Desert Palm Surgical Group v. Sherry Petta – 1/15/2015
Arizona Court of Appeals Division One holds that: a verdict that shocks the conscience requires a new trial on all issues; truth can be an absolute defense to defamation but not to false light invasion of privacy; and a medical battery claim is supported where the doctor willfully disregards the patient’s limited consent.
Sherry Petta received cosmetic procedures from doctors at Desert Palm. Petta suffered complications and was generally dissatisfied with her results. Corrective procedures failed to ameliorate her concerns. The doctors alleged that Petta aggressively voiced her dissatisfaction to the doctors, staff, and even to other patients in the lobby, sometimes using profanity. They further alleged that Petta went on to create a website against the doctors, made negative postings on various rating websites, and made numerous formal complaints to medical boards. As part of these efforts, Petta allegedly assisted other former patients, employees, and business associates of the doctors.
The doctors filed a suit claiming (1) defamation/libel per se, (2) tortious interference with medical practice, (3) injurious falsehood/business disparagement, and (4) false light invasion of privacy. In a counterclaim, Petta alleged medical battery based on a lack of consent to the scope of changes that the doctors made to her nose during the attempt to improve earlier results. The trial court granted summary judgment on most counts, dismissing the counterclaim of medical battery and leaving only the defamation and false light invasion of privacy claims for trial. At trial, the jury found in favor of Desert Palm and awarded over $12 million in damages.
After addressing a jurisdictional issue, the Court found no error with the trial court’s refusal to grant summary judgment on the claims of defamation and false light invasion of privacy. The usual rule is that a denial of summary judgment may not be appealed after a final judgment from a trial on the merits. The exception is for purely legal issues, which was not the case here.
With respect to the defamation and false light invasion of privacy claims, Petta contended her statements were either truthful or opinion. The Court explained that substantial truth may in some circumstances provide an absolute defense to defamation. However, truth is not necessarily a defense to false light invasion of privacy if the statement creates a false implication about the person. The Court agreed with the superior court that legitimate questions of fact existed as to both the defamation and false light invasion of privacy claims.
With respect to Petta’s challenge to the amount of damages, the Court found that by denying Petta’s motion for new trial or remittitur, the superior court allowed Plaintiffs to obtain an award of damages not supported by adequate evidence, and allowed a verdict to stand that shocked the Court’s conscience and was so extreme as to manifestly indicate passion, prejudice, mistake or a complete disregard of the evidence. The Court also noted that liability was vigorously contested and many of the statements at issue were either true or substantially true, and accordingly remanded for a new trial on liability and damages.
Although the Court vacated the punitive damages award because it determined Petta is entitled to a new trial on liability and damages, it held the superior court did not err by allowing the jury to consider punitive damages.
Finally, the Court of Appeals held that Petta can present her counterclaim of medical battery. Ordinary medical malpractice does not support a battery claim. Medical battery claims may be brought when a doctor willfully disregards the limited or conditional scope of the patient’s consent. The court erred in dismissing the claim based on Petta’s general consent to the nose surgery because there was evidence that the doctor exceeded the limited scope of her consent.
Presiding Judge Winthrop authored the opinion; Judges Gemmill and Johnsen concurred.
*This post was updated on July 8, 2015.