Ritchie v. Krasner

• Decision Date: 21 April 2009
• Docket Number: No. 1 CA-CV 08-0099.,1 CA-CV 08-0099.
• Parties: William RITCHIE, surviving father of Jeremy Ritchie, on behalf of himself and Darlene Ritchie, the surviving mother of Jeremy Ritchie; and Korbin Underwood, the surviving child of Jeremy Ritchie, Plaintiffs/Appellees, v. Scott A. KRASNER, M.D. and Teri Lee Krasner, husband and wife; Scott A. Krasner, M.D., P.C., Defendants/Appellants.
• Court: Arizona Court of Appeals

211 P.3d 1272

221 Ariz. 288

William RITCHIE, surviving father of Jeremy Ritchie, on behalf of himself and Darlene Ritchie, the surviving mother of Jeremy Ritchie; and Korbin Underwood, the surviving child of Jeremy Ritchie, Plaintiffs/Appellees, v. Scott A. KRASNER, M.D. and Teri Lee Krasner, husband and wife; Scott A. Krasner, M.D., P.C., Defendants/Appellants.

No. 1 CA-CV 08-0099.

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

April 21, 2009.

Law Offices of Richard W. Shapiro, P.L.C. by Richard W. Shapiro, and Valder Law Offices, P.C. by Michael J. Valder, Phoenix, Attorneys for Plaintiffs/Appellees.

Kunz Plitt Hyland Demlong & Kleifield by Steven Plitt, Daniel Maldonado, Phoenix, Attorneys for Defendants/Appellants.

OPINION

IRVINE, Judge.

¶ 1 Dr. Scott A. Krasner, Terri Lee Krasner, and Scott A. Krasner, M.D., P.C. (together, "Krasner") appeal the jury verdict in favor of William Ritchie, Darlene Ritchie, and Korbin Underwood (together, "Ritchies"). Krasner raises several issues on appeal. We hold that, even absent a formal doctor-patient relationship, a doctor conducting an Independent Medical Examination ("IME") owes a duty of reasonable care to his or her patient. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 This appeal arises from a jury verdict that found Krasner liable for medical malpractice and the wrongful death of Jeremy Ritchie ("Jeremy"). The case involved several defendants, but we will limit our discussion to the relevant facts regarding Dr. Krasner and his appeal.

¶ 3 Jeremy was the father of Korbin and the son of William and Darlene Ritchie. In April of 2000, Jeremy injured his back while at work. He sustained a bruised spinal cord that caused swelling and compression of the cervical spinal cord. Jeremy felt pain and numbness consistent with the injury and sought treatment within two days of the incident.

¶ 4 Jeremy reported his symptoms to Dr. Robinson at HealthSouth Occupational Medicine, but Jeremy disagreed with Dr. Robinson's diagnosis and next went to Emergency Chiropractic. The chiropractors recommended to Paula Insurance ("Paula"), Jeremy's worker's compensation carrier, that he visit a specialist to evaluate his symptoms. The carrier retained Dr. Krasner to perform an IME. In its request to Krasner, Paula described Jeremy's injury as "a cervical and lumbar strain as a result of [a workplace] accident. . . . Ritchie complained of stiffness and pain in his neck and lower back, tingling in fingers, arms and legs. He was diagnosed with cervical and lumbar strains." Paula asked Dr. Krasner to conduct the evaluation and answer the following questions:

1. Please describe the findings, diagnosis, prognosis and their relationship to the injury of 04/11/00?

2. Do you feel Mr. Ritchie's current symptoms exacerbated a pre-existing back condition? If so, do you feel he is now at a pre-injury status?

3. If not, to what extent do you feel his current symptomatology is attributable to the 04/11/00 industrial incident, and what treatment do you recommend?

4. Do you feel he is capable of regular work? If not, can he perform light work? Please list the restrictions.

¶ 5 Jeremy signed a notice prior to his examination. It stated, "It is very important that you realize that no Doctor/Patient relationship exists between you and Dr. Krasner. . . . This is done to insure that all findings will be neutral, and that the evaluators are completely independent and not involved in your disability claim or source." Krasner examined him, ordered and reviewed an MRI of the lumbar spine, and reported to Paula that Jeremy's "injury is stationary," "[t]here is no indication for supportive care," and "[t]here is no indication for any work restrictions . . . and I feel he is medically able to perform unrestricted work." In reliance on Dr. Krasner's report, Paula terminated Jeremy's benefits. In an affidavit, Jeremy stated: "I was advised that my condition was stable, that I did not need further medical treatment, and that I could go back to work without restriction. . . ."

¶ 6 Jeremy's condition continued to deteriorate and he sought further treatment. He did not qualify for the Arizona Health Care Cost Containment System ("AHCCCS") coverage because he earned too much money during the previous year. Eventually, Jeremy did qualify for AHCCCS and saw Dr. Solomon, a neurologist. She diagnosed Jeremy with a "cervical spinal cord compression and ordered immediate spinal cord surgery." The surgery halted further deterioration of Jeremy's spinal cord, but "during the eight months before Jeremy Ritchie's spinal cord decompression surgery, the undiagnosed spinal cord compression contributed to an increasing and ongoing injury to Mr. Ritchie's spinal cord," causing part of the cord to die.

