Hiser v. Randolph, 1

• Decision Date: 29 July 1980
• Docket Number: No. 1,CA-CIV,1
• Citation: 617 P.2d 774,126 Ariz. 608
• Parties: H. Louis HISER, Individually as surviving spouse of Bonita Kae Hiser, deceased, on behalf of himself and the minor child of Mr. and Mrs. Hiser, Plaintiff- Appellant, v. W. Alan RANDOLPH and Karin C. Randolph, husband and wife, Defendants-Appellees. 4303.
• Court: Arizona Court of Appeals

Page 774

617 P.2d 774

126 Ariz. 608

H. Louis HISER, Individually as surviving spouse of Bonita Kae Hiser, deceased, on behalf of himself and the minor child of Mr. and Mrs. Hiser, Plaintiff- Appellant, v. W. Alan RANDOLPH and Karin C. Randolph, husband and wife, Defendants-Appellees.

No. 1 CA-CIV 4303.

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

July 29, 1980.

Rehearing Denied Sept. 9, 1980.

Review Denied Sept. 23, 1980.

Paul G. Rees, Jr., Tucson, for appellant

Weyl, Guyer, MacBan & Olson, by K. C. Weyl and Thomas G. Bakker, Phoenix, for appellees.

OPINION

JACOBSON, Judge.

In this medical malpractice case, two issues are presented for resolution: (1) Whether a physician paid by a hospital to render emergency room services has a duty to render care to anyone presenting themselves to the hospital for emergency care; and (2) under the facts presented here, whether plaintiff has raised a factual issue that proximate cause exists between the failure to render care and the subsequent death of the patient.

These issues were resolved by summary judgment in favor of the defendant physician, Dr. W. Alan Randolph, and the decedent's spouse has appealed.

Since this matter was disposed of by the trial court upon the defendant doctor's motion for summary judgment, the facts are taken in a light most favorable to the party opposing that motion. Savoca Masonry Co. v. Homes and Son Construction Co., 112 Ariz. 392, 542 P.2d 817 (1975).

Mohave County General Hospital is the only hospital serving the community of Kingman, Arizona. It maintains an emergency room for the treatment of people in need of immediate medical service. Dr. Randolph and seven other doctors, comprising the medical profession in the Kingman area with admitting privileges at the hospital, established a program with the hospital by which each would take turns in manning the emergency room as the "on call physician" for a 12 hour period.

The on call physician was paid by the hospital at a basic rate of $100.00 for each day or shift served. Emergency patients and resident patients presenting themselves to the emergency room in need of immediate attention were referred to the on call physician.

From the record it appears that plaintiff's wife, Bonita Hiser, went with her husband to the emergency room at the hospital at approximately 11:45 p.m. on June 12, 1973. She was in a semi-comatose condition and the nurse in charge of the emergency room evaluated her as appearing to be very ill. Mrs. Hiser had an acute diabetic condition described as juvenile onset diabetes of the "brittle" variety. She had been treated in the emergency room at the hospital on the preceding day by Dr. Arnold of Kingman, her regular physician.

The emergency room nurse, after viewing Mrs. Hiser, immediately contacted Dr. Randolph, the "on call physician" at that time. Upon being advised as to who the patient was, Dr. Randolph stated to the nurse, at 11:50 p.m., that he would not attend or treat Mrs. Hiser, and that the nurse should call Dr. Arnold. When the nurse called Dr. Arnold he responded by stating that he would not come to the hospital at that time and that the on call physician should attend Mrs. Hiser. The nurse relayed this information to Dr. Randolph who again refused to attend to or see Mrs. Hiser. The nurse then called Dr. Lingenfelter, Chief of Staff of the hospital. After a subsequent telephone conversation between Dr. Lingenfelter and Dr. Randolph in which Dr. Randolph reiterated that he would not treat Mrs. Hiser, Dr. Lingenfelter came to the hospital and attended Mrs. Hiser, arriving at approximately 12:30 a.m. Dr. Lingenfelter immediately commenced tests and treatment for Mrs. Hiser, whom he regarded as being very ill at the time. Dr. Lingenfelter stayed at the hospital throughout the night until Dr. Arnold arrived in the morning. Mrs. Hiser died at 11:00 a.m. on June 13. As to the reason for Dr. Randolph's refusal to attend to Mrs. Hiser, a factual dispute exists. Dr. Randolph testified by deposition that the refusal was based upon his inability to adequately treat diabetes. From the evidence presented, however, a trier of fact could conclude that the refusal was based upon a personal animosity between Dr. Randolph and Mrs. Hiser or the fact that Mrs. Hiser's husband was a lawyer. Because the fact that Dr. Randolph refused to treat is undisputed and because of the posture in which this matter reaches us, we assume the refusal was medically unjustified.

