Peacock v. Samaritan Health Service

• Decision Date: 28 April 1988
• Docket Number: CA-CIV,No. 1,1
• Citation: 765 P.2d 525,159 Ariz. 123
• Parties: Anthony J. PEACOCK, Plaintiff-Appellant, v. SAMARITAN HEALTH SERVICE, dba Good Samaritan Medical Center, a corporation, Defendant-Appellee. 8968.
• Court: Arizona Court of Appeals

Page 525

765 P.2d 525

159 Ariz. 123

Anthony J. PEACOCK, Plaintiff-Appellant, v. SAMARITAN HEALTH SERVICE, dba Good Samaritan Medical Center, a corporation, Defendant-Appellee.

No. 1 CA-CIV 8968.

Court of Appeals of Arizona Division 1, Department A.

April 28, 1988.

Review Denied Jan. 17, 1989.

[159 Ariz. 124] Arthur M. Johnson, Vern E. Gasser, Phoenix and Oplinger & Gamble by Richard H. Oplinger, Kenneth J. Januszewski, Douglas H. Fitch, Tempe, for plaintiff-appellant.

Weyl, Guyer, Macban & Olson, P.A. by Thomas G. Bakker, Michael L. Barth, Phoenix, for defendant-appellee.

OPINION

BROOKS, Judge.

This is an appeal from a summary judgment entered in favor of the defendant hospital in a medical malpractice action. We reverse.

FACTS

In March of 1984, plaintiff-appellant Anthony Peacock was involved in an automobile accident and incurred minor injuries. When he failed to report to work a few days later, his fellow employees, Richard Schrier and Fred Stevens, became concerned and searched him out. When they arrived at Peacock's apartment, he answered the door in the nude and made bizarre remarks including the statement that he was "still alive." The room was dark and unkempt; there was a large burned spot on the carpet and a hunting rifle was lying on the floor. A bedroom window had been broken.

Fearing that Peacock might be suicidal and in need of medical care, Schrier and Stevens decided to take him to Desert Samaritan Hospital, a branch of Samaritan Health Service. Once there, Stevens and Schrier described Peacock's behavior to the admitting nurses and to the emergency room physician. After examining Peacock, the decision was made to admit him to the hospital. However, since there was no appropriate bed space available at Desert Samaritan, Schrier was asked to take Peacock to another of Samaritan's facilities, Good Samaritan Medical Center.

Upon their arrival at Good Samaritan, Schrier described Peacock's bizarre behavior to James Hicks, M.D., a psychiatrist. Dr. Hicks asked him if he thought that Peacock was suicidal, and Schrier answered in the affirmative.

During the initial examination by Dr. Hicks, Peacock described experiences which included awakening in a "dream world" following the motor vehicle accident, delusions that the world was going to end, and the belief that he was the last man on earth. He told Dr. Hicks that he had no previous experiences of this nature and had no recent contact with illicit drugs. Dr. Hicks noted that there was some evidence of psychomotor agitation, increased speech production, and moderate disorganization. The doctor also noted that Peacock was easily distracted, and that there was some "intermittent derailment of thought."

Peacock was admitted to the Mental Health Unit which was located on the fourth floor of the hospital. In his admitting instructions, Dr. Hicks cautioned that "the patient is to be observed, monitored and watched for worsening of his symptoms or evidence of a delirium" and added that Peacock should be secluded and restrained as needed.

Two days later, another psychiatrist, Howard Cutler, M.D., was assigned to Peacock as his ward resident. Dr. Cutler noted the possibility that Peacock was in a manic episode. He treated him with various medications and recommended continued evaluation and observation. Dr. Cutler later noted that if the patient's symptoms did not clear within a brief period, he would consider instituting lithium therapy. Dr. Cutler stated that Peacock should be observed and he was aware of Dr. Hicks' prior order that Peacock should be secluded and restrained as needed. The decision with respect to seclusion or restraints could be determined by either a physician or the nurse. However, to provide proper patient security, the hospital's policy dictated that windows in the Mental Health Unit were to be fastened so that they could not be opened from the inside.

On March 15, 1984, Schrier visited Peacock at the hospital and was sufficiently disturbed by his behavior that he telephoned Bertha McGowan, the charge nurse, and informed her that the patient was acting strangely. Nurse McGowan went to Peacock's room at approximately 2:30 P.M. and noted a problem which she claimed that she reported to Dr. Cutler. During Nurse McGowan's absence (although other nurses were stationed on the floor) Peacock either jumped or fell through the fourth floor window of his room and suffered severe physical injuries.

