Smethers v. Campion
| Decision Date | 22 March 2005 |
| Docket Number | No. 1 CA-CV 04-0117.,1 CA-CV 04-0117. |
| Citation | 108 P.3d 946,210 Ariz. 167 |
| Parties | Gary D. SMETHERS, M.D., a single man, Plaintiff-Appellant, v. Michael CAMPION, M.D., and Elena Campion, husband and wife; Southwestern Eye Center, Ltd., an Arizona corporation, Defendants-Appellees. |
| Court | Arizona Court of Appeals |
Treon, Aguirre & Newman, P.A. By Arthur G. Newman, Jr., Sharon G. Slifko, Phoenix, Attorneys for Plaintiff-Appellant.
Broening Oberg Woods & Wilson, P.C. By Michael J. Ryan, Cynthia Y. Kirkland, Mesa, Attorneys for Defendants-Appellees.
¶ 1 Gary Smethers, M.D., appeals from the defense verdict and judgment in his medical malpractice action against Michael Campion, M.D., and Southwestern Eye Center, Ltd. ("Southwestern"). Dr. Smethers asserts that the trial court improperly restricted his questioning of a defense expert during the trial. For the reasons discussed, we reverse and remand for a new trial.
¶ 2 Dr. Smethers had been a patient at Southwestern since June 21, 1990. In nine years, his contact lens prescription had never changed and the eleven eye measurements taken during that time were virtually the same.
¶ 3 In September 1999, Dr. Smethers asked Dr. Albert J. Scheller, his eye doctor at Southwestern, about LASIK surgery.1 Dr. Scheller told him it was a good procedure and recommended Dr. Campion, another Southwestern doctor, who had performed numerous LASIK procedures.
¶ 4 On October 1, 1999, Dr. Smethers saw Dr. Campion for a LASIK surgery evaluation. Dr. Smethers arrived wearing his contact lenses, and the medical staff told him to remove them so they could perform refractions and other measurements. After Dr. Campion examined him and discussed the surgery, Dr. Smethers decided to have the LASIK procedure. Surgery was scheduled for November 5, 1999.
¶ 5 Wearing contact lenses affects the shape of the cornea. Removal of the lenses for several days preoperatively allows the patient's corneas to resume their natural shape. Dr. Smethers had therefore been instructed to remove his lenses on Sunday evening (October 31) and leave them out until the surgery on November 5, which he did. However, instead of repeating the measurements upon which the corrective surgery would be based, Dr. Campion chose to perform the surgery based upon his review of the eleven sets of measurements that had been taken of Dr. Smethers' eyes over the preceding nine years, including the measurements taken on October 1.
¶ 6 The surgery resulted in an "over-correction" of Dr. Smethers' corneas. As a result, Dr. Smethers' vision deteriorated after the surgery, and he needed frequent changes to his eyeglass prescription due to fluctuating vision and visual defects causing glare, halos, ghosting, starbursts and other problems. Dr. Smethers also was required to carry multiple pairs of glasses with different prescriptions, as well as a magnifier, to allow him to function in differing light conditions.
¶ 7 Dr. Smethers sought the advice of eye specialist Samuel Masket, M.D. Dr. Masket told him that further corrective surgery was not an option, and referred him to another specialist for custom contact lenses. Eventually, Dr. Smethers was fitted with gas-permeable rigid contact lenses that give him somewhat adequate day vision, although he still has glare and other problems and needs a magnifier to read.
¶ 8 Dr. Smethers filed this medical malpractice case against Dr. Campion and Southwestern, and retained Dr. Masket as his medical expert. Dr. Masket criticized Dr. Campion for relying on the eleven prior measurements and for the laser settings based on such measurements. With regard to the measurements, Dr. Masket testified that, when LASIK is performed on patients who wear contact lenses, the standard of care is to remove the lenses for several days before taking preoperative measurements. He explained that the measurements must be based on the natural shape of the cornea, and because contact lenses alter the shape of the cornea, removal of the lenses for several days to restore the natural shape of the cornea is necessary for accurate measurements. Dr. Masket testified that Dr. Campion therefore breached the standard of care by taking Dr. Smethers' measurements on October 1, 1999, right after Dr. Smethers had removed his lenses, and by failing to re-measure the eyes after Dr. Smethers' lenses had been out several days. Dr. Masket testified that this failure to re-measure was probably the cause of both the over-correction and Dr. Smethers' resulting visual problems.
