AZAPP Blog

Estate of Pacheco v. Hartford Fire Insurance Co. (9/22/2008): Arizona Court of Appeals Division Two Holds that Surety is Liable for Fiduciary Breach by Principal Resulting from Failure to Repay Funds Misappropriated from Estate Prior to the Inception of the Suretyship. 

A court-appointed guardian and conservator (“Conservator”) misappropriated money from the estate of her aunt (“Aunt”), who was suffering from dementia.  Later, Conservator obtained a $200,000 surety bond from an insurer (" Hartford") to protect the Estate against potential fiduciary violations by Conservator.  Following a sale of Estate property, the trial court ordered Conservator to deposit all sums from the sale into a restricted account, and to provide a full accounting of her expenditures as conservator.  When she failed to comply, the court rescinded her appointment and, after a bench trial, entered a surcharge judgment against Conservator of nearly $199,000, based on Estate assets not accounted for, plus costs and fees.

The trial court then considered cross-motions for summary judgment regarding whether Hartford would be liable for the misappropriations by Conservator that occurred before the issuance of the security bond.  The Court ruled against Hartford, concluding that Conservator, having engaged in fiduciary malfeasance, had a continuing duty to recover misappropriated or mismanaged assets, which duty continued into the period of the suretyship.  The court ordered Hartford to pay the estate the $200,000 bond amount, plus prejudgment interest from the date of the surcharge judgment.  Hartford appealed, and the Estate cross-appealed the trial court's denial of its request for attorney fees. 

The Court of Appeals affirmed the trial court, holding that, because Conservator had a duty to account for and pay over any funds owed to the Estate during the term of the suretyship, Hartford was liable for harm to the Estate caused by Conservator’s fiduciary breach.  Under the facts submitted, the Court rejected Hartford's claim that the bond was void because of material omissions by Aunt's attorney, who failed to notify Hartford of Conservator’s prior misappropriations.  The Court also rejected Hartford's contention that it could not be held liable for an amount more than the penal sum of its security bond, ruling instead in accordance with the general rule in Arizona that a party is entitled as a matter of right to prejudgment interest on a liquidated claim.  Finally, the Court found that the trial court did not abuse its discretion in denying the Estate's request for an award of attorney fees.  

Judge Vásquez authored the opinion; Judges Howard and Brammer concurred.

Chapman v. The Westerner (9/22/2008):  Arizona Court of Appeals Division Two Holds that an Independent Appraiser May Change His Opinion About a Property’s Value After He Has Issued an Initial Appraisal Report.

In 2003, The Westerner Partnership (the “Partnership”) agreed to purchase Chapman’s 12.57% interest in its assets.  After the parties could not come to terms on a buy-out price, they agreed to hire KB Real Estate Apppraisers (“KB”) to determine the value of the Partnership’s principal asset, the Westerner building.  KB initially set the value of the building at $520,000, but after Chapman aired several concerns about KB’s methodology, KB set the value of the building at between $1.2 and $1.4 million.  The Partnership refused to recognize this second value and Chapman filed suit.  The Partnership thereafter moved for partial summary judgment, arguing that the first appraisal bound the trial court as a matter of law.  The trial court agreed with the Partnership, concluding that “parties who agree to have value affixed by an appraisal are not entitled to a second appraisal absent fraud or bad faith.”  This appeal followed.

The Arizona Appeals Court first explained that the primary case relied upon by the trial court, Hirt v. Hervey, 118 Ariz. 543, 578 P.2d 624 (App. 1978), does not stand for the proposition that parties who agree to be bound by an independent valuation are stuck with an appraiser’s first appraisal.  Rather, the case merely held that judicial review of appraisals is limited to review for fraud, corruption, or other prejudicial misconduct.  The Court clarified that when parties agree to be bound by an independent appraiser, and in so doing also implicitly agree to be bound by standard appraisal practices, they are bound to the appraiser’s final appraisal, which may or may not be the first appraisal.  This is because, “as a standard practice, appraisers must and do revise erroneous appraisals.”  Consequently, the Court reversed the trial court’s grant of partial summary judgment to the Partnership and remanded the case for the trial court to determine whether Chapman procured KB’s second appraisal with undue influence or fraud.

