McGuire By and Through McGuire v. DeFrancesco

• Decision Date: 25 October 1990
• Docket Number: No. 1,CA-CV,1
• Citation: McGuire By and Through McGuire v. DeFrancesco, 811 P.2d 340, 168 Ariz. 88 (Ariz. App. 1990)
• Parties: Edward McGUIRE, By and Through his next friend, David McGUIRE; David McGuire, individually, and Colleen McGuire, Plaintiffs-Appellants, v. Salvatore J. DeFRANCESCO; Thomas West Professional Association: Obstetrics & Gynecology, a corporation; and St. Joseph's Hospital and Medical Center, an Arizona corporation; Does I through XXX, inclusive, Defendants-Appellees. 88-433.
• Court: Arizona Court of Appeals

Page 340

811 P.2d 340

168 Ariz. 88

Edward McGUIRE, By and Through his next friend, David McGUIRE; David McGuire, individually, and Colleen McGuire, Plaintiffs-Appellants, v.Salvatore J. DeFRANCESCO; Thomas West Professional Association: Obstetrics & Gynecology, a corporation; and St. Joseph's Hospital and Medical Center, an Arizona corporation; Does I through XXX, inclusive, Defendants-Appellees.

No. 1 CA-CV 88-433.

Court of Appeals of Arizona Division 1, Department C.

Oct. 25, 1990.

Reconsideration Denied Dec. 27, 1990.

Review Denied June 4, 1991.

[168 Ariz. 89] Charles M. Brewer, Ltd., Phoenix, for plaintiffs-appellants.

Snell & Wilmer by Barry D. Halpern, Laura W. Janzik and Eileen J. Moore, Phoenix, for defendants-appellees DeFrancesco and Thomas West Professional Ass'n.

Mitten, Goodwin & Raup by Roger C. Mitten, Phoenix, for defendant-appellee St. Joseph's Hosp. and Medical Center.

OPINION

FIDEL, Presiding Judge.

One who sues a health care provider for malpractice in Arizona must prove that the defendant failed to exercise the degree of care that would be expected under similar circumstances of a reasonably prudent member of the same profession or class within this state.Ariz.Rev.Stat.Ann. § 12-563(1976).May a plaintiff prove that a board-certified medical specialist violated this statewide standard by expert testimony that the physician's care fell below minimum standards required of his specialty in every state including Arizona?And may a plaintiff prove that a hospital and its staff violated this statewide standard by expert testimony that the hospital's care fell below minimum standards applicable to hospitals in every state including Arizona?These are the essential questions of this appeal.A secondary question is whether an expert must prove first-hand acquaintance with Arizona practice to qualify to testify that a nationwide minimum standard applies to defendants practicing within this state.

HISTORY

Plaintiffs' child was born on September 20, 1980, in St. Joseph's Hospital and Medical Center in Phoenix, Arizona.The attending physician was Salvatore J. DeFrancesco, M.D., a board-certified specialist in obstetrics and gynecology.The hospital performed fetal heart monitoring during earlier stages of labor, but disconnected the monitor when the mother was moved to the delivery room.The child was delivered with the umbilical cord wrapped twice around his neck and has severe defects caused by lack of oxygen during delivery.

On November 3, 1986, plaintiffs filed a medical malpractice action against Dr. DeFrancesco and St. Joseph's, among others, alleging: (1) negligent failure to monitor fetal heart rate in the delivery room; (2) negligent failure to perform caesarean section; and (3) negligent performance of mid-forceps delivery.¹

Dr. DeFrancesco and St. Joseph's eventually moved for summary judgment on the ground that plaintiffs had not identified an expert who would testify about the applicable standard of care.In response, plaintiffs submitted the affidavit of Dr. Maclyn Wade, a board-certified obstetrician and gynecologist associated with Cedars-Sinai Medical Center in Los Angeles, California.Dr. Wade has previously qualified in the Superior Court of Maricopa County as an expert on the standard of care of Arizona obstetrician-gynecologists.However, he has never lived or practiced medicine in Arizona and has no first-hand familiarity with Arizona hospital delivery practice in 1980.Dr. Wade testified at deposition that there is a minimal nationwide standard of care for obstetricians and hospitals concerning the delivery of babies, which applies in Arizona and every other state, and that defendants violated this standard by neglecting to continue fetal heart monitoring in the delivery room for plaintiffs' high risk (post-term) fetus:

Q.Based upon your affidavit, it appears that you believe that you were familiar with the standard of care in 1980 in obstetrics and gynecology in the State of Arizona.Is that your testimony, Doctor?

