Taylor v. DiRico

• Decision Date: 23 January 1980
• Docket Number: No. 14171,14171
• Citation: 606 P.2d 3,124 Ariz. 513
• Parties: Max TAYLOR, M.D., Appellant, v. Frances Margaret DIRICO, surviving spouse of Mario DiRico, deceased, for herself and as personal representative of Marisa Christina DiRico and Philip Anthony DiRico, surviving minor children of Mario DiRico, deceased, Appellee.
• Court: Arizona Supreme Court

Page 3

606 P.2d 3

124 Ariz. 513

Max TAYLOR, M.D., Appellant, v. Frances Margaret DIRICO, surviving spouse of Mario DiRico, deceased, for herself and as personal representative of Marisa Christina DiRico and Philip Anthony DiRico, surviving minor children of Mario DiRico, deceased, Appellee.

No. 14171.

Supreme Court of Arizona, In Division.

Jan. 23, 1980.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by P. Michael Whipple and John H. Westover, Burch, Cracchiolo, Levie, Guyer & Weyl by Duane A. Olson, Phoenix, for appellant.

Norman S. Herring, Phoenix, for appellee.

HOLOHAN, Vice Chief Justice.

Appellant Max Taylor, M.D., appealed from a judgment entered against him and Roy S. Weinrach, M.D., on a jury verdict in a wrongful death action. We took jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S.

A wrongful death action was brought by plaintiff-appellee Frances Margaret DiRico, for herself as surviving spouse of the decedent, Mario DiRico, and for their two surviving minor children. The plaintiff alleged that the appellant and two other physicians, Doctors Weinrach and John E. Cahill were negligent in their diagnosis and treatment of Mario DiRico, and this negligence resulted in his untimely death.

Mario DiRico visited Dr. Cahill, a general practitioner, on April 15, 1974, for treatment of a lump in his right armpit. After examining the area of complaint, Dr. Cahill referred Mr. DiRico to a surgeon, the appellant.

An examination of the area of complaint was conducted by the appellant, and a biopsy was performed to remove tissue for examination by a pathologist. The appellant placed a drain in the incision and enclosed it in stitches.

The tissue examination resulted in a diagnosis by the pathologist that Mr. DiRico had a malignant lymphoma. The appellant removed the drain from the biopsy site on April 22, and he referred Mr. DiRico to Dr. Weinrach, a specialist dealing with tumors. Further tests were conducted at the request of Dr. Weinrach. As a result of these tests there was concern that the disease might have progressed along the lymph chain to the area below the diaphragm. Mr. DiRico was sent back to the appellant for an exploratory operation in the abdominal area.

On May 20, 1974, the appellant examined Mr. DiRico and found among other things that the site of the biopsy in the armpit was swollen and inflamed. There was also swelling and inflammation in the cervical area. The appellant had Mr. DiRico admitted to the hospital on May 22. Before surgery Mr. DiRico showed a temperature of 102 degrees and certain other conditions consistent with infection. The surgery was performed, and the tissue removed from the abdominal area was examined and found to be negative for cancer.

Mr. DiRico continued to have an elevated temperature after the operation, and the area of the armpit continued to be swollen and inflamed. On June 5 the appellant ordered treatment with antibiotics. The appellant authorized the discharge of Mr. DiRico from the hospital on June 9.

After his discharge from the hospital Mr. DiRico's condition became progressively worse. On June 19 he was readmitted to the hospital. Both the appellant and Dr. Weinrach attended him, but Mr. DiRico died on June 21, 1974. He was 38 years of age at the time of his death.

The parties to the action disagreed as to the cause of death. The appellee's evidence was that cancer was not the direct cause of death. The cause of death was the improperly treated infection. Appellant's evidence was that the cause of death was cancer.

At the close of all evidence at trial, the trial court granted a directed verdict in favor of Dr. Cahill. The case was submitted to the jury as to the remaining defendants, and the jury returned a verdict in favor of the plaintiff and against both the appellant and Dr. Weinrach for $200,000.

The appellant filed a timely appeal.

I

The appellant contends that the trial court erred in failing to inform the jury of the settlement agreement between Dr. Weinrach and the appellee.

After all parties rested, in proceedings in chambers, counsel for plaintiff and counsel for Dr. Weinrach disclosed to the court and appellant's counsel that they had reached an agreement. The terms of the agreement were that Dr. Weinrach would pay $25,000 to appellee, and she would be entitled to retain that sum in the event of a defense verdict or a verdict against Dr. Weinrach alone. In the event of a verdict against appellant either solely or along with Dr. Weinrach, the appellee was to enforce the judgment against appellant only, and she was to repay the $25,000 to Dr. Weinrach.

