Thompson v. Sun City Community Hosp., Inc.

Citation141 Ariz. 597,688 P.2d 605
Decision Date12 June 1984
Docket NumberNo. 16634-PR,16634-PR
PartiesAda Carol THOMPSON, on behalf of herself and as next friend of Michael Jessee, a minor child, Plaintiffs-Appellants, v. SUN CITY COMMUNITY HOSPITAL, INCORPORATED, an Arizona corporation, d/b/a Walter O. Boswell Memorial Hospital; Jon R. Hillegas, M.D.; Steven J. Lipsky, M.D.; Emergency Room Physicians, Inc., Defendants-Appellees.
CourtSupreme Court of Arizona
Robert Stephan, Jr., P.C. by Robert Stephan, Jr., Phoenix, for plaintiffs-appellants

Weyl, Guyer, MacBan & Olson by Kenneth C. Weyl, Thomas G. Bakker, Phoenix, for defendant-appellee Boswell Memorial Hospital.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Harding B. Cure, Larry L. Smith, Phoenix, for defendants-appellees Steven J. Lipsky, M.D. and Emergency Room Physicians, Inc.

Snell & Wilmer by John J. Bouma, Robert J. Gibson, Phoenix, for defendant-appellee Jon R. Hillegas, M.D.

FELDMAN, Justice.

Ada Carol Thompson (plaintiff) petitioned for review of the decision of the court of appeals. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Ariz.R.Civ.App.P. 23, and granted review to clarify the law in Arizona regarding (1) the duty of a general hospital to provide emergency care and (2) the relationship between causation and the "loss of a chance" in the law of torts. A detailed version of the facts is set forth in Thompson v. Sun City Community Hospital, Inc., 142 Ariz. 1, 688 P.2d 647 (App.1983). The following brief summary will be supplemented as necessary for a determination of the legal issues involved.

Michael Jessee, plaintiff's son, was injured on the evening of September 4, 1976. Jessee was 13 years old at the time of this accident. He was rushed by ambulance from the place of the accident (Wittman, Arizona) to the Boswell Memorial Hospital operated by Sun City Community Hospital, Inc. (Boswell) in Sun City. Among Jessee's injuries was a transected or partially transected femoral artery. The injury was high in the left thigh and interrupted the flow of blood to the distal portion of the leg. Upon arrival at the emergency room At some time after 9:30 p.m. Jessee's condition "stabilized" and the decision was made to transfer him to County Hospital. There is no clear indication in the record of who ordered the transfer. Dr. Lipsky determined that Jessee was "medically transferable" but stated that "Michael Jessee was transferred for economic reasons after we found him to be medically transferable." Dr. Lipsky had no authority to admit patients to Boswell. Dr. Sabanas, who did have such authority and who knew that Jessee needed vascular surgery, claimed that Jessee was transferable from an orthopedic standpoint. Dr. Hillegas told Dr. Lipsky that Jessee could be transferred when "stabilized." A witness for the plaintiff testified that "The doctor at Boswell [apparently Dr. Lipsky] said [to Ada Thompson], 'I have the shitty detail of telling you that Mike will be transferred to County....' " A Boswell administrator testified that emergency "charity" patients are transferred from Boswell to County whenever a physician, in his professional judgment, determines that "a transfer could occur."

at 8:22 p.m., Jessee was examined and initially treated by Dr. Steven Lipsky, the emergency room physician. Fluids were administered and blood was ordered. The leg injury prompted Dr. Lipsky to summon Dr. Alivina Sabanas, an orthopedic surgeon. She examined Jessee's leg and determined that he needed surgery. Dr. Jon Hillegas, a vascular surgeon, was consulted by phone.

Thus, at 10:13 Jessee was discharged from the Boswell emergency room, placed in an ambulance, and taken to County. The doctors who attended to him at County began administering fluids and ordered blood. They testified that Jessee's condition worsened but that he was eventually "stabilized" and taken to surgery at about 1:00 a.m. Jessee underwent abdominal surgery and, immediately thereafter, surgery to repair his torn femoral artery. He survived but has residual impairment of his left leg. His mother, as guardian ad litem, brought a malpractice action against Boswell and the physicians.