PROCEDURAL HISTORY

Peacock sued Samaritan Health Service (Samaritan) for damages alleging negligent care and supervision. Samaritan filed its answer and submitted a set of interrogatories. In answering the interrogatories, Peacock identified Samaritan's own expert witnesses for the purpose of establishing the hospital's deviations from the applicable standard of care for patients housed in a psychiatric ward. Samaritan then filed a motion for summary judgment arguing that there was an absence of expert testimony necessary to establish a prima facie case for medical malpractice.

In response to the motion, Peacock argued that an expert was not necessary because discovery was still in its early stages. Alternatively, he argued that there was sufficient expert testimony contained in the existing depositions of Drs. Hicks and Cutler and Nurse McGowan to establish deviation from the applicable standard. After the trial court granted summary judgment in favor of Samaritan, Peacock filed a motion for reconsideration and an alternative motion to dismiss his complaint without prejudice. He later filed the affidavit of Donald J. Garland, M.D., to support his claim that Samaritan deviated from the proper standard of care. The trial court denied both motions without comment.

ISSUES AND LEGAL ANALYSIS

On appeal, Peacock first argues that the trial court was deprived of available evidence because Maricopa County Local Rule 2.14 prohibits the filing of discovery materials. This argument was not presented at the trial level and it is therefore waived. Fendler v. Phoenix Newspapers, Inc., 130 Ariz. 475, 481, 636 P.2d 1257, 1263 (App.1981). Further, Rule 2.14 does not preclude the use of depositions and other discovery papers as exhibits to motions or responses. See Gordinier v. Aetna Cas. & Sur. Co., 154 Ariz. 266, 267, 742 P.2d 277, 278 (1987). Peacock acknowledges that he failed to properly attach copies of the relevant discovery material to his response to Samaritan's motion for summary judgment. However, Samaritan did not dispute the accuracy of Peacock's representations as to the contents of the depositions and answers to interrogatories. Thus, those representations were conceded for the purpose of the motion for summary judgment, and Peacock's failure to attach the material to his response to the motion was not fatal to his position. Id., n. 2.

Peacock next contends that the trial court misread Gurr v. Willcutt, 146 Ariz. 575, 707 P.2d 979 (App.1985) to require that every plaintiff in a medical malpractice action must present expert testimony to prove that there was a violation of the applicable standard of care. He argues that expert testimony was not required under the circumstances of this case. Alternatively, he contends that testimony elicited from Samaritan's own employees met the expert testimony requirement. Finally, he argues that the belated affidavit of Dr. Garland, filed after entry of summary judgment, established the existence of a genuine issue of material fact.

Arizona Revised Statutes § 12-563 sets forth the elements of a cause of action for medical malpractice:

The following shall be necessary elements of proof that injury resulted from the failure of a health care provider to follow the accepted standard of care:

1. The 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; and

2. Such failure was the proximate cause of the injury.

It is clear that § 12-563 does not require an interpretation mandating the use of expert testimony in every case. The statute only defines the elements of the cause of action. It does not describe how a plaintiff must prove these elements. However, there is substantial case law on point.

In order for a plaintiff to establish the statutory elements to maintain a malpractice claim, he must normally utilize medical testimony by qualified physicians. In Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975), our supreme court reaffirmed the holding in Abernethy v. Smith, 17 Ariz.App. 363, 498 P.2d 175 (1972), in pertinent part:

The question of a physician's skill or failure to use his skill is a material question of fact, and on a motion for summary judgment, the party opposing the motion must show that at trial, he would be able to show evidence that the physician lacked or did not apply the proper skills.

111 Ariz. at 544, 534 P.2d at 1054. See also Barrett v. Samaritan Health Serv., Inc., 153 Ariz. 138, 141, 735 P.2d 460, 463 (App.1987); Gregg v. National Med. Healthcare Serv., Inc., 145 Ariz. 51, 54, 699 P.2d 925, 928 (App.1985). An exception to the general rule requiring the use of expert medical testimony occurs where "the negligence is so grossly apparent that a layman would have no difficulty in recognizing it." Riedisser, 111 Ariz. at 544, 534 P.2d at 1054; see also Revels v. Pohle, 101 Ariz. 208, 210, 418 P.2d 364, 366 (1966).

Peacock assumes that the trial court interpreted Gurr v. Willcutt to exclude the recognized exception, but the record does not support this assumption. Further, Gurr does not discuss the exception to the general rule because the exception was in no way applicable to the facts before the court in that case. The case involved the diagnosis and treatment of a heart condition and whether an appropriate pacemaker had been installed. That medical diagnosis and treatment was well...