Tessitore v. McGilvra
| Decision Date | 15 October 1969 |
| Docket Number | No. 9655,9655 |
| Citation | 459 P.2d 716,105 Ariz. 91 |
| Parties | Steve TESSITORE, Appellant, v. R. I. McGILVRA, Seymour B. Silverman, George Scharf, and Maurice Rosenthal, dba Diagnostic Laboratory and Diagnostic Laboratory, Appellees. |
| Court | Arizona Supreme Court |
Finn, Meadow & Thrasher, by R. Y. Thrasher, Phoenix, for appellant.
Richard A. Black, Phoenix, for appellee McGilvra.
Jack M. Anderson, Phoenix, for appellees Silverman, Scharf, and Rosenthal, dba Diagnostic Laboratory and Diagnostic Laboratory.
This is an appeal from a summary judgment in favor of defendants below. The action is a medical malpractice action brought by Tessitore against a general practitioner, R. I. McGilvra, and three doctors, S. B. Silverman, G. Scharf, and M. Rosenthal, specializing in the practice of pathology under the name Diagnostic Laboratory. The action was brought pursuant to §§ 12--611 and 12--612, for alleged negligence of defendants as cause of the wrongful death of plaintiff's wife, Margaret Tessitore.
All the parties filed interrogatories, depositions and affidavits. The defendant McGilvra individually and defendants Silverman, Scharf and Rosenthal jointly filed motions for summary judgment. Defendant McGilvra's motion was granted and written judgment, stating there was no just reason for delay, was entered thereon on November 15, 1966. On January 5, 1967, the trial judge by minute entry granted the motion for summary judgment in favor of Silverman, Scharf and Rosenthal, dba Diagnostic Laboratory. However, no formal written judgment was entered as required by Rule 58(a) Rules of Civil Procedure, 16 A.R.S. No appeal lies therefore as to defendants Silverman, Scharf, and Rosenthal. State v. Birmingham, 96 Ariz. 109, 392 P.2d 775 (1964). We thus consider only the appeal from the judgment in favor of defendant McGilvra.
On a motion for summary judgment it is the duty of the trial judge to determine, as a matter of law, whether there is a genuine issue as to any material fact. Rule 56(c) Rules of Civil Procedure, 16 A.R.S. If such an issue is present, summary judgment may not be granted.
On review of the granting of a motion for summary judgment, this Court must view the facts and inferences arising therefrom in the light most favorable to the party against whom the motion was granted. Viewed in this light, summry judgment should be denied if there is any doubt as to whether there are issues of fact to be litigated under any theory of liability advanced. Elerick v. Rocklin, 102 Ariz. 78, 425 P.2d 103 (1967).
The affidavits, interrogatories and depositions upon which summary judgment was granted show the following: In late December, 1960, the decedent, Mrs. Tessitore, went to defendant McGilvra, a medical doctor licensed to practice in Arizona, for the purpose of having a mole removed from her neck. Dr. McGilvra excised the mole and then forwarded it to the defendant laboratory for a pathology report. Defendant Silverman examined the tissue specimen and reported to Dr. McGilvra the following:
'MICROSCOPIC: The specimen is covered by a thin stratified squamous epithelium showing a few foci of junctional activity. The stroma contains closely packed nests of nevus cells, predominently nonpigmented, the cells occasionally forming giant elements. A very occasional mitotic figure is seen. There is no definite evidence of malignancy.
'Portion of skin with partially pigmented compound (junction and dermal) nevus. There is no definite evidence of malignancy.
/s/ S. B. Silverman'
(Emphasis supplied.)
Medical experts testified that 'mitotic figures' were an indication of malignancy. At least one doctor stated that a pathology reporting 'no definite evidence of malignancy' was 'ambiguous' and would lead him to question whether or not there was any Indefinite evidence of malignancy.
After receiving this report, Dr. McGilvra did nothing more except to caution Mrs. Tessitore to see him or another doctor in the event that there was further activity in the area of the mole. There was testimony that such a cautionary statement is not normal practice where malignancy is completely ruled out.
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Sagmiller v. Carlsen, 8905
...than not the result of negligence. * * * ' Siverson v. Weber, Supra, 22 Cal.Rptr. 337 at 339, 372 P.2d 97 at 99. In Tessitore v. McGilvra, 105 Ariz. 91, 459 P.2d 716 (1969), rehearing den. 1969, the Arizona Supreme Court had before it an appeal from a summary judgment in favor of the defend......
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...the inferences arising from these in the light most favorable to the party against whom the motion was granted. Tessitore v. McGilvra, 105 Ariz. 91, 92, 459 P.2d 716, 717 (1969), supplemented on rehearing, 105 Ariz. 198, 461 P.2d 675 (1970). As the plaintiffs cannot rest on the mere allegat......
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