A.It sure is.Based upon the fact that the standard of care for the State of Arizona is the same as it is for California, as it is for New York, as it is throughout the rest of the United States for all hospitals that are under JCAH [Joint Committee on Accreditation of Hospitals] as well as all obstetricians, gynecologists who are members of the American College of Obstetricians and Gynecologists and follow their guidelines, as well as all diplomats of the American board.We all read the same literature.

Q.Doctor, you don't take the position, do you, sir, that the Joint Committee on Accreditation of Hospitals sets the standard of care in this country, do you?

A.They set a standard of care, minimal care for hospitals to follow, yes.

. . . . .

Q.Do you take the position that the American College guidelines set the standard of care for obstetricians in this country?

A.They set a minimal standard of care, yes.

Despite this testimony, the trial court entered summary judgment in favor of defendants.The court explained:

Considering the claim against the defendant doctor, the court finds that Dr. Wade bases his opinion of the standard of care required in fetal monitoring of a 42 week pregnant mother in the delivery room to be based on his assumptions of what board certified [obstetricians] SHOULD BE DOING nationwide rather than any facts regarding what THEY WERE DOING IN ARIZONA in 1980.This is insufficient foundation under the law for giving an opinion....

(Emphasis in original.)This appeal followed.

STATEWIDE STANDARD OF CARE

In response to a motion for summary judgment, a medical malpractice plaintiff must show that expert testimony is available to establish that the provider's treatment fell below the applicable standard of care.Pendleton v. Cilley, 118 Ariz. 84, 86-87, 574 P.2d 1303, 1305-06(1978).The first issue we address is whether Dr. DeFrancesco's care is measured by a statewide or a non-geographic obstetrical standard.

In Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156(1972), the Arizona Supreme Court distinguished between specialists and general practitioners in deciding whether physicians should be held to a geographic or general standard of care.The court concluded that the treatment of general practitioners should continue to be evaluated by reference to the geographic standard of care in the same or similar community.108 Ariz. at 403, 499 Ariz. at 159.Specialists, however, should be held, without geographic reference, to "the standard of care and treatment commonly practiced by physicians engaged in the same type of specialty."Id.

In 1976 the Arizona Legislature supplanted this distinction by adopting a statewide standard of care for all health care providers.Ariz.Rev.Stat.Ann. § 12-563(1976) requires proof in any medical malpractice action that

[t]he health care provider failed to exercise that degree of care, skill and learning expected of a reasonable prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances....

Id. at 12-563(1).

This court has interpreted § 12-563 to hold specialists, like other health care providers, to a statewide standard of care.Gaston v. Hunter, 121 Ariz. 33, 53 n. 21, 588 P.2d 326, 346 n. 21(App.1978);see alsoM. Udall & J. Livermore, Law of Evidence§ 25, at 44(1982).Plaintiffs point out, however, that our Gaston footnote to this effect was merely dictum.Plaintiffs urge us to now interpret § 12-563 more narrowly to provide a statewide standard for general practitioners only, leaving unaltered the general specialty standard of Kronke.We decline to do so.The statute makes no such distinction, referring to the inclusive category of "health care providers" as a whole.

Plaintiffs point out that in Johnson v. University Hospital, 148 Ariz. 37, 43, 712 P.2d 950, 956(App.1985), we described the standard established by § 12-563 as "substantially the same as had been applied in Arizona prior to passage of the Health Care Act[Ariz.Rev.Stat.Ann. § 12-561 et seq.(1976) ], when actions were based upon common law negligence."This statement, when examined in the present context, is overbroad.A statewide standard for general practitioners may or may not correspond to the preexisting "same or similar community" standard; a statewide standard for specialists may or may not correspond to the preexisting non-geographic specialty standard.The standards may as a practical matter prove substantially the same, particularly for specialists whose certification procedures require adherence to certain minimal standards regardless of locale.This correspondence, however, must be proven.Thus, Johnson does not alter our conclusion that an Arizona plaintiff must establish "the degree of care, skill and learning expected of a reasonable prudent health care provider in [that specialty] within the state."Ariz.Rev.Stat.Ann. § 12-563(emphasis added).

STATEWIDE APPLICATION OF A NATIONAL SPECIALTY STANDARD

Defendants argue, however, that § 12-563 precludes even the effort to prove, as a point...