  Judge Eckerstrom authored the opinion; Judges Espinoza and Vasquez joined.

Wilhelm v. Brewer (9/25/2008):  Arizona Supreme Court Holds That Initiative Petition Substantially Complies With Statutory and Constitutional Requirements

Connie Wilhelm challenged the petition form circulated by the Homeowners’ Bill of Rights Committee, the proponents of an initiative measure.  She sought an order barring the Secretary of State from placing the measure on the 2008 general election ballot.  Wilhelm claimed that the petition was not legally sufficient because (1) it had no title, (2) its text was not full and correct, and (3) its petition summary was invalid.  The superior court rejected Wilhelm’s claims, she appealed, and the Supreme Court affirmed.

When considering challenges to the form of initiative petitions, Arizona courts follow a rule of “substantial compliance.”  A court must determine, “whether the petition, considered as a whole, fulfills the purpose of the relevant statutory or constitutional requirements, despite a lack of strict or technical compliance” (internal citations omitted).  The Court first addressed Wilhelm’s challenge that the petition contained no title because the measure’s name neither preceded the text, nor was centered to indicate that it was, in fact, the title.  The Court noted that Arizona law merely requires “some title and some text.”  Section 1 of the petition at issue bore the heading “Title” and provided “[t]his Act may be cited as the ‘Homeowners’ Bill of Rights.’”  Thus, the “title” was clearly denominated as such, was contained in its own section, and complied with statutory and constitutional provisions requiring petitions to have a title.

Petition forms must also include text of no more than one hundred words describing “the principal provisions of the proposed measure.”  Here, Wilhelm claimed that summary was fatally defective because it did not refer to one provision of the proposed measure.  After quoting the summary itself, the Court held that the omission of the particular provision “was not fraudulent and did not create confusion or mislead.”  The proponents included the required warning in the petition that the summary had been prepared by initiative supporters and advised readers to review the entire measure.   

Wilhelm also claimed that the petition was not properly capitalized to indicate newly proposed language.  Reproducing again the language from the petition, the Court noted that the purpose of the requirement of capitalizing new language is “to call attention to amended and added language.”  The Court held that any failure of the petition to contain capitalized words was not fatal because (1) the provision with regard to capitalization is less critical to the statute’s purpose when, as here, entirely new provisions – rather than amendment of existing provisions – are proposed, and (2) the context confirmed that “viewed as a whole” the provisions of the initiative envisioned “new laws, regardless of the typography.”  Finally, the Court declined Wilhem’s request that it re-visit its “substantial compliance” review for initiative petitions.

Justice Ryan authored the opinion for a unanimous court.

Appellate Practice Section’s Seventh Annual "First Monday: A Preview of the Supreme Court’s Pending Term"

Join lawyers and judges at a reception to celebrate the start of the United States Supreme Court’s 2008-2009 Term. Sandra Day O’Connor College of Law Professor Andy Hessick will speak about the key cases on the Court’s pending docket. 

Date: October 6, 2008

Time: Reception: 5:00 p.m.-5:30 p.m. (Complimentary hors d’oeuvres & no-host bar) Program: 5:30 p.m.-6:30 p.m. (Professor Hessick’s presentation)

Location: University Club, 39 East Monte Vista, Phoenix (parking available)

Cost: Members of the Appellate Practice Section, Judicial Officers, Staff Attorneys and Law Clerks:  Free.  Non-Section Members: $20.00 ($10 may be applied to Section dues)

(1.0 hour of CLE credit)

Please RSVP by Monday, September 29, 2008 to:

Johnetta Dorsey: 4201 N. 24th Street, Suite 200, Phoenix, AZ 85016

Johnetta.Dorsey@staff.azbar.org

Fax: 602-416-7507

   

 The Arizona Supreme Court issued its minutes and granted review in 3 cases:

1. AZ Minority Coalition et al v AZ Independent et al

2.City of Phoenix et al v Hon. Fields/Perez et al

3.State of AZ v Hon. Hicks/Raphael Durnan

Governor Janet Napolitano has appointed Margaret H. Downie, a Maricopa County Superior Court judge and Peter B. Swann, also a Maricopa County Superior Court judge, to the Arizona Court of Appeals Division One.

