Rice v. Brakel, M.D., Center for Neurosciences

                                                                      FILED BY CLERK
                                                                         SEP 12 2013
                            IN THE COURT OF APPEALS                       COURT OF APPEALS
                                STATE OF ARIZONA                            DIVISION TWO

                                  DIVISION TWO


JAY RICE and BETTY RICE, a married )                  2 CA-CV 2012-0118
couple,                                        )      DEPARTMENT A
                                               )
                        Plaintiffs/Appellants, )      OPINION
                                               )
                     v.                        )
                                               )
ARLO B. BRAKEL, M.D. and JANE DOE )
BRAKEL, a married couple; CENTER FOR )
NEUROSCIENCES, an Arizona Business )
Entity and Licensed Healthcare Provider,       )
                                               )
                      Defendants/Appellees. )
                                               )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. C20107372

                           Honorable Jeffrey T. Bergin, Judge

                                      AFFIRMED

Laurence M. Berlin                                                               Tucson
                                                       Attorney for Plaintiffs/Appellants

Smith Law Group
 By Christopher J. Smith, E. Hardy Smith,
 and Kathleen L. Leary                                                          Tucson
                                                     Attorneys for Defendants/Appellees
                                               Arlo B. Brakel, M.D. and Jane Doe Brakel
Slutes, Sakrison & Rogers, P.C.
 By Tom Slutes, Kathleen M. Rogers,
 and Diana L. Kanon-Ustariz                                                       Tucson
                                                         Attorneys for Defendant/Appellee
                                                                 Center for Neurosciences


H O W A R D, Chief Judge.


¶1            Appellants Jay and Betty Rice appeal from the trial court’s grant of

summary judgment in favor of Arlo Brakel and the Center for Neurosciences. On appeal,

they argue that the court erred in dismissing their claim for medical battery and that

genuine disputes of material fact exist with respect to their negligent supervision, medical

malpractice, and contract claims. Because we find no error, we affirm.

                          Factual and Procedural Background

¶2            “We view the facts and the inferences to be drawn from those facts in the

light most favorable to the party against whom [summary] judgment was entered.”

Mousa v. Saba, 222 Ariz. 581, ¶ 15, 218 P.3d 1038, 1042 (App. 2009). On July 30, 2007,

Jay Rice (“Rice”) underwent spinal surgery on his S1 and L5 nerve roots in an attempt to

relieve pain in his right leg. Rice also was experiencing pain in his left leg before the

surgery. Arlo Brakel (“Brakel”), a neurosurgeon, performed the surgery. The procedure

successfully relieved pain in his right leg, but Rice experienced increasing pain in his left

leg after the surgery.

¶3            Other doctors in Brakel’s practice group, the Center for Neurosciences

(“Center”), provided follow-up care.       Initially the follow-up exams indicated Rice

probably was experiencing some nerve irritation as a result of the surgery. However, an


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MRI from 2010 indicated that Rice had scar tissue surrounding one nerve root, and an

exam in March of that year showed fibrillation and insertion potentials consistent with L5

or S1 radiculopathy on the left side. After an exam in October 2011, one of Rice’s

doctors concluded there was “[p]robable operative injury to S1 nerve root and

postoperative scar affecting L5 nerve root.”

¶4           In July 2010, Rice read a newspaper article about how to use the Board of

Medical Examiners’ website to check the disciplinary history of a doctor licensed in the

state. He decided to use the site to look into Brakel’s history. Upon doing so, he

discovered that Brakel had a dependency on unprescribed prescription drugs including

morphine, Dilaudid, and Percocet around the time of Rice’s July 2007 surgery, and that

sometime after the surgery Brakel had been reprimanded by the board and placed on

probation for five years. Brakel obtained some of these drugs by stealing them from his

patients.

¶5           Rice sued Brakel and the Center for battery, negligence, and breach of

contract in September 2010. Rice moved for partial summary judgment on the issues of

battery and negligent supervision.    Claiming Rice had failed to adduce evidence to

establish a prima facie case for any of the claims against him, Brakel moved for summary

judgment, and the Center moved for partial summary judgment on the issue of negligent

supervision. The trial court denied Rice’s motion, granted Brakel and the Center’s

motions, and awarded the successful parties their costs. Rice moved for a new trial,

which the court denied. Rice appeals. We have jurisdiction pursuant to A.R.S. §§ 12-

120.21(A)(1) and 12-2101(A)(1).


