Estate of Reinen v. NORTHERN ARIZ. ORTHO.
| Decision Date | 31 August 2000 |
| Docket Number | No. CV-98-0411-PR.,CV-98-0411-PR. |
| Citation | 9 P.3d 314,198 Ariz. 283 |
| Parties | ESTATE OF Jared M. REINEN, Plaintiff-Appellant. v. NORTHERN ARIZONA ORTHOPEDICS, LTD., an Arizona corporation; Michael Abeshaus, M.D. and Michelle Ann Abeshaus, husband and wife; John W. Durham, M.D. and Lisa A. Jobin, husband and wife; Merrill M. Abeshaus, M.D. and Rhoda Mae Abeshaus, husband and wife; Roman Lewicky, M.D. and Juanita T. Lewicky, husband and wife; Flagstaff Medical Center, Inc., an Arizona corporation; Thomas S. Henry, II, M.D., P.C., Henry, II, M.D. and Sheila W. Henry, husband and wife, Defendants-Appellees. |
| Court | Arizona Supreme Court |
Law Offices of Raymond J. Slomski, P.C. by Raymond J. Slomski, James Michael Abernathy and Law Offices of James Bush, P.C. by James McConnell Bush, Phoenix, for Appellant Estate of Jared Reinen.
Teilborg, Sanders & Parks, P.C. by Frank A. Parks, Renee M. Coury, Phoenix, for Appellees Abeshaus, Lewicky and Durham.
Olson, Jantsch, Bakker & Blakey, P.A. by Thomas G. Bakker, Michael L. Barth, Susan J. Woodrow, Phoenix, for Appellees Henry and Thomas S. Henry, II, M.D., P.C.
Goodwin Raup PC by Sharon E. Ravenscroft, Jeffrey J. Campbell, Phoenix, for Appellee Flagstaff Medical Center.
¶ 1 Jared Reinen, a 19-year-old Jehovah's Witness, was involved in a rollerblading accident on June 23, 1993. He sustained a broken femur and was taken to the emergency room at Flagstaff Medical Center (FMC), where he was examined by Dr. Michael Abeshaus. After discussing available treatment options, as well as potential complications from both a pre-existing diabetic condition and his refusal to accept blood or blood products, Reinen elected to have corrective surgery. Dr. John Durham, an orthopaedic surgeon, performed the procedure on the evening of Thursday, June 24. During the following weekend, the doctor was unavailable, so Reinen's care was left to the nursing staff and the on-call physicians—Dr. Roman Lewicky, an orthopaedist, and Dr. Thomas Henry, an internist.
¶ 2 Problems ensued during the early morning hours of June 28. At approximately 2:30 a.m., Dr. Lewicky was contacted by Christa Fowler, one of the nurses on duty. The doctor ordered certain tests and instructed Fowler to contact Dr. Henry if the results were abnormal. The testimony conflicts as to whether Dr. Henry was expected to perform a formal consultation or merely to assist in the interim management of the patient. In any event, Dr. Henry gave verbal orders to the nurse upon receiving the test results by telephone. He did not personally examine Mr. Reinen.
¶ 3 The patient's condition became progressively worse over the next several days. He was eventually transferred to St. Joseph's Hospital in Phoenix and remained there for over a month. He was rehospitalized several times during subsequent years until his death in 1998. ¶ 4 Before he died, Reinen sued several of his health care providers, their spouses, and their professional corporations or employers. He alleged, among other things, that Dr. Lewicky violated acceptable standards of medical practice by not calling for a critical care/internal medicine consultation; that Dr. Henry, upon receiving a call in the early morning hours of June 28th, breached appropriate medical standards by failing to examine the patient and/or make sufficient inquiry of the nursing staff; and that, when no physician arrived to examine and treat the patient, Nurse Fowler violated her duty of care by failing to obtain a doctor from the emergency room or elsewhere and by not immediately informing her supervisor of the situation.
¶ 5 At trial, Dr. William O'Riordan testified as the plaintiff's expert witness on post-operative care. No objections to his qualifications were made either prior to or during his appearance on the witness stand. However, following the plaintiff's case, and after O'Riordan had returned to California, Dr. Henry moved for dismissal, arguing that the witness had been incompetent to testify concerning the applicable standard of care. Defendants Lewicky and FMC joined in this motion.