 

Dupont v. Reuter (9/11/2008): Arizona Court of Appeals Division One Holds That Lien Holder’s Use of Regular U.S. Mail Rather Than Certified Mail to Serve a Notice of Intent to Foreclose Does Not Deprive a Court of Jurisdiction to Hear a Tax Lien Foreclosure Action. 

Bruce Dupont and Brad Barding held a certificate of purchase of a tax lien on property owned by Francis Reuter.  Dupont sought to foreclose on Reuter’s right to redeem the property.  Therefore, he sent to Reuter, by first-class mail, a notice of intent to foreclose.  Dupont then filed a foreclosure complaint, which he served on Reuter.  Reuter argued that jurisdiction was lacking because Dupont failed to serve the notice of intent to foreclose by certified mail, as required by A.R.S. § 42-18202(A).  The court agreed, and Dupont appealed.     

The Arizona Appeals Court reversed and remanded for further proceedings.  The Court concluded that the failure to send by certified mail, instead of regular mail, the notice of intent to foreclose did not deprive the court of jurisdiction to hear the foreclosure action, particularly given that the property owner did not dispute that she had received notice of the action.  The Court relied primarily on A.R.S. § 42-18101(B), which provides that an “insubstantial failure to comply” with the tax lien statutes “does not affect the validity of” a tax lien foreclosure.  That statute, enacted in 1984, effectively liberalized previous case law holding that “each duty specified in the tax lien sale and redemption statutes is a mandatory obligation required to establish jurisdiction.”               

Judge Johnsen authored the opinion; Judges Barker and Irvine concurred.

Tostado v. City of Lake Havasu  (9/9/2008):  Arizona Court of Appeals Division One Holds That A City Is Not Entitled to Absolute Immunity when No Actual Decision is Made on Legislation.

Tostado’s son, Mark, drowned in the Bridgewater Channel (the “Channel”) at Lake Havasu.  The medical examiner concluded that Mark died because he was overcome by carbon monoxide while swimming in the Channel.  Prior to Mark’s death, the City of Lake Havasu (the “City”) had been repeatedly advised of high CO levels in the Channel and the local press had published the results of an independent study, commissioned by a local doctor, confirming high CO levels in the Channel.  Though the City subsequently ordered further study of the CO levels in the Channel, it took no other steps to warn swimmers or to limit boating traffic (which was presumably the source of CO).

Tostado brought a wrongful death action against the City, and the City moved for summary judgment arguing, among other things, that it was absolutely immune from suit for its legislative decisions not to warn the public further or restrict boating access in the Channel.   In response, Tostado asked the court to take judicial notice of U.S. District Judge Wake’s decision in Heck v. City of Lake Havasu, in which he denied summary judgment on a similar claim.  The superior court refused to take judicial notice of the decision and granted the City’s motion on absolute immunity grounds.

Tostado appealed and the Court of Appeals reversed.  First, discussing potential legislative immunity under ARS §12-820.01, the Court noted that statutes enacted after Mark’s death could not be considered in determining whether the City was entitled to legislative immunity.  The Court further explained that the City’s failure to act prior to Mark’s death could not be considered an actual legislative decision meriting immunity because the City could not “point to any evidence that it made an actual decision regarding whether to enact an ordinance.”  Rather, explained the Court, the City simply took no action at all.  See Galati v. Lake Havasu City, 186 Ariz. 131, 134 (App. 1996).

The Court also addressed the City’s argument that its decisions and actions regarding CO at the Channel were “administrative functions” entitling it to immunity under ARS §12-820.01(A)(2),(B).  Citing again to Galati, the Court explained that because no actual decision-making occurred regarding whether to enact regulations regarding CO at the Channel, the City could claim no immunity from liability on this ground.