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                                        Discussion

¶6            On appeal from summary judgment, we determine de novo whether the trial

court correctly applied the law and whether there are any genuine disputes as to any

material fact. See Dayka & Hackett, LLC v. Del Monte Fresh Produce N.A., Inc., 228

Ariz. 533, ¶ 6, 269 P.3d 709, 712 (App. 2012). The trial court should grant summary

judgment when “the moving party shows that there is no genuine dispute as to any

material fact and the moving party is entitled to judgment as a matter of law.”

Ariz. R. Civ. P. 56(a).1 Where no evidence exists to support an essential element of a

claim, summary judgment is appropriate. Orme Sch. v. Reeves, 166 Ariz. 301, 310, 802

P.2d 1000, 1009 (1990); Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, ¶ 22, 180 P.3d

977, 982 (App. 2008).

Medical Battery2

¶7            Rice first argues the trial court erred while applying the law of medical

battery to his case. He reasons that under Duncan v. Scottsdale Med. Imaging, Ltd., 205

Ariz. 306, 70 P.3d 435 (2003), consent is not valid when the surgeon is suffering from an

undisclosed drug dependency at the time consent is given, because it effectively revokes


       1
        Rule 56 was revised effective January 1, 2013, but the changes were stylistic and
not intended to “alter the substantive requirements for obtaining summary judgment as
developed in Arizona case law.” Ariz. R. Civ. P. 56(h) cmt. We therefore cite to the
current rule.
       2
        Although Brakel and the Center have raised a statute of limitations defense on
appeal, we do not address this issue because the trial court did not rule on it. See Burns v.
Davis, 196 Ariz. 155, ¶¶ 40-41, 993 P.2d 1119, 1129 (App. 1999) (appellate court does
not address issues trial court has not ruled on absent a record “so fully developed that the
facts and inferences are perfectly clear”).


                                             4
the patient’s right to choose his surgeon and exposes the patient to much greater risk than

he anticipated—essentially, that he received a different surgeon than the one to whom he

consented. Brakel responds that Duncan stands only for the proposition that a medical

battery exists if a patient receives a procedure to which he did not consent. Because Rice

consented to the procedure he received, Brakel argues, Rice has no claim for battery.

¶8            The elements of common law battery consist of an intentional act by one

person that “results in harmful or offensive contact with the person of another. . . . [A]

health care provider commits a common law battery on a patient if a medical procedure is

performed without the patient’s consent.” Duncan, 205 Ariz. 306, ¶ 9, 70 P.3d at 438

(citations omitted). In Duncan, our supreme court clarified the distinction between “lack

of consent” and “lack of informed consent.” Id. ¶ 13. In so doing, the court adopted the

reasoning of the California Supreme Court case Cobbs v. Grant, 502 P.2d 1 (Cal. 1972),

which stated that “‘[t]he battery theory should be reserved for those circumstances when

a doctor performs an operation to which the patient has not consented. When the patient

gives permission to perform one type of treatment and the doctor performs another, the

requisite element of deliberate intent to deviate from the consent given is present.’” Id.

¶ 11, quoting Cobbs, 502 P.2d at 8. In choosing to classify a lack of informed consent

cause of action under a negligence theory, the California court also relied on several

public policy considerations: (1) battery does not require expert testimony on community

standards; (2) punitive damages are available under battery; and (3) malpractice

insurance may not cover intentional torts like battery. Cobbs, 502 P.2d at 8. Based on

this reasoning, our supreme court held that “claims involving lack of consent, i.e., the


                                            5
doctor’s failure to operate within the limits of the patient’s consent, may be brought as

battery actions. In contrast, true ‘informed consent’ claims, i.e., those involving the

doctor’s obligation to provide information, must be brought as negligence actions.”

Duncan, 205 Ariz. 306, ¶ 13, 70 P.3d at 439.

¶9            In Duncan, the court further stated that consent can be ineffective if it was

induced by “fraud or misrepresentation.” Id. ¶ 20. It adopted the Restatement (Second)

of Torts § 892B(2) (1979), which states:

              If the person consenting to the conduct of another is induced
              to consent by a substantial mistake concerning the nature of
              the invasion of his interests or the extent of the harm to be
              expected from it and the mistake is known to the other or is
              induced by the other’s misrepresentation, the consent is not
              effective for the unexpected invasion or harm.

¶10           Rice has failed to establish a genuine issue of material fact as to his alleged

lack of consent. It is undisputed that he signed a consent for the operation he received to

be performed by Brakel. He has not shown that Brakel made any misrepresentation that

goes to “the nature of the invasion of his interests or the extent of the harm to be

expected.” Restatement § 892B(2). Therefore, under Duncan, he has not established a

prima facie case for medical battery.

