agreed to proceed when Nurse Fink told her the medication had been changed to morphine. Duncan later learned that Nurse Fink, contrary to express understanding, had actually given her fentanyl. The administration of fentanyl led to serious complications, including severe headache, projectile vomiting, breathing difficulties, post-traumatic stress disorder, and vocal cord dysfunction.

¶ 5 Duncan sued SMI and Hospital Radiologists, Ltd. ("defendants"), alleging she informed defendants and/or their agents that she suffered allergic reactions to certain medications and that she specifically instructed that she was not to be given any synthetic drugs. Duncan alleged that defendants and/or their agents administered fentanyl, through injection, despite assuring her that the proper medication was being used. Duncan initially asserted three claims: medical malpractice (count 1), lack of informed consent (count 2), and battery (count 3).

¶ 6 After the case was set for trial, Duncan moved to dismiss counts 1 and 2. SMI did not oppose the motion. It then argued that Duncan's remaining battery claim must be classified as a medical malpractice action under A.R.S. § 12-562(B), and required presentation of expert testimony pursuant to A.R.S. § 12-563. The trial court agreed, ruling that Duncan's claim was for medical malpractice and that the governing statutes were constitutional as a "regulation" of common law battery. Duncan sought special action relief of the trial court's ruling, but the court of appeals declined jurisdiction.

¶ 7 Duncan then moved for summary judgment on the issue of battery, asking the trial court to allow her claim to proceed outside the MMA without the need to present expert testimony on the standard of care. SMI contended the MMA barred the battery claim and cross-moved for summary judgment, seeking dismissal of the so-called malpractice claim because Duncan failed to name an expert witness to testify that SMI's treatment fell below standard and that such failure was the cause of injury. The trial court denied Duncan's motion and granted SMI's motion, holding that evidence of the applicable standard of care and causation was essential to the claim. The trial court dismissed count 3, the battery claim, against all defendants.

¶ 8 On appeal, Duncan asked the court of appeals to overturn the judgment dismissing her complaint and again argued that the MMA violates Article 18, Section 6 of the Arizona Constitution because it abrogates the common law battery action against a health-care provider. The court did not reach the constitutional issue, having concluded the following: first, that the facts upon which Duncan relied did not give rise to an action for battery because she consented to the injection; second, that the trial court erred in characterizing count 3 as a claim for medical malpractice when it was knowingly intended to be one for battery; and third, that Duncan had waived any medical malpractice claim she may have had by failure to have a qualified expert establish the requisite standard of care. Finally, the court of appeals found that Duncan could not argue the constitutionality of the MMA since she had no claim for battery and failed to pursue a negligence claim for medical malpractice.

DISCUSSION
A. Battery Claim

¶ 9 We must first determine whether the administration of a drug against a patient's express wishes constitutes a battery under Arizona law. An actor is subject to liability to another for battery if the actor intentionally engages in an act that results in harmful or offensive contact with the person of another. See Restatement (Second) of Torts §§ 13, 18 (1965) (hereafter "Restatement"). The law is well established that a health care provider commits a common law battery on a patient if a medical procedure is performed without the patient's consent. See Hales v. Pittman, 118 Ariz. 305, 310, 576 P.2d 493, 498 (1978)

. A battery claim is defeated, however, when consent is given. See Restatement §§ 13 cmt. d, 18 cmt. f, 892-892D. Thus, the central question in a case of medical battery is whether the patient has effectively given his or her consent to the procedure.

1. Informed Consent

¶ 10 SMI argues that Duncan's claim is really a "lack of informed consent" case premised on negligence. Because Duncan failed to establish the standard of care required by providing expert testimony, SMI contends Duncan has failed to state a claim for negligence and the claim should be dismissed. Thus, as a preliminary matter, we distinguish "lack of consent" in the instant case from those cases involving "lack of informed consent."

¶ 11 Courts generally recognize two theories of liability for unauthorized medical treatment or therapy rendered by physicians to their patients: a traditional intentional tort claim for battery and a negligence claim for lack of informed consent. See Trogun v. Fruchtman, 58 Wis.2d 569, 207 N.W.2d 297, 311-12 (1973)

. A lack of informed consent claim "concerns the duty of the physician to inform his patient of risks inherent in the surgery or treatment to which he has consented." Mink v. Univ. of Chicago, 460 F.Supp. 713, 716 (N.D.Ill.1978); see also Restatement § 892B cmt. i. As explained by the California Supreme Court in Cobbs v. Grant, battery and informed consent theories apply in different situations:

The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.

8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, 8 (1972).

¶ 12 Unfortunately, past decisions by Arizona courts have used the term "informed consent" inconsistently. In Cathemer v. Hunter the court of appeals observed the following: "The essence [ ] of an informed consent question in a battery case involving a physician is what did the patient agree with the physician to have done, and was the ultimate contact by the physician within the scope of the patient's consent." 27 Ariz.App. 780, 783, 558 P.2d 975, 978 (1976) (emphasis added). Subsequently in Hales v. Pittman, this court explained that an operation becomes an ...

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