¶ 9 Defendants retained Dr. Perry Binder as their medical expert. In his pre-trial deposition, Dr. Binder testified that Dr. Campion's decision to rely on the eleven prior sets of measurements instead of re-measuring Dr. Smethers' eyes complied with the standard of care. However, Dr. Binder also stated that, in his own practice, he would have re-measured before proceeding with surgery.
¶ 10 Prior to trial, defendants filed a motion in limine to preclude evidence regarding the experts' personal practices, particularly those of Dr. Binder. That motion was granted.
¶ 11 The case proceeded to a jury trial that resulted in a defense verdict. The court entered judgment in favor of defendants, and Dr. Smethers timely filed this appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003).
¶ 12 In medical malpractice actions, like all tort actions, a plaintiff must allege and prove the existence of a duty owed, a breach of that duty, and damages causally related to such breach. Generally speaking, whether a duty is owed is a question of law for the court. Stanley v. McCarver, 208 Ariz. 219, 221, ¶ 5, 92 P.3d 849, 851 (2004). The elements of breach and causation, and the measure of damages, if any, are generally questions for the trier of fact. Fehribach v. Smith, 200 Ariz. 69, 73, ¶ 16, 22 P.3d 508, 512 (App.2001); Sheppard v. Crow-Barker-Paul No. 1 Ltd. P'ship, 192 Ariz. 539, 549, ¶ 53, 968 P.2d 612, 622 (App.1998).
¶ 13 In this case, the duty owed by Dr. Campion in relation to his patient, Dr. Smethers, was "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." A.R.S. § 12-563(1) (2003).2 In other words, to meet the duty owed, Dr. Campion was expected to conform his professional actions with how a reasonably prudent eye surgeon in Arizona would act in the same or similar circumstances. This yardstick by which a physician's compliance with such a duty is measured is commonly referred to as the "standard of care."
¶ 14 Although the statute in words outlines the duty, it does little to identify how the standard of care is determined. While the standard clearly is not the "highest degree" of care or skill, see Butler v. Rule, 29 Ariz. 405, 417-18, 242 P. 436, 440 (1926), it is at least a minimum level of skill and care practiced by a community of physicians, as measured by the circumstances and facts of a given case. In that regard, the standard of care of necessity is not static, but rather must be flexible and fluid, and dependent upon the nature of the medical situation.
¶ 15 In light of the scientific advances in the diagnosis and treatment of physical conditions and diseases, the standard of care evolves and is subject to change. Further, because a significant component of diagnosis and treatment is the practitioner's exercise of judgment, there are, understandably, different viewpoints as to how a medical condition may be identified, evaluated and treated. Those differing viewpoints can be and are commonly expressed in the medical community in medical schools, post-graduate training programs and professional meetings, and also through textbooks and other medical literature. Over the years, some ideas advanced in texts or medical journals, controversial when posed, have become well-accepted and routinely followed. Other ideas and concepts, enthusiastically embraced at the onset, have fallen from favor and can no longer be considered authoritative on the particular subject.
¶ 16 Accordingly, the parameters of the standard of care applicable in a given case, and whether such standard was complied with, are often vigorously advocated to the trier of fact through the opinion testimony of "expert" medical witnesses. As a foundational element, each such expert must establish that he or she is qualified to offer an opinion on the subject matter involved. Generally, that means that the witness must possess sufficient education, training and experience concerning a subject relevant to the action that will assist the trier of fact in resolving one of the disputed issues in the case. See generally Ariz. R. Evid. 702. As it relates to the standard of care, such proffered expert must generally practice or have sufficient training and experience in the same area of practice as the defendant physician so as to be in a position to opine on what the applicable standard of care is for a given situation, and whether the defendant complied with the same in the care and treatment of the patient.
¶ 17 The advent of specialty residency programs, the use of standard textbooks and reference to specialty-oriented medical literature, the use of national testing and certification for such specialty, and the creation of and membership in specialty professional organizations are intended to create a consensus and to encourage uniformity in the diagnosis and treatment of a disease or condition.3 Accordingly, the statewide standard of care for physicians practicing in a discrete specialty such as corrective eye surgery may reflect a "national" specialty standard of care; in other words, the degree of care, skill and learning exercised by reasonably prudent specialists in such field across the country.4
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