¶11           Furthermore, we decline his invitation to expand medical battery to a

situation in which the surgeon fully explains the procedure and obtains consent, but fails

to disclose some other potential issue. First, to accept his argument, we would have to

approve the idea that the tort of medical battery includes a claim that Rice did not consent

to a negligent surgeon. This theory of liability would transform medical malpractice



                                             6
claims into battery claims. However, Duncan states that claims involving a doctor’s

failure to provide relevant information “must be brought as negligence actions.” Duncan,

205 Ariz. 306, ¶ 13, 70 P.3d at 439.

¶12           Second, Rice has an available cause of action for any damages caused by

Brakel’s failure to disclose, because the duty to disclose relevant risks already exists

under the informed consent theory of medical malpractice. Gorney v. Meaney, 214 Ariz.

226, ¶ 15, 150 P.3d 799, 804 (App. 2007). Under this doctrine, a causal nexus must exist

between the patient’s consent to treatment, an undisclosed negative influence, and the

injury the patient claims. Id. The doctrine prevents liability where such a nexus remains

speculative or nonexistent.3 See id. (plaintiff must show “adequate disclosure would have

caused the plaintiff to decline the treatment”); Cobbs, 502 P.2d at 11. The doctrine thus

strikes a balance between the patient’s right of self-determination and the doctor’s

exposure to liability that we see no reason to disrupt.

¶13           Finally, we decline to create an alternative and automatic source of liability

under a battery cause of action when a patient claims that a doctor failed to disclose,

without specific inquiry from the patient, indeterminate factors before performing a

procedure, arguably creating a mistake of fact or misrepresentation that vitiates the

patient’s consent. See Restatement § 892B (where substantial mistake exists known to

one party that induces other party to consent, consent ineffective). To do so would

essentially circumvent the informed consent doctrine, which our supreme court has stated

       3
       As we discuss below, Rice failed to adduce evidence that he would not have
consented to the surgery had he been informed of Brakel’s drug dependency.


                                              7
unequivocally must be pleaded under a negligence theory. Duncan, 205 Ariz. 306, ¶ 11,

70 P.3d at 439.

¶14           Rice argues further that Brakel impliedly represented that he was not

illegally taking prescription drugs during the relevant time period. He reasons that this

was a sufficient misrepresentation to vitiate his consent. But in adopting the reasoning of

Cobbs, our supreme court implicitly accepted the premise that a physician’s disclosure

requirements should be related to the procedure involved and some objective community

standard of care in performing it. Id.; Cobbs, 502 P.2d at 8. To expand the disclosure

requirements under a battery theory would undermine these policy choices and could

require doctors to volunteer personal information on the off chance that a patient might

later be able to claim it was important to effective consent generally—as judged by a lay

person. Patients would not have to prove that the information actually was relevant to

them, that the doctor had breached the relevant standard of care in failing to disclose the

information, or that they actually had sustained a medical injury. Instead, they would

have to establish only that the absence of disclosure created a mistake of fact or could be

considered a misrepresentation that would void their consent as a matter of law. See

Restatement § 892B. We believe our supreme court has rejected this idea already by

adopting the reasoning of Cobbs.        Duncan, 205 Ariz. 306, ¶ 11, 70 P.3d at 439.

Additionally, Rice was unable to cite any case holding that the mental or physical status

of the physician constituted an implied misrepresentation voiding consent. We decline to

introduce this uncertainty into the law of medical torts.




                                              8
¶15          Because Rice, and plaintiffs generally, already have an avenue to pursue

claims of lack of informed consent through medical malpractice actions, and the logic of

Duncan directs this result, we reject Rice’s theory of medical battery.4 We reiterate that

actions for medical battery “‘should be reserved for those circumstances when a doctor

performs an operation to which the patient has not consented.’” Id., quoting Cobbs, 502

P.2d at 8 (emphasis added).

¶16          The evidence in the record shows Rice consented to the procedure he

received. He cited no affidavit or deposition testimony stating that Brakel misrepresented

the nature of the procedure to him, that he did not generally consent to Brakel performing

the procedure, or that Brakel exceeded the scope of the procedure to which he consented.