The expert testimony indicates that Mrs. Hiser was suffering from acute hyperglycemia according to tests which were run by Dr. Lingenfelter immediately after he arrived at the hospital at 12:30 a.m. on June 13. On the issue of causation, Dr. Bryant I. Pickering, a Phoenix doctor specializing in internal medicine with whom Mrs. Hiser had consulted on previous occasions, testified in his deposition that given the circumstances surrounding Mrs. Hiser's condition upon her admission to the emergency room that the patient was in need of immediate care by a physician. He was further of the opinion based upon his review of the admission records that Mrs. Hiser had a substantial chance for survival if hospital emergency room procedures had been instituted immediately and that if those procedures were withheld for an hour, the chance of survival would be reduced. In particular, the doctor testified that delay in treating Mrs. Hiser's chemical imbalance "would substantially increase the risk of death."

However, when specifically asked whether Mrs. Hiser would have lived if treatment had been started immediately upon her admission to the emergency room, Dr. Pickering responded that it would be impossible to say, but the "institution of treatment immediately is extremely important."

Dr. Pickering further testified:

Q: But nevertheless, you would not undertake to say that categorically the 40 minute delay did actually mean the difference?

A: No, that is correct. I cannot say that the categorically necessarily caused the death.

As previously indicated, Dr. Randolph's motion for summary judgment was two-pronged-a lack of duty running between himself and Mrs. Hiser and a lack of proximate cause between any delay occasioned by his refusal to treat and Mrs. Hiser's subsequent death. We will deal with these issues in that order.

As to the duty question Dr. Randolph contends that medical malpractice can only arise where the relationship of physician-patient is established; that this relationship is a consensual one; and that in the absence of special circumstances not present here, no physician can be required to treat a particular patient or incur liability for failure to do so. The plaintiff, while conceding the validity of this basic rule, contends that because of the contractual relationship between Dr. Randolph and Mohave General Hospital and the bylaws of the staff of that hospital, the doctor has obligated himself to treat all emergency patients.

In examining this issue we start with the general rule, with which we agree, that a medical practitioner is free to contract for his services as he sees fit and in the absence of prior contractual obligations, he can refuse to treat a patient, even under emergency situations. ¹ Findlay v. Board of Supervisors of Mohave County, 72 Ariz. 58, 230 P.2d 526 (1951); Agnew v. Parks, 172 Cal.App. 756, 343 P.2d 118 (1959); Hurley v. Eddingfield, 156 Ind. 416, 59 N.E. 1058 (1901); Childs v. Weis, 440 S.W.2d 104 (Tex.Civ.App.1969). See also, Note, "Emergency Care", 7 U.C. Davis L.Rev. 246 (1974).

The question remains whether Dr. Randolph has contracted away this right, while being the doctor "on call" in charge of the emergency room at Mohave General Hospital and being paid the sum of $100 a day to perform those services.

It is now clear, in Arizona, that a hospital which provides emergency room services is obligated to provide those services to everyone who is in need of them. Guerrero v. Copper Queen Hospital, 112 Ariz. 104, 537 P.2d 1329 (1975). Possibly in prerecognition of the hospital's obligation to undertake these services, bylaws were adopted by Mohave General Hospital to which Dr. Randolph was a party and bound. These bylaws in pertinent part provide:

MEDICAL STAFF BY-LAWS MOHAVE GENERAL HOSPITAL

PREAMBLE

Acknowledging their responsibilities to the patient and to the hospital for the quality of medical care and recognizing that the best interests of the patient, the community and the hospital are protected by concerted effort, the physicians practicing in Mohave General hospital hereby organize themselves, subject to the ultimate authority of the hospital governing board, in conformity with Bylaws, Rules and Regulations hereinafter stated.

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ARTICLE II

PURPOSES

The purposes of this organization shall be:

1. To insure that all patients admitted to this hospital or treated in the Emergency Room receive the best possible care.

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ARTICLE III

MEMBERSHIP

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SECTION 2. ETHICS

The principle of Medical Ethics as adopted or amended by the American Medical Association shall govern the professional conduct of the members of the medical staff.

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The rules and regulations promulgated as a part of the bylaws provided as follows:

RULES AND REGULATIONS

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9. Except in emergency, no patient shall be admitted to the hospital until after a provisional diagnosis has been stated and the consent of the administrator or his delegate...