Finally, Tostado had argued that there was a triable issue of fact regarding whether the City owed Mark a duty of care.  Though not relied on by the superior court, the Court of Appeals considered this issue consistent with its power to affirm on any ground supported by the record.  Here, relying on the Restatement (2d) of Torts, the Court explained that there was, at least, a triable issue of fact regarding whether the City “possesses” the Channel such that it owed a duty of care to invitees at the Channel.  The Court further held that Mark was an “invitee” as required to make out a claim for negligence.

Judge Weisberg authored the opinion in which Judges Portley and Norris concurred.

Excell Agent Services, L.L.C. v. Arizona Department of Revenue (9/4/2008):  Arizona Court of Appeals Division One Holds That a Company Providing Outsourced Directory Assistance to Telecommunications Companies Is Not Itself Engaged in the Telecommunications Business for Purposes of a Statutory Exemption to the Arizona Transaction Privilege Tax.

Excell Agent Services, L.L.C. (“Excell”) appealed a judgment from the tax court holding that the sale of certain equipment to Excell was not exempt from the Arizona transaction privilege tax (“TPT”).  Pursuant to A.R.S. § 42-5061(B)(3), income is exempt from the TPT when derived from the sale of tangible personal property consisting of enumerated telecommunications equipment that is sold to a business classified under the telecommunications classification.  To be classified under the telecommunications classification, a business must “transmit[ ] signs, signals, writings, images, sounds, messages, data or other information of any nature by wire, radio waves, light waves or other electromagnetic means if the information transmitted originates and terminates” within Arizona.  A.R.S. § 42-5064(E).  Based on this statutory definition, the Court of Appeals held that Excell does not qualify as a telecommunications business.  Excell provides directory assistance information that is transmitted to telephone customers, but it does not actually transmit the information itself in the sense relevant to the statute.  Rather, the companies such as AT&T and Sprint that contract with Excell own the phone lines over which Excell provides directory assistance, and those companies, rather than Excell, are engaged in the telecommunications business.  In so holding, the Court rejected Excell’s implicit broad definition of “transmit” because it would encompass any individual or business that provides information by phone, internet or other telecommunications device.  Instead, the Court held that only businesses engaged in electromagnetically transmitting information would qualify for the telecommunications classification.

Judge Hall authored the opinion; Presiding Judge Kessler and Judge Barker concurred.

In re MH 2007-001236 (8/26/2008):  Arizona Court of Appeals Division One Holds That a Petition for Involuntary Treatment Requires Two Physicians to Submit Affidavits and Give Testimony Concerning the Patient’s Mental Health and Need for Treatment.     

Appellant J.O. was taken into custody for a mental health evaluation.  Two days later a physician at Desert Vista Hospital, Appellee Dr. Cyriac, filed a petition for court-ordered treatment alleging that J.O. was a danger to herself and others, and was persistently or acutely disabled.  Affidavits from Dr. Cyriac and another physician were attached to the petition, as required by A.R.S. § 36-533(B).  Dr. Cyriac’s affidavit, however, explained that he did not perform a comprehensive psychiatric evaluation and could not render a professional opinion about J.O.  At the hearing on the petition Dr. Cyriac supplemented his affidavit with testimony.  He testified that he could try to give a professional opinion about J.O. based on his brief review of her chart.  J.O.’s counsel argued for dismissal of the petition because Dr. Cyriac did not actually evaluate J.O., and his in-court testimony was based on an inadequate review of J.O.’s records.  The court rejected these arguments and ordered treatment for J.O.  J.O. appealed.

The Arizona Appeals Court vacated.  The Court first explained that there was no question that Dr. Cyriac’s petition did not satisfy the requirements of A.R.S. § 36-533(B), because only one of the two affidavits submitted with the petition complied with the statute’s requirements.  Dr. Cyriac’s affidavit was not prepared after conducting an examination in the evaluation of J.O., and did not present a professional opinion.  The Court then explained that Dr. Cyriac’s testimony at the hearing could have cured his defective affidavit, as long as it satisfied all of the statutory requirements for involuntary treatment by clear and convincing evidence. 