He adduced no evidence that Brakel explicitly told him he was not suffering from a drug

dependency in order to induce him to consent. He therefore failed to establish the

essential elements of medical battery, and the court did not err in granting summary

judgment to Brakel and the Center on this issue.5 See Orme Sch., 166 Ariz. at 310, 802

P.2d at 1009.6



      4
       Georgia courts have reached the same conclusion in similar situations. See
Albany Urology Clinic, P.C. v. Cleveland, 528 S.E.2d 777, 778-79, 781 (Ga. 2000);
Bowers v. Lee, 577 S.E.2d 9, 10 (Ga. Ct. App. 2003), overruled on other grounds by
Mateen v. Dicus, 637 S.E.2d 377, 379 (Ga. 2006).
      5
        In so concluding, we do not condone Brakel’s actions or suggest that the mental
and physical status of the physician can never be relevant to a negligence claim, given
proper proof of the elements of medical negligence.
      6
        Because we conclude Rice did not establish the essential elements of battery, we
do not address his related argument that punitive damages are appropriate in this case.


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Negligent Supervision

¶17           Rice next argues that the Center negligently supervised Brakel by allowing

him to perform surgery while suffering from a drug dependency. He reasons that because

Brakel was a partner in the Center, his own knowledge of his drug dependency was

imputed to the Center, making the Center aware of his actions as a matter of law. The

Center responds that Brakel’s knowledge was not imputed to it as a matter of law and that

Rice failed to establish that it otherwise had breached the standard of care.

¶18           To establish a prima facie case of negligent supervision, the plaintiff must

adduce evidence that the surgeon’s employer “knew or should have known that a

[surgeon] was not competent to provide certain care and that the [employer]’s failure to

supervise the [surgeon] caused injury to the plaintiff.” Humana Hosp. Desert Valley v.

Superior Court, 154 Ariz. 396, 400, 742 P.2d 1382, 1386 (App. 1987). Therefore, the

employer’s knowledge, “actual or constructive, is an essential factor in determining

whether or not the [employer] exercised reasonable care or was guilty of negligence.”

Tucson Med. Ctr., Inc. v. Misevch, 113 Ariz. 34, 36, 545 P.2d 958, 960 (1976).

¶19           “[A] corporation is bound by the knowledge acquired by, or notice given to,

its agents or officers which is within the scope of their authority and which is in reference

to a matter to which their authority extends.” Fridena v. Evans, 127 Ariz. 516, 519, 622

P.2d 463, 466 (1980). But when an agent’s actions are actually hostile to the interests of

his employer, the presumption is that the employer has no knowledge of the agent’s

actions. Anchor Equities, Ltd. v. Joya, 160 Ariz. 463, 466, 773 P.2d 1022, 1025 (App.

1989).


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¶20           Here, Rice failed to adduce any evidence below that Brakel held any

supervisory position with the Center or, specifically, that he had authority to deal with

allegedly impaired physicians. See Fridena, 127 Ariz. at 519, 622 P.2d at 466 (fact of

doctor’s status as operating surgeon and controlling stockholder insufficient, without

more, for finding of agency). Brakel’s suffering from a drug dependency and stealing

medication from his patients were not actions that were contemplated by his duties as a

neurosurgeon with the Center, nor did these actions further the Center’s interests.

Moreover, these actions were adverse to the interests of the Center, and therefore

knowledge of the actions was not properly imputable to it. See Joya, 160 Ariz. at 466,

773 P.2d at 1025. Rice otherwise adduced no evidence below that the Center was made

aware of Brakel’s condition before the surgery.

¶21           Additionally, as we discuss below, Rice has failed to demonstrate that the

injury he claims was proximately caused by the surgery. Thus, even if the Center did

have knowledge of Brakel’s dependency, Rice’s claim would still fail. See Humana

Hosp. Desert Valley, 154 Ariz. at 400, 742 P.2d at 1386. Because Rice did not adduce

evidence below that the Center had actual or constructive knowledge of Brakel’s

problems before his surgery, or that the surgery itself proximately caused him injury, he

failed to establish the essential elements of negligent supervision and the trial court did

not err in granting the Center summary judgment on this issue. See Orme Sch., 166 Ariz.

at 310, 802 P.2d at 1009.




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Informed Consent

¶22           Rice next argues that a genuine dispute of material fact exists about

whether he gave informed consent, and that it is up to the jury to determine “whether the

increased risk contributed to [his] injury.”      Brakel responds that Rice has failed to

establish a breach of the standard of care or causation and therefore his claim must fail.

¶23           Medical malpractice is established by showing a breach of the applicable

standard of care and that the breach caused the plaintiff’s injuries. See Seisinger v.

