Barrett v. Samaritan Health Services, Inc.

Majority - Haire, Judge

Yes, the trial court did not err in determining that Dr. Mark Kishel, a pediatrician, was competent to testify concerning the standard of care applicable to Dr. Gonzalez, a surgical resident. A.R.S. § 12-563 requires proof that a healthcare provider failed to exercise the care expected of a reasonably prudent provider 'in the profession or class to which he belongs.' However, an expert does not need to be of the exact same specialty as the defendant if they are familiar with the standard of care through their 'education, experience, observation or association with that specialty,' or if the standard of care for the defendant's specialty is the same as one with which the expert is familiar. Dr. Kishel testified he assisted in supervising and instructing interns and residents on similar conditions, was familiar with the standard of care in emergency room situations for such infants, and stated the infant's condition was common for pediatricians, family physicians, and emergency room physicians. The court concluded that Dr. Kishel's experience demonstrated his familiarity with the applicable standard of care. No, the trial court did not improperly comment on the evidence nor did it err in instructing the jury concerning the Medical Liability Review Panel's decision against Dr. Gonzalez. During cross-examination of the infant's grandmother, the judge clarified a thermometer exhibit by stating it looked unshaken and reading about 108 degrees. The court found this was merely an attempt to clarify an exhibit and not an expression of opinion on its significance, which would violate Article 6, § 27 of the Arizona Constitution. Regarding the jury instruction on the Medical Liability Review Panel's conclusion, A.R.S. § 12-567(K) permits the panel's conclusions to be admitted into evidence and requires the jury to be instructed that the conclusion is not binding. Since the panel's finding against Dr. Gonzalez was uncontroverted and frequently referred to by counsel, the instruction merely informed the jury of an uncontroverted fact and properly advised them of its non-binding nature, which was a necessary predicate to the statutory admonition. This did not constitute an undue emphasis or comment on the evidence. No, the trial court did not err in advising the jury of the Medical Liability Review Panel's decision against Dr. Gonzalez, even though he was not a named defendant. A.R.S. § 12-567(F) states the panel determines findings against each 'defendant,' but the court found nothing in the statute to preclude the panel from evaluating the conduct of a non-defendant physician when the named defendants are alleged to be vicariously liable for that physician's negligence. The panel was obligated to render a finding on the claim alleging Dr. Gonzalez's negligence, as the plaintiff had made a claim based on his conduct. Although the court recognized the panel's formal order was erroneous in calling Dr. Gonzalez a 'defendant,' it concluded this was not prejudicial to the actual defendants and did not affect the validity of the finding on Dr. Gonzalez's conduct. No, the trial court did not err in refusing to direct a verdict for Samaritan Health Services. The plaintiff presented sufficient evidence to support a finding of vicarious liability against Samaritan based on the principles of ostensible agency established in Beeck v. Tucson General Hospital. Evidence showed Samaritan provided the emergency room facilities, equipment, and support personnel; promulgated rules for the physicians; and the patient did not choose her physician but was treated by one associated with Maryvale in Samaritan's ER. These facts align with the conditions for establishing ostensible agency. No, the trial court did not err in refusing to direct a verdict for Maryvale Emergency Physicians, Ltd. The principles from Donn v. Kunz and Barker v. General Petroleum Corp. (an agent not liable for subagent unless fraud/gross negligence) do not apply here because Dr. Gonzalez was a direct employee of Maryvale Emergency Physicians, not a sub-employee or sub-agent of Samaritan. Therefore, ordinary principles of respondeat superior apply, holding Maryvale vicariously liable for the negligent conduct of its employee, Dr. Gonzalez. To rule otherwise would defeat established principles of respondeat superior and vicarious liability. The court also noted that Samaritan was entitled to indemnification from Maryvale, meaning Maryvale would ultimately be the liable party.