Based on its review of the record, the Court found that Dr. Cyriac’s testimony did not cure the deficiency in his affidavit because it did not satisfy the requirements of A.R.S. § 36-539(B).  That statute requires, among other things, that a physician testify: (1) after a “personal evaluation” of the patient; (2) about the physician’s “opinion[] concerning whether the patient is, as a result of mental disorder, a danger” to herself or others; and (3) about “whether the patient requires treatment.”  Dr. Cyriac’s testimony failed to satisfy all of these requirements. 

In addition to holding that Dr. Cyriac’s petition and testimony were legally insufficient, the Court expressed its doubt that the evidence presented by Dr. Cyriac could have satisfied the clear and convincing evidence standard because his opinion was given equivocally, was not given within a reasonable degree of medical certainty.

Presiding Judge Kessler authored the opinion; Judges Hall and Gemmill concurred.

Carbajal v. Ind. Comm’n of Arizona (8/26/2008):  Division One Holds That Care Provided By A Spouse To An Injured Claimant In the Marital Home, Where Such Care Does Not Involve “Medical” Services or “Skilled” Care, Is Not Compensable “Other Treatment” Under Worker’s Compensation Statute

The Claimant, Sabino Carbajal, suffered severe head and spinal injuries in an industrial accident in 1999.  The injuries impaired his cognitive abilities and caused hemiparesis, paralysis affecting only one side of the body.  The carrier found Carbajal’s injuries compensable and accepted his claims for benefits.  Carbajal received many benefits, including loss of earning capacity entitlement, a wheelchair accessible van, special modifications to his home, and attendant care services seven days a week for eight to ten hours a day.  During certain hours, including the night-time hours, no attendant is present and Carbajal’s Wife provides care for Carbajal. 

In 2006, Carbajal sought retroactive compensation for the care rendered by Wife during those hours no attendant care was provided.  The Administrative Law Judge (ALJ) held two days of hearings.  Testimony at the hearing demonstrated that the care provided by Wife includes feeding Carbajal, administering his medication, cleaning him when he has urinated or defecated on himself, checking his oxygen levels at night, and taking him to the bathroom at night.  Carbajal’s treating physician, Dr. Porter, and the registered nurse who developed Carbajal’s care plan along with Dr. Porter, testified at the hearing.  Dr. Porter testified that although Carbajal cannot live alone, he does not require “skilled [care at all times],” and that activities such as helping him to the bathroom or feeding him did not require a skilled caregiver, but “just an attendant of sorts.”  The ALJ found that Wife was not entitled to compensation for the care she provided.  He reasoned that the care was not of the type rendered by a trained attendant, but rather akin to the “day-to-day duties assumed by a spouse in accord with the marriage commitment.” 

Carbajal sought special action relief and the Court of Appeals took jurisdiction.  In a 2-1 decision, Division One affirmed the ALJ’s finding.  The statute at issue provides that “every injured employee shall receive medical, surgical and hospital benefits or other treatment, nursing, medicine, surgical supplies, crutches or other apparatus, . . . reasonably required . . .  during the period of disability.”  A.R.S. § 23-1062(A).  Interpreting the phrase “other treatment,” the majority first noted that many jurisdictions have abandoned the view that services provided by a spouse are simply those he or she is “bound to do” as a member of family and therefore not compensable.  Courts have considered a number of factors in determining whether spousal care is compensable, including whether the services are those typically performed by licensed health practitioners, whether the services were performed under medical direction, and whether the claimant needs continuous care.   The majority then went on to apply the rule of ejusdem generis, finding that the general phrase “other treatment” follows “a list of specifics” and therefore should be interpreted to include only items of the same type as those listed – namely, services “of the ‘medical’ type and not those which would normally be rendered by a spouse during marriage.”  Because Wife’s services, in the majority’s view, were not “medical treatment” or services typically provided by a “skilled” attendant, those service were not compensable as “other treatment.”

