Opinion
No. 1 CA-CV 14-0041
06-02-2015
CYNTHIA D. BECKETT and DAVID R. BECKETT, wife and husband, Plaintiffs/Appellants, v. SONORAN SPINE CENTER, P.C., an Arizona corporation; DENNIS G. CRANDALL, M.D., and LAURA CRANDALL, husband and wife; ARIZONA PULMONARY SPECIALISTS, LTD., an Arizona corporation; JAMES R. FORSETH, M.D. and JANE DOE FORSETH, husband and wife, Defendants/Appellees.
COUNSEL Gallagher & Kennedy, P.A., Phoenix By Kiersten A. Murphy, C. Lincoln Combs, and Hannah H. Porter Counsel for Plaintiffs/Appellants Jones, Skelton & Hochuli PLC., Phoenix By J. Russell Skelton and Lori L. Voepel Counsel for Defendants/Appellees Sonoran Spine Center P.C., Dennis G. Crandall, M.D., and Laura Crandall Jennings, Strouss & Salmon, PLC., Phoenix By Richard K. Delo and John J. Egbert Counsel for Defendants/Appellees Arizona Pulmonary Specialists, Ltd. and James R. Forseth, M.D.
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2011-016229
The Honorable Arthur T. Anderson, Judge
REVERSED AND REMANDED
COUNSEL Gallagher & Kennedy, P.A., Phoenix
By Kiersten A. Murphy, C. Lincoln Combs, and Hannah H. Porter
Counsel for Plaintiffs/Appellants
Jones, Skelton & Hochuli PLC., Phoenix
By J. Russell Skelton and Lori L. Voepel
Counsel for Defendants/Appellees Sonoran Spine Center P.C., Dennis G.
Crandall, M.D., and Laura Crandall
Jennings, Strouss & Salmon, PLC., Phoenix
By Richard K. Delo and John J. Egbert
Counsel for Defendants/Appellees Arizona Pulmonary Specialists, Ltd. and James
R. Forseth, M.D.
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Kenton D. Jones joined. KESSLER, Judge:
¶1 Plaintiff/Appellants Cynthia D. Beckett and David R. Beckett appeal a jury verdict in favor of Defendants/Appellees Sonoran Spine Center, P.C., Dennis G. Crandall, M.D. ("Dr. Crandall"), Laura Crandall, Arizona Pulmonary Specialists, Ltd., James R. Forseth, M.D. ("Dr. Forseth"), and Jane Doe Forseth. For the following reasons, we reverse and remand for a new trial.
FACTUAL AND PROCEDURAL HISTORY
¶2 On September 15, 2009, Mrs. Beckett underwent spinal reconstruction surgery. The surgery was performed by Dr. Crandall at St. Joseph's Hospital and Medical Center ("St. Joseph's Hospital") in Phoenix. After the surgery, Mrs. Beckett was monitored by Dr. Crandall and others from his practice, as well as by Dr. Forseth, a pulmonary critical care physician. Mrs. Beckett was discharged from the hospital on Thursday, September 24, 2009.
Dr. Forseth did not evaluate Mrs. Beckett's surgical wound during her stay at the hospital, rather Dr. Crandall brought him on to monitor Mrs. Beckett's asthma, blood pressure, blood sugars, labs, and the chemicals in her blood.
¶3 The next day, after returning to the Becketts' home in Flagstaff, Mrs. Beckett's sister called Dr. Crandall's office and spoke to his physician's assistant. Mrs. Beckett's sister was concerned about Mrs. Beckett's increased pain and the appearance of her surgical wound. She was told to keep the wound clean and dry, to double Mrs. Beckett's pain medications, and to come to Dr. Crandall's office on Monday if there had not been an improvement. On Sunday, however, Mrs. Beckett's condition quickly worsened, as she became disoriented. On Monday, September 28, 2009, a doctor from Flagstaff came to the Becketts' home and examined Mrs. Beckett. After examining Mrs. Beckett, the doctor told Mr. Beckett to call an ambulance to take her to the hospital. There, surgeons debrided Mrs. Beckett's surgical wound. The medical staff later diagnosed Mrs. Beckett with sepsis and a wound infection containing various forms of colonic bacteria, including E. coli.