Counsel for appellant demanded that the jury be informed of the agreement or that Dr. Weinrach be excluded from further participation in the trial. The trial court denied the requests. Appellant argues that the ruling was error. He maintains that the agreement is the type which should be made known to the jury under the rule set forth in Sequoia Manufacturing Co., Inc. v. Halec Construction Co., Inc., 117 Ariz. 11, 570 P.2d 782 (App.1977). Appellant particularly refers to the language of the Court of Appeals from the cited case:

"We believe there are clearly circumstances in which Gallagher agreements should be admitted into evidence or made known to the jury by way of instruction, for limited purposes. The classic situation wherein this would not only be permissible but probably obligatory if requested by the non-agreeing party, is where the agreeing defendant can improve his financial position by insuring a verdict of a certain amount, or over a certain amount against the non-agreeing defendant. The Gallagher case itself presented this situation." 117 Ariz. at 23, 570 P.2d at 794.

The appellee points out that the agreement was made known to the trial court and the nonagreeing counsel as soon as possible after the agreement had been reached. See Mustang Equipment, Inc. v. Welch, 115 Ariz. 206, 564 P.2d 895 (1977). Appellee contends that there was no fraud or collusion involved, and the agreeing parties continued in a bona fide adversary posture for the remainder of the trial.

Counsel for Dr. Weinrach stated to the trial court:

"I have no understanding whatever with Mr. Herring (plaintiff's counsel) that I will attempt to lay off any of the responsibility on Dr. Taylor. It was not my intention ever to do so and I will do my best to keep my argument just as it would have been if this arrangement had not been made." (Reporter's Transcript, Vol. XIII, p. 1910.)

Review of the record confirms that the closing argument made by Dr. Weinrach's counsel was, in fact, consistent with his statements, quoted above. We are satisfied that the agreement had no effect upon the integrity of the trial.

In Sequoia Manufacturing Co., Inc., supra, the Court of Appeals in upholding the trial court's decision not to permit disclosure to the jury, reasoned that the agreeing defendant's basic motivation was to limit its maximum liability to the plaintiff and the court therefore declared:

"(W)e believe a trial court is in a unique position to view the factors surrounding such an agreement and to decide, when requested, whether such an agreement should be admitted. . . . After observing the conduct of all counsel, their demeanor, their witnesses, and the overall atmosphere of the courtroom, the trial judge determined it unnecessary in this case to disclose the agreement to the jury. In an instance such as this, we invest the trial court with considerable discretion. We find no abuse of discretion." 117 Ariz. at 24, 570 P.2d at 795.

In the present case, disclosure of the agreement which was entered into after the close of all evidence would not have been useful for impeachment, or as an aid to the jury to judge any matter of motive or credibility. We therefore hold that on the facts of this case, the trial court was correct in not permitting disclosure of the agreement to the jury.

II

The appellant argues that the trial court committed reversible error in refusing to give the Defendant's Requested Instruction No. 11, which states:

"A physician may not be held liable in the exercise of his medical judgment if he selects a method of therapy which is approved by respectable members of the medical profession. The fact that other members of the medical profession may not recognize such method of treatment as being an approved method is not sufficient to hold the Defendant liable so long as there are respectable practitioners in the profession who do recognize and employ such method of treatment."

In essence, the appellant contends that without such an instruction, the jury could find malpractice by the defendant physician on the basis of another physician's opinion which disagrees with the course of treatment undertaken, even though the defendant was well within the bounds of the actual standard of care imposed upon him.

The instructions given by the trial court told the jury that negligence consisted of doing something forbidden by the recognized standard of care or neglecting to do something which the standard required. The trial court also instructed the jury that merely following a different course of treatment than is followed by some physicians was not sufficient to establish malpractice. The jury was cautioned that the test was whether the defendant departed from the approved standard of treatment by physicians of the defendant's specialty in Arizona.

The issue before the jury was whether the appellant provided medical care and treatment consistent with good practice as required by the applicable standard of practice. That issue was adequately covered by the instructions given. It was not necessary for the trial court to instruct on every refinement suggested by counsel. Harvey v. Kellin, 115 Ariz. 496, 566 P.2d 297 (1977).

III

The appellant also argues that the trial court erred in giving Plaintiff's Requested Jury Instruction No. 14,...