In a detailed dissent, Judge Kessler reviewed the record below and disagreed with the majority’s characterization of certain facts.  He found, among other differences, that Wife had received training (for which the carrier paid) on how to care for Carbajal, and that she quit her full-time job in order to care for him.  Judge Kessler noted that the term “other treatment” is plain and unambiguous, and thus the majority erred in resorting to principles of statutory construction.  Noting that the majority of modern courts find the kind of care provided by Wife compensable, that Wife’s care was indeed “trained care,” and that the majority’s scheme is “contrary to the public policy underlying the worker’s compensation scheme,” Judge Kessler would have found Wife’s services compensable as “other treatment.”

Judge Orozco authored the opinion, with Judge Portley concurring.  Judge Kessler, Presiding Judge, dissented.

Governor to Interview Court of Appeal Nominees Later This Month:  The Governor’s office has scheduled interviews with the nominees for the two Court of Appeals vacancies.   All four nominees will be interviewed over the course of two days:  September 18 and 19.   As previously announced, the nominees are 

White v. State (8/26/2008): Arizona Court of Appeals Division One Holds that Firefighter Rule Precludes Negligence Action by Survivors of Slain Police Officers Alleging that Defendant Mental Health Providers Failed to Properly Diagnose and Treat Man Who Later Shot and Killed Officers

Family members of Doug Tatar, believing that he was a danger to himself and others, requested that he be evaluated by mental health care providers.  The providers evaluated Tatar but declined to place him into treatment.  A few months later, Tatar was involved in a confrontation with some neighbors.  Tatar shot one of the neighbors and retreated to his apartment.  Police officers who responded to the scene kicked in Tatar’s apartment door.  Tatar fatally shot two officers, then shot and killed himself.

Beneficiaries of the slain police officers sued the health care providers and others for alleged negligence in failing to treat Tatar.  The trial court granted Defendants’ motion for summary judgment under the “firefighter’s rule,” which bars tort actions by public safety employees for injuries sustained as a result of the negligence that creates the very need for their employment.  Plaintiffs appealed, arguing that the “independent negligence exception” to the firefighter’s rule should apply.

The Arizona Court of Appeals affirmed.  The Court agreed, in accordance with other jurisdictions, that the firefighter’s rule covers actions for injuries to on-duty police officers.  The court next held that the independent negligence exception was factually inapplicable.  The pertinent inquiry for the exception is whether the negligently created risk which resulted in plaintiff’s injury was the reason for his being at the scene in his professional capacity.  The actor’s negligence is not independent if the actor’s conduct caused or contributed to the emergency that in turn caused the injury or death of the police officer.  Because Plaintiffs alleged in essence that the Defendants’ negligence both caused or contributed to the emergency response situation and caused Tatar to shoot the officers, the exception did not apply.

Judge Brown wrote the opinion for the panel; Judges Timmer and Norris concurred.

Wyttenbach v. Wyttenbach(8/26/2008):Arizona Court of Appeals Division One Holds (1) A.R.S. § 14-3108(4) of the Probate Code Does Not Preclude a Personal Representative from Bringing an Action for Financial Exploitation of a Vulnerable Adult Pursuant to A.R.S. § 46-456 on Behalf of the Estate, Even Though the Personal Representative Was Appointed More Than Two Years After the Decedent’s Death, But (2) Personal Representative Lacked Standing Under A.R.S. § 46-456 to Bring a Claim in an Individual, Rather Than a Representative, Capacity.    

Emmett and Esther Wyttenbach created a revocable living trust naming their son, Barry, as the sole beneficiary.  After Esther’s death, Emmett married Nona.  After Emmet died, Barry was eventually appointed the personal representative of the estate almost two and one-half years later.  Barry then filed a complaint against Nona alleging financial exploitation of a vulnerable adult under A.R.S. § 46-456 of the Adult Protective Services Act (APSA).  Barry alleged that Nona, as a de facto conservator and person in a confidential relationship with Emmett, a vulnerable adult, misappropriated funds designated to the trust.  Nona moved for summary judgment.  Nona relied on the decision of In re Estate of Winn, 212 Ariz. 117, 121, 128 P.3d 234, 239 (App. 2006) (Winn I), rev’d 214 Ariz. 149, 150 P.3d 236 (2007) (Winn II), which held that a late-appointed personal representative was precluded from pursuing APSA claims. The probate court agreed and dismissed Barry’s complaint with prejudice.  The court also denied Barry’s earlier request that he be added to the complaint as an individual plaintiff in addition to his standing as personal representative.  Barry appealed.     

