Harvest v. Craig, 1 CA-CV 97-0579.

• Citation: 990 P.2d 1080,195 Ariz. 521
• Decision Date: 11 May 1999
• Docket Number: No. 1 CA-CV 97-0579.,1 CA-CV 97-0579.
• Parties: Doris HARVEST, on behalf of herself and as mother and Reginald Lee Moore, the father of the Decedent Baby Doe Harvest, Plaintiffs-Appellants. v. Michael T. CRAIG, M.D. and Jane Doe Craig, husband and wife; Medical Environments, Inc., a foreign corporation, d/b/a Bullhead Community Hospital, Defendants-Appellees.
• Court: Arizona Court of Appeals

990 P.2d 1080
195 Ariz. 521

Doris HARVEST, on behalf of herself and as mother and Reginald Lee Moore, the father of the Decedent Baby Doe Harvest, Plaintiffs-Appellants.
v.
Michael T. CRAIG, M.D. and Jane Doe Craig, husband and wife; Medical Environments, Inc., a foreign corporation, d/b/a Bullhead Community Hospital, Defendants-Appellees

No. -0579.

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

May 11, 1999.

Review Denied November 30, 1999.

990 P.2d 1081

Law Offices of David W. Hume By: David W. Hume, Phoenix, Attorneys for Plaintiffs-Appellants

Mitten, Goodwin & Raup By: Stephen C. Yost, Phoenix, Attorneys for Defendants-Appellees.

OPINION

SULT, Judge.

¶ 1 Doris Harvest and her boyfriend, Reginald Moore, ("appellants") filed a complaint for wrongful death based on medical malpractice against Dr. Michael Craig, his wife, and Medical Environments, Inc., d/b/a Bullhead Community Hospital ("appellees"). The trial court granted summary judgment in favor of appellees, finding that appellants failed to establish their malpractice claim under the clear and convincing standard required under Arizona Revised Statutes Annotated ("A.R.S.") section 32-1473 (Supp.1997). On appeal, appellants challenge section 32-1473 on several bases. We address only one issue, finding that appellees failed to establish their entitlement to the statute's enhanced standard of proof. We therefore reverse and remand for further proceedings.

BACKGROUND

¶ 2 In 1992, appellants moved from Las Vegas to Laughlin, Nevada. The following year, Ms. Harvest became pregnant, and during the pregnancy, she returned to Las Vegas on a monthly basis to obtain prenatal care from Drs. Joseph and Kirsten Rojas.

¶ 3 On the evening of January 28, 1994, approximately thirty-five weeks into the pregnancy, Ms. Harvest experienced one to two contractions and felt "something very hot" in her abdominal region. After discharging a substantial amount of blood vaginally, she called 911.

¶ 4 When the paramedics arrived at the scene, they observed several blood clots which were approximately three to five centimeters in size. They also observed 50-75 ccs. of bloody discharge, and transported Ms. Harvest to the Bullhead Community Hospital emergency room, where she was examined by Michael Craig, M.D., an emergency-room physician. The paramedics reported the blood clots and bloody discharge to Dr. Craig and, according to Dr. Craig, he took a history from Ms. Harvest. According to Ms. Harvest, however, no one, including Dr. Craig, asked her about her prenatal history.

¶ 5 Ms. Harvest had the following risk factors, of which Dr. Craig did not become aware: she smoked and occasionally consumed alcohol during the pregnancy; she had undergone two abortions; she was treated for infections during the pregnancy; and she had a history of precipitous deliveries. Ms. Harvest did inform Dr. Craig about the blood clots and bloody discharge, but he found "no blood visible on vaginal exam and no sign of vaginal bleeding or cervical bleeding." Consequently, Dr. Craig concluded that Ms. Harvest had merely undergone a "bloody show," which is the first stage of labor involving the vaginal discharge of the mucus plug.

¶ 6 Dr. Craig telephoned Dr. Kirsten Rojas and reached her at her home in Las Vegas. He explained that Ms. Harvest was in the emergency room, thirty-five weeks pregnant, in the first stage of labor, and that her vital signs and fetal heart rate were within normal ranges. While he also told Dr. Rojas about what he believed to be the "bloody show," he failed to tell her about the blood clots and the blood loss. Dr. Craig indicated that Ms. Harvest appeared to be stable and recommended sending her home. Dr. Rojas responded that her hospital's protocol required that Ms. Harvest come to the Valley Hospital Medical Center in Las Vegas for monitoring and evaluation, and Dr. Craig indicated he would send Ms. Harvest there.

¶ 7 Before Ms. Harvest left about midnight, Dr. Craig twice reexamined her and found no substantial change in her condition. Ms. Harvest and Mr. Moore then began the two and one-half hour drive to Las Vegas. En route, Ms. Harvest experienced excruciating contractions and intense pain, and began bleeding again. This was later diagnosed as a placental abruption, which is the

990 P.2d 1082

premature separation, complete or partial, of a normally implanted placenta from the uterus. Ms. Harvest arrived at the Valley Hospital Medical Center approximately an hour later, and thereafter delivered a stillborn fetus

¶ 8 Appellants filed a complaint against Dr. Craig and the hospital alleging wrongful death based on medical malpractice. The essence of the malpractice claim was that Dr. Craig misdiagnosed Ms. Harvest's abruption as a "bloody show," and as a consequence of this misdiagnosis, inappropriately allowed her to drive to Las Vegas. Appellees moved for summary judgment arguing, inter alia, that appellants could not prove their malpractice claim by "clear and convincing evidence" pursuant to section 32-1473. In agreeing that the statute was applicable and that appellants had failed in their burden, the trial court found that

Dr. Craig appears to have done about all he could do under the circumstances and that was to make a telephone call to plaintiff's OB-GYN in Las Vegas in the middle of the night, and discuss as best he could, plaintiff's conditions with her treating physician.

Based on this conclusion, the trial court granted summary judgment to appellees, and appellants timely appealed.

ISSUES

¶ 9 Appellants raise several issues in connection with section 32-1473, including whether it violates the anti-abrogation clause, the privileges or immunities clause, or the local or special law clause of the Arizona Constitution. However, the issue that we consider dispositive, and that makes it unnecessary to address the constitutional issues, is whether the trial court erred in finding that appellees proved that section 32-1473 was applicable to the facts of this case.¹

ANALYSIS

¶ 10 Prior to 1990, the standard of proof in Arizona for all medical malpractice claims sounding in negligence was the same as for any other negligence action, namely proof by a preponderance of the evidence. See Thompson v. Sun City Community Hospital, Inc., 141 Ariz. 597, 608, 688 P.2d 605, 616 (1984). In 1990, however, the Arizona legislature enacted section 32-1473, which carved out an exception for a certain type of medical malpractice action and imposed a higher standard of proof for such claims. The statute provides in relevant part:

A. Unless the elements of proof contained in section 12-563 [the medical malpractice statute] are established by clear and convincing evidence, a physician licensed to practice...