¶4 In September 2011, the Becketts filed suit against Dr. Crandall and his spouse, Dr. Forseth and his spouse and the physicians' respective practices, Sonoran Spine Center, P.C. and Arizona Pulmonary Specialists, Ltd. After a jury trial, the jury returned a verdict in favor of Appellees. The Becketts filed a timely appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003) and 12-2101(A)(1) (Supp. 2014).
Additionally, the Becketts filed suit against St. Joseph's Hospital, as well as Kostas Economopoulos, M.D. ("Dr. Economopoulos") and his wife. The Becketts, however, voluntarily dismissed St. Joseph's Hospital and failed to serve process on Dr. Economopoulos and his wife.
DISCUSSION
I. Jury Instruction - Assumption of Risk
¶5 The Becketts argue that the trial court committed reversible error by instructing the jury on assumption of risk without evidence to support such an instruction. "We review the trial court's decision to give or refuse a jury instruction for an abuse of discretion." State v. Hurley, 197 Ariz. 400, 402, ¶ 9, 4 P.3d 455, 457 (App. 2000); see also Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17, 141 P.3d 824, 830 (App. 2006) (stating that a trial court abuses its discretion when there is "no evidence to support [it's] conclusion").
A. Waiver
¶6 As a preliminary issue, Appellees contend the Becketts have waived this argument on appeal because the Becketts failed to assert a valid basis for objecting to the assumption of risk instruction in the trial court. We disagree.
¶7 The court met with the parties' counsel in chambers, off the record, to discuss the proposed jury instructions. When the court resumed the proceedings on the record, the Becketts' counsel stated he "would just renew [his] objection that [he] made to the prior jury instruction ruling concerning [Mrs.] Beckett's negligence and assumption of the risk" and would "just like to put that on the record, that [he] did object to - on the fact that there's been no evidence of [the Becketts'] negligence as offered into evidence in this case." The court denied the objection, outlining that Appellees had presented sufficient evidence to warrant an instruction on Mrs. Beckett's negligence and that the "forms" signed by Mrs. Beckett, which acknowledged the risk of infection for the procedure, were sufficient to warrant an instruction on assumption of risk.
¶8 To "assign as error the giving or the failure to give an instruction," Rule 51(a) of the Arizona Rules of Civil Procedure requires a party to object to that instruction, "stating distinctly the matter objected to and the grounds of the objection." The purpose of requiring a specific objection to the instruction is "to fully advise the trial court of the basis of a litigant's position so that it may not be led into involuntary error." S Dev. Co. v. Pima Capital Mgmt. Co., 201 Ariz. 10, 19, ¶ 20, 31 P.3d 123, 132 (App. 2001) (citation and internal quotation marks omitted). Given that the court and counsel had previously discussed these issues in chambers, as well as the objection of the Becketts' counsel and the court's response to that objection, it is clear the court was on notice that the Becketts' objection was based on whether sufficient evidence supported an instruction on assumption of risk. Therefore, we do not find that the Becketts have waived this argument.
B. Sufficiency of the Evidence
¶9 The trial court provided the jury with the following instruction:
Dr. Crandall and Dr. Forseth claim that Cynthia Beckett was at fault by assuming the risk of injury. A person assumes the risk of injury when she has knowledge of a particular risk, appreciates its magnitude, and voluntarily subjects herself to the risk under circumstances that show her willingness to accept that particular risk.
As to this claim, the Defendant must prove:
1. Cynthia Beckett assumed a particular risk of injury; andAn individual may "assume the risk" of another's conduct either expressly or impliedly. "A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy." Restatement (Second) of Torts § 496(B) (1965).
2. The particular risk was a cause of Cynthia Beckett's injury.
You must decide whether Defendants have proved that Cynthia Beckett was at fault by assuming the risk of injury and, under all the circumstances of this case, whether any such fault should reduce Plaintiffs' full damages. These decisions are left to your sole discretion.
If you decide that Cynthia Beckett's fault from negligence or assumption of the risk should reduce Plaintiffs' damages the court will later reduce Plaintiffs' full damages by the percentage of fault you have assigned to Cynthia Beckett.
¶10 During