The Arizona Appeals Court reversed the order granting summary judgment to Nona, affirmed the denial of Barry’s request to amend the complaint, and remanded for further proceedings.  The trial court’s grant of summary judgment relied on Winn I, but that holding was subsequently reversed by the Supreme Court of Arizona in Winn II, thereby allowing APSA claims by late-appointed representatives (such as Barry) to proceed.  Because the probate court had not decided whether Barry’s claim, in his representative capacity, was timely, however, the Court remanded so that the probate court could make that determination.  The Court then affirmed the probate court’s refusal to allow Barry to amend the complaint to add a claim in his individual capacity, holding that the APSA does not provide a cause of action for such claims.       

Judge Orozco authored the opinion; Judges Barker and Timmer concurred. 

Sanchez v. Tucson Orthopaedic Institute, P.C. (08/27/2008): Arizona Court of Appeals Division Two Holds That in a Medical Malpractice Case Involving Res Ipsa Loquitor and Multiple Defendants, the Plaintiff Must Identify Which Defendant Controlled the Injury-Causing Instrumentality.

 

In April 2004, Lorenzo Sanchez underwent knee surgery performed by orthopaedic surgeon, Dr. James Levi.  Dr. Daniel Hughes administered anesthesia during the operation. Following the surgery, Sanchez had severe and permanent nerve damage in his leg. Plaintiff filed suit for medical malpractice against Levi, Tucson Orthopaedic Institute, Hughes and Old Pueblo Anesthesiology, relying on the doctrine of res ipsa loquitor.  After Sanchez provided an affidavit of an orthopaedic surgeon but not an anesthesiologist, Old Pueblo Anesthesiology moved to dismiss the complaint on the grounds that under A.R.S. § 12-2603(B), the orthopaedic surgeon was not qualified to provide expert testimony against Dr. Hughes.  The trial court granted the motion.   Tucson Orthopaedic also moved for summary judgment on the grounds that Sanchez failed to establish their case of medical malpractice because res ipsa loquitor was inapplicable and the exert affidavit filed by Sanchez did not meet the requirements of A.R.S. § 12-2603(B).  The trial court granted this motion as well, finding that Sanchez had not proven how Levi’s conduct fell below the standard of care or how it caused Sanchez’s injuries.  Sanchez appealed both decisions separately.[1]  On appeal, Sanchez argued that the trial court erred by finding that A.R.S. § 12-2603 abolishes the doctrine of res ipsa loquitor. 

The Arizona Appeal Court  affirmed the trial court’s ruling, reasoning that because Sanchez did not establish the elements of res ipsa loquitor, it need not address whether § 12-2603 operates to abolish the doctrine in medical malpractices cases. The Court ruled that because Sanchez alleged that the administration of anesthesiology alone could have caused the injury and did not offer any evidence to show that it was more probable than not that the orthopaedic surgeon had simultaneous control of the injury-causing instrumentality, Sanchez failed to show that Levi had exclusive control of the instrumentality that caused his injury.  In a res ipsa loquitor case, the plaintiff is not required to exclude all other possible causes of the injury, but must show that the defendant’s negligence was the most probable cause.  The Court explained that this case differs from one involving multiple defendants where it is clear that both were in control of the injury-causing instrument at the time of negligence – in this circumstance, an inference can be made that one or both had caused the plaintiff’s harm.  Because Sanchez could not identify the instrumentality that caused the injury, he could not determine which of the two doctors acted negligently.    

        

Judge Eckerstrom authored the opinion, Judges Espinosa and Vásquez concurred.

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[1] The appeal regarding the claims against Old Pueblo Anesthesiology was addressed in a prior opinion by the Arizona Appeals Court, Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 183 P.3d 1285 (App. 2008).