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Medical Negligence—Battery/Informed Consent/Negligent Supervision/Breach of Contract

Rice v. Brakel, 669 Ariz. Adv. Rep. 15 (App. Div. II, September 12, 2013) (J. Howard)

ABSENCE OF EVIDENCE OF BREACH OF STANDARD OF CARE AND CAUSATION OR THAT SURGERY WAS OTHER THAN WHAT WAS CONSENTED TO PATIENT HAS NO BATTERY, NEGLIGENCE OR BREACH OF CONTRACT CLAIM AND HOSTILE ACTIONS OF PARTNER NOT IMPUTED TO EMPLOYER AND OTHER PARTNERS

Plaintiff had spinal surgery for pain in his right leg and thereafter preexisting pain in his left leg that was exacerbated. On subsequent examination a physician attributed the left leg pain to be the possible consequence of the surgery. Later plaintiff learned the surgeon performing the spinal surgery had been found to have an illicit prescription drug dependency, had stolen medications from patients and was disciplined by BOMEX for this. Plaintiff sued for battery, negligence and breach of contract. The defendants' motions for summary judgment were granted by the trial court and the Arizona Court of Appeals affirmed.

Plaintiff's standard of care expert testified that, putting the drug dependency issue aside, the defendant surgeon did not breach the standard of care. Plaintiff produced no evidence of a causal link between the drug use and the exacerbated left leg pain. Plaintiff argued that the surgeon's failure to disclose the drug dependency constituted a battery which voided plaintiffs' consent to the surgery as it precluded his right to revoke the consent and insist on another surgeon. There, however, was no evidence that had he known of the drug use he would have in fact insisted on another surgeon. Further, he claimed the defendant medical center the surgeon worked for had imputed knowledge of the drug use through the surgeon's own knowledge since he was a partner.

The court of appeals acknowledged that a fraud or misrepresentation in obtaining consent from a patient is actionable but noted here that there was no evidence that there was any misrepresentation concerning the procedure to be performed or its risks or that the drug use in fact harmed plaintiff in any way.

As to the negligent supervision claim, in addition to the absence of proof of a breach of the standard of care or proximate causation the knowledge of a partner regarding hostile actions is not imputed to the employer as a matter of law.

Finally the absence of a breach of the standard of care or proof the failure to disclose the drug use and the performance of the surgery actually harmed plaintiff defeated his breach of contract bad faith claim.

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