Siebel, 220 Ariz. 85, ¶ 32, 203 P.3d 483, 492 (2009); see also A.R.S. § 12-563. Plaintiffs

alleging lack of informed consent must show two types of causation: (1) the plaintiff

would have declined the treatment with adequate disclosure; and (2) the treatment

proximately caused injury to the plaintiff. Gorney, 214 Ariz. 226, ¶ 15, 150 P.3d at 804.

¶24           Here, Rice failed to adduce evidence that he would have declined the

treatment had Brakel’s status been disclosed. Additionally, he has not established that

Brakel’s acts about which he complains proximately caused his injury. He therefore

failed to establish the essential elements of this claim. The court did not err in granting

summary judgment to Brakel on this issue. See Orme Sch., 166 Ariz. at 310, 802 P.2d at

1009.

Negligent Performance of the Procedure

¶25           Rice further argues that disputed issues of material fact exist about whether

the procedure was performed properly.          Brakel responds that Rice has failed to

demonstrate a breach of the proper standard of care.




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¶26           As above, a plaintiff establishes medical malpractice by showing a breach

of the applicable standard of care and that the breach caused the plaintiff’s injuries. See

Seisinger, 220 Ariz. 85, ¶ 32, 203 P.3d at 492; see also A.R.S. § 12-563. Evidence that a

doctor may have been struggling with a drug or alcohol dependency at the time of the

plaintiff’s surgery is insufficient to prove a breach of the standard of care. See Ornelas v.

Fry, 151 Ariz. 324, 328, 727 P.2d 819, 823 (App. 1986). A plaintiff must also show that

the dependency “translate[d] into conduct falling below the applicable standard of care”

in the performance of the procedure. Id.

¶27           Rice was unable to adduce any expert testimony establishing that Brakel’s

performance of the surgery fell below the applicable standard of care. His own expert

gave the following deposition testimony:

              Q We look at this surgery, based on what you told me
              before, if we take the opiate issue out of this case and I want
              to go back to what you told me under oath before, the MRI
              imaging studies that reflect decompression of the nerve roots,
              the records that reflect . . . return[] to normalcy of the
              reflexes, return to normalcy of strength, return to normalcy of
              sensation, and when you look at the placement of the
              hardware by Dr. Brakel, this was a technically appropriately
              performed procedure, true? That would be within the standard
              of care?

              MR. BERLIN: Objection to form and foundation.

              Q True?

              A True.7

       7
         The last line of this testimony was not included in the record below, but Rice
conceded that it was an “accurate transcription” in his response to Brakel’s statement of
facts in support of his motion for summary judgment.


                                             13
Because his own expert conceded that Brakel performed the procedure within the

relevant standard of care, Rice failed to establish the essential elements of this claim.

And, again, he has failed to show that the conduct about which he complains proximately

caused his injury. Thus, the trial court did not err in granting summary judgment to

Brakel on this issue.8 See Orme Sch., 166 Ariz. at 310, 802 P.2d at 1009.

Covenant of Good Faith and Fair Dealing

¶28           Rice last argues the trial court erred in granting summary judgment to

Brakel on his claim that Brakel breached a covenant of good faith and fair dealing by

providing treatment while impaired. However, he neither cites to relevant portions of the

record nor addresses the basis of the court’s decision in granting summary judgment—

that Rice had failed to show that a breach occurred or that the claimed injury resulted

from the breach. He has therefore waived any argument against upholding it. Ariz. R.

Civ. App. P. 13(a)(6) (“An argument . . . shall contain the contentions of the appellant

with respect to the issues presented, and the reasons therefor, with citations to the

authorities, statutes and parts of the record relied on.”); State Farm Mut. Auto Ins. Co. v.

Novak, 167 Ariz. 363, 370, 807 P.2d 531, 538 (App. 1990). We therefore decline to

consider this argument.




       8
        Although Rice mentions the “loss of chance” doctrine, he does not sufficiently
argue it, and we do not consider it further. See State Farm Mut. Auto Ins. Co. v. Novak,
167 Ariz. 363, 370, 807 P.2d 531, 538 (App. 1990).


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                                           Costs

¶29            The Center asks for its costs on appeal pursuant to A.R.S. § 12-331. We

note that on appeal to this court, costs may be recoverable under A.R.S. § 12-342 rather

than § 12-331. In our discretion, we award the Center its costs on appeal pursuant to

§ 12-342(A).

                                        Conclusion

¶30            For the foregoing reasons, we affirm the judgments of the trial court.




                                              /s/ Joseph W. Howard
                                              JOSEPH W. HOWARD, Chief Judge

CONCURRING:


/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


/s/ Michael Miller
MICHAEL MILLER, Judge




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