The trial, hard fought and sometimes acrimonious, lasted three weeks. The trial record reveals a confusion of the issues of duty of care and causation. In any case such as this there are two types of causation questions. The first, relating to the question of breach of duty, pertains to the cause for the transfer to another hospital. Was the patient transferred for medical or other reasons? The second question relates to the cause of injury and is concerned with whether the transfer, with its attendant movement and delay, caused a new or additional injury or aggravated any injury which already existed. The first question was answered by defense counsel in chambers, prior to any testimony being taken in the case:

We admit and stipulate that the plaintiff in this case was transferred from Boswell to County Hospital for financial reasons. There is no question about it.

This stipulation was prompted by a record which clearly indicates that the transfer was made because the type of insurance available for the patient did not satisfy the hospital's financial requirements for admission.

Thus, as soon as he became "medically transferable," Jessee was transferred because he lacked the necessary financial standing and not because surgery at County Hospital could be performed more quickly or by a more skilled surgeon. Nevertheless, there was some testimony at trial that other factors involved in "medical transferability" might have had some influence on the decision to transfer--e.g. the claim that County was better prepared to take a patient immediately into emergency surgery. The court gave the following jury instructions

Now, Defendant Boswell Hospital is a private hospital and as such may establish its own eligibility requirements regarding ability to pay. It does have a duty to provide immediate and necessary emergency care to all persons regardless of ability to pay. The hospital may properly determine a patient's eligibility according A patient is medically transferable when in the judgment of the staff or emergency physician the patient may be transferred without subjecting the patient to an unreasonable risk of harm to his life or health.

to its own rules before admitting a patient as an in-patient for further definitive treatment, and may transfer a patient to another appropriate hospital if the patient is medically transferable.

Plaintiff claims that under the facts of the case at bench, these instructions misstate the law to be applied in Arizona. Therefore, we address the following issues:

(1) Did the instruction set forth the proper standard of care for emergency services?

(2) If not, did the trial court err in refusing to affirmatively instruct the jury that the defendant hospital had breached its duty of care? Put differently: Should the trial court have ruled, as a matter of law, that the transfer was a breach of duty which the hospital owed its patient?

(3) Did the trial court err in failing to instruct the jury properly on the issue of causation?

The Hospital

In this state, the duty which a hospital owes a patient in need of emergency care is determined by the statutes and regulations interpreted by this court in Guerrero v. Copper Queen Hospital, 112 Ariz. 104, 537 P.2d 1329 (1975). Construing the statutory and regulatory scheme governing health care and the licensing of hospitals as of 1972, we held that it was the "public policy of this state" that a general "hospital may not deny emergency care to any patient without cause." Id. at 106, 537 P.2d at 1331.

In Guerrero, we referred primarily to former A.R.S. § 36-405(A) in construing the statutes governing the licensing of hospitals. Id. We then referred to specific regulations promulgated under the authority of that statute. Id. at 106 n. 1, n. 2, 537 P.2d at 1331 n. 1, n. 2. Subsequently, as a part of a general rewriting of title 36 in 1973, the Director of Health Services was required to adopt regulations for the licensure of health care facilities. A.R.S. § 36-405. 1

As guidelines for minimum requirements, the director was mandated to use the standards of the Joint Commission for Accreditation of Hospitals (JCAH). A.R.S. § 36-405(A). Several of the JCAH requirements are set out at length in the opinion of the court of appeals (142 Ariz. at 6-7, 688 P.2d at 652-653). The emergency services section of the JCAH states that:

no patient should arbitrarily be transferred if the hospital where he was initially seen has means for adequate care of his problem.

JCAH, Accreditation Manual for Hospitals 69 (1976). The "Patient's Rights" section of the JCAH manual makes it clear that the financial resources of a patient are among the "arbitrary" considerations within no person should be denied impartial access to treatment or accomodations that are available and medically indicated, on the basis of such considerations as ... the nature of the source of payment for his care.

the contemplation of the above language:

Id. at 23 (emphasis supplied).

Principles governing the functioning of hospitals were not left in the abstract. Specific regulations were adopted and in 1976, A.C.R.R. R9-10-248, concerning "emergency departments," provided that "general hospitals shall provide facilities for emergency care." In addition, such hospitals were required "to have on call one or more physicians licensed to practice medicine and surgery in Arizona or resident physician or intern physician." 2 Our holding in Guerrero is reinforced by A.R.S. § 41-1837(A). This statute is of particular relevance in understanding the entire legislative scheme bearing on the issue of emergency care. It reads as follows:

A. When an indigent emergency medical patient is received by an emergency receiving...

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