¶ 6 Defense counsel also moved for directed verdicts on the ground that causation evidence was lacking. Dr. Henry had testified during the plaintiff's case that he would not have altered Reinen's course of treatment if called on to do an internal medicine consultation or take over the patient's care. Based on this testimony, the trial court concluded that there could be no proximate cause finding, even assuming the treatment provided by Dr. Lewicky and Nurse Fowler fell below acceptable standards of practice. Thus, it dismissed Lewicky from the case and ruled that FMC could not be held vicariously liable for the acts or omissions of its nurse.
¶ 7 The court further agreed with the challenge to Dr. O'Riordan's qualifications and terminated the case against Dr. Henry, reasoning that in the absence of any admissible expert testimony concerning the applicable standard of care and/or proximate causation, the plaintiff had failed to carry his burden of proof. The cases against the remaining defendants went to the jury, which returned defense verdicts.
¶ 8 The court of appeals affirmed the trial court proceedings in a memorandum decision, and a petition for review was filed here. Following Reinen's death, his estate was substituted as the plaintiff.
¶ 9 The trial court determined at the close of the plaintiff's case that Dr. O'Riordan was incompetent to testify regarding the standard of care for an internal medicine specialist in Arizona. As stated above, however, no foundational objections were raised either prior to or during O'Riordan's testimony. The defendants chose instead to wait until the close of the plaintiff's evidence to make their challenge. Clearly, this was too late. An objection to proffered testimony must be made either prior to or at the time it is given, and failure to do so constitutes a waiver. This contemporaneous objection rule has been applied by us in numerous contexts. See, e.g., State v. Detrich, 188 Ariz. 57, 64, 932 P.2d 1328, 1335 (1997)
(); State v. Bolton, 182 Ariz. 290, 306 n. 5, 896 P.2d 830, 846 n. 5 (1995) (regarding witness testimony); Harrington v. Beauchamp Enters., 158 Ariz. 118, 120, 761 P.2d 1022, 1024 (1988) (regarding jury instruction); State v. Graham, 97 Ariz. 408, 416, 401 P.2d 141, 147 (1965) (). The court of appeals stated in State v. Swafford that "if an objection is made at some point in time during the trial where the court may take [appropriate] action ..., then the objection will be considered timely unless it appears that counsel deliberately bypassed the opportunity to make a timely objection." 21 Ariz.App. 474, 481, 520 P.2d 1151, 1158 (1974). In the case of expert testimony, a contemporaneous objection also affords the party offering the evidence an opportunity to supply any missing foundation. Here, it appears that defense counsel purposely decided as a strategic matter not to object when the witness was being qualified or examined. By failing to complain before or during Dr. O'Riordan's testimony, the defendants waived any legal objection to his qualifications or the foundation for his opinions.
¶ 10 Moreover, because O'Riordan's testimony provided evidence of a breach of the standard of care by Dr. Henry and a causal relationship to Reinen's injuries, the dismissal of Henry from the case was erroneous. Dr. O'Riordan testified, in part, as follows:
Dr. Henry's motion should have been denied.
¶ 11 The trial judge granted the motions of Dr. Lewicky and FMC because he found insufficient evidence that any act or omission on their part proximately caused Reinen's injuries. This determination was based on the testimony of Dr. Henry, discussed above, that he would not have changed the course of treatment. The defendants argue that this admission, standing alone, absolves them of liability.
¶ 12 As set forth in Orme School v. Reeves, however, a directed verdict is appropriate "only when, without weighing the credibility of the witnesses, there is [no] difference of opinion over the factual issues in controversy." 166 Ariz. 301, 308-09, 802 P.2d 1000, 1007-08 (1990) (quoting Galloway v. United States, 319 U.S. 372, 407, 63 S.Ct. 1077, 1096, 87 L.Ed. 1458 (1943) (Black, J., dissenting)) (emphasis added). "The credibility of a witness' testimony and the weight it should be given are issues particularly within the province of the jury." Kuhnke v. Textron, Inc., 140 Ariz. 587, 591, 684 P.2d 159, 163 (Ariz.Ct.App.1984). The court or jury is not compelled to believe the uncontradicted evidence of an interested party. See City of Tucson v. Apache Motors, 74 Ariz. 98, 107, 245 P.2d 255, 261 (1952)
. Thus, the jurors in this case were entitled to accept or reject Dr. Henry's claim that he would not have changed the course of Reinen's treatment.
¶ 13 Furthermore, the testimony of Dr. O'Riordan was sufficient to create jury questions regarding the actions of Dr. Lewicky and Nurse Fowler, as well as their causal relationship to Reinen's injuries. O'Riordan stated that the applicable standard of care required Dr. Lewicky to request a critical care consult on the morning of Monday, June 28. Trial testimony conflicted regarding the content of communications...
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