Russo v. Diethrich

• Court: Arizona Court of Appeals
• Writing for the Court: JACOBSON; CONTRERAS, P. J., and OGG
• Citation: Russo v. Diethrich, 126 Ariz. 522, 617 P.2d 30 (Ariz. App. 1980)
• Decision Date: 29 July 1980
• Docket Number: CA-CIV,No. 1,1
• Parties: Philip J. RUSSO and Karen Russo, his wife, Plaintiffs-Appellants, v. Edward B. DIETHRICH, M. D., Robert Payne, M. D., Samuel A. Kinard, M. D., Defendants-Appellees. 4642.

Page 30

617 P.2d 30

126 Ariz. 522

Philip J. RUSSO and Karen Russo, his wife, Plaintiffs-Appellants, v. Edward B. DIETHRICH, M. D., Robert Payne, M. D., Samuel A. Kinard, M. D., Defendants-Appellees.

No. 1 CA-CIV 4642.

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

July 29, 1980.

Rehearing Denied Sept. 9, 1980.

Review Denied Sept. 30, 1980.

Norman Herring, Phoenix, for plaintiffs-appellants.

Martori, Meyer, Hendricks & Victor by Edwin F. Hendricks, R. Douglas Dalton, Andrew D. Hurwitz, Phoenix, for defendants-appellees.

OPINION

JACOBSON, Judge.

The sole issue raised in this appeal of a medical malpractice case is whether the plaintiff knew or should have known of the alleged malpractice more than two years prior to filing his action so as to be barred by the applicable statute of limitations.

This tort action, based upon medical malpractice, was filed on November 7, 1975 by the plaintiffs, Philip J. Russo and Karen Russo, his wife, against defendants Edward B. Diethrich, M.D., Robert Payne, M.D., and Samuel A. Kinard, M.D. The malpractice alleged was that on August 2, 1972, the medical doctors comprising the Arizona Heart Institute (AHI), a department of St. Joseph's Hospital and Medical Center in Phoenix, Arizona, performed unnecessary coronary bypass surgery on the plaintiff, Philip Russo (Russo). Following extensive discovery, the defendants moved for summary judgment on the basis that plaintiffs' action was barred by the applicable statute of limitations, A.R.S. § 12-542(B). This statute, at the time the action was filed, provided in pertinent part:

A cause of action for injury or death against a physician or surgeon ... based upon ... professional negligence ... shall accrue as of the date of injury and shall be commenced and prosecuted within ... two years after the injured party discoveres or through the use of reasonable diligence should have discovered the malpractice .... These time limitations shall be tolled for any period during which such person has failed to disclose any act, error or omission upon which such action is based and which through the use of reasonable diligence should have been known to him.

(Emphasis added.)

The trial court granted defendants' motion for summary judgment and plaintiffs have appealed.

On appeal, the plaintiffs raised the following issues:

(1) That an issue of fact exists as to whether Philip Russo knew or through the exercise of reasonable diligence should have known of the alleged malpractice of the defendants more than two years prior to filing his complaint;

(2) That the defendants knew that the surgery was unnecessary and their failure to so inform the plaintiffs tolled the statute of limitations;

(3) That the applicable statute of limitations in this case is the three year statute for fraud; and

(4) That the continuing patient-physician relationship tolls the statute of limitations.

The facts are as follows. In May of 1972, Russo suffered a myocardial infarction in Medina, New York, and was treated by Dr. John P. Fernandez, a cardiologist. Following this heart attack, Russo suffered severe chest pains and as a consequence, in the latter part of July, 1972, was admitted to AHI in Phoenix for evaluation.

At AHI, Russo underwent various testing, including a cardiac catheterization performed on July 26, 1972. A cardiac catheterization is a process by which dye is injected into the arteries in the region of the heart and the physician can then visually follow the flow of blood in the arteries and into the heart. Films are taken of this process consisting of cines and spot films (Polaroid photos). The catheterization revealed that Mr. Russo suffered from an essentially completely occluded (blocked) right coronary artery and thus blood was not adequately flowing to the portion of the heart supplied by that artery.

Based upon the various tests, including the catheterization, Dr. Diethrich, Chief of Cardiovascular Surgery at AHI, recommended to Russo that he undergo surgery consisting of a bypass graft around the occluded portion of the right coronary artery. This operation, if successful, would restore the flow of blood to that portion of the heart. Russo testified that he was told by Dr. Diethrich that if the operation was not performed, he would die. Apparently, the recommendation for surgery was the result of a consultation between Dr. Diethrich, Dr. Payne and Dr. Kinard.

The surgery was performed on August 2, 1972, and Russo was released two weeks later. He was readmitted to St. Joseph's on two occasions in October, 1972 for pain as a result of "post-cardiotomy syndrome" (agitated depression). In late October, 1972, Russo returned to New York and again came under the care of his cardiologist, Dr. Fernandez.

Following his surgery, Russo complained of disabling pain on a daily basis and as a result he was hospitalized on several occasions in New York. In connection with Dr. Fernandez' continuing treatment of Russo, he, on or about November 1, 1972, obtained the AHI report of the July 26, 1972 catheterization performed on Russo. According to Dr. Fernandez, this report showed a complete occlusion of Russo's right coronary artery. It was Dr. Fernandez' opinion that if the catheterization report was correct, and the right coronary artery was totally occluded, it meant the heart muscle which would have been served by that artery was already so destroyed that to bypass the occluded artery into the dead muscle would serve no useful purpose.

In order to verify the suspicion raised by the catheterization report, Dr. Fernandez on April 6, 1973, wrote to AHI and requested the films taken in connection with the catheterization. Approximately two weeks later, he received the "spot films" taken on July 26, 1972 which seemed to confirm the total occlusion of the right coronary artery. In early July, 1973, Dr. Fernandez took the films and report to a cardiovascular conference in Rochester, New York. Without revealing that the patient had already received surgery, Dr. Fernandez requested an opinion as to the necessity for surgery. Dr. Fernandez testified that the result of this presentation was that the cardiovascular conference felt surgery was not recommended.

Approximately two weeks later, Dr. Fernandez told Russo that he suspected the bypass surgery had not been necessary. Russo's counsel, before the trial court, conceded that this advice was given in "late July or early August, 1973."

Dr. Fernandez, in an affidavit filed in the trial court explaining his depositional testimony concerning the advice given to Russo, stated:

I told Mr. Russo that I did not think that the surgery had done anything to him which would be responsible for the pain. I also thought that the bypass surgery had not been of any benefit to him, but that there was a possibility that the bypass graft had remained patent (open). This patency or occlusion of the bypass graft could only be proved, one way or the other, by another cardiac catheterization.

While Dr. Fernandez recommended that Russo undergo another catheterization, this...