¶ 7 Jeremy developed a condition called "central pain syndrome," which caused constant pain and discomfort. Dr. Solomon prescribed Oxycontin and Oxycodone, both narcotics, for the central pain syndrome. She also prescribed medications to aid his sleep and to reduce his nerve and muscle spasms. In April of 2004, Jeremy died of an accidental overdose, characterized as "the synergistic effects of the various medications he was taking for his cervical spinal cord injury."

¶ 8 In December 2002, prior to his death, Jeremy filed a medical malpractice complaint against Dr. Robinson, HealthSouth, Emergency Chiropractic and its treating chiropractors, Dr. Krasner, and other entities. After his death, Jeremy's parents and Korbin amended the complaint to reflect a medical malpractice and wrongful death action.

¶ 9 After Dr. Solomon was added as a defendant and several other defendants were dismissed, the case went to trial. The trial court made the decision to exclude evidence regarding Jeremy's history of alcoholism and felony convictions, but allowed evidence of Jeremy's financial condition and his loss of worker's compensation. The court also refused to give a jury instruction on intervening/superseding cause, opting instead to use the standard Revised Arizona Jury Instructions ("RAJI") regarding causation. During the Ritchies' closing argument, counsel asked the jury to find no liability for Dr. Solomon. Ultimately, the jury returned a verdict in favor of the Ritchies for $5 million. It found Krasner 28.5% at fault, Emergency Chiropractic 37% at fault, Dr. Howe of Emergency Chiropractic 28.5% at fault, and Dr. Robinson 6% at fault. The jury assigned no fault to Jeremy or Dr. Solomon. From this verdict, Krasner appeals.

¶ 10 We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-2101(B) and (D) (2003).

DISCUSSION

I. Krasner's Legal Duty

¶ 11 In order to maintain a negligence claim, "a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007) (hereinafter, "Gipson II"). The threshold is sue is whether Krasner had a legal duty to protect Jeremy from injury or harm. Stanley v. McCarver, 208 Ariz. 219, 221, ¶ 5, 92 P.3d 849, 851 (2004). The existence of a duty is generally a question of law, and we examine whether a duty exists de novo. Id.; Diggs v. Ariz. Cardiologists, 198 Ariz. 198, 200, ¶ 11, 8 P.3d 386, 388 (App.2000). The other elements of negligence are factual issues, and are generally within the province of the jury. Gipson II, 214 Ariz. at 143, ¶ 9, 150 P.3d at 230. We review the evidence in the light most favorable to upholding the jury verdict. Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶ 13, 961 P.2d 449, 451 (1998). We will uphold the verdict if substantial evidence exists that permits reasonable jurors to reach the result. Id.

A. An IME Doctor's Duty

¶ 12 A duty may arise even in the absence of a formal relationship. Stanley, 208 Ariz, at 221, ¶ 7, 92 P.3d at 851. It can arise from a relationship between the parties, a contractual relationship, or any number of other types of contacts. Id. "A special or direct relationship, however, is not essential in order for there to be a duty of care." Gipson II, 214 Ariz, at 145, ¶ 18, 150 P.3d at 232.

¶ 13 Krasner places great reliance on Hafner v. Beck, 185 Ariz. 389, 916 P.2d 1105 (App.1995). In Hafner, Dr. Beck conducted an independent psychological examination of the plaintiff at the request of the plaintiff's workers' compensation carrier. Id. at 390, 916 P.2d at 1106. Dr. Beck reported that the plaintiff "required no further psychological treatment and had no psychological impairment related to her industrial accident." Id. Because of his conclusion, the plaintiff lost compensation benefits and psychotherapy treatment for several months. Id. Hafner applied the traditional rule that a duty arises only when a doctor-patient relationship exists. Id. at 391, 916 P.2d at 1107. As we stated in Diggs, however, courts should narrowly construe Hafner's assertion that a duty arises only when a formal doctor-patient relationship exists. Diggs, 198 Ariz, at 201, ¶ 16, 8 P.3d at 389. A doctor has no duty to the patient only when the doctor has no intent "to treat, care for or otherwise benefit the employee." Hafner, 185 Ariz, at 392, 916 P.2d at 1108. Stanley acknowledged, however, that a formal relationship is not the only source of a doctor's duty toward a patient. Stanley, 208 Ariz. at 221, ¶ 7, 92 P.3d at 851.

¶ 14 Stanley provides a number of factors that courts may consider when determining the existence of a duty. Id. at 223, ¶ 12, 92 P.3d at 853. These include,

whether the doctor was in a unique position to prevent harm, the burden of preventing harm, whether the plaintiff relied upon the doctor's diagnosis or interpretation, the closeness of the connection between the defendant's conduct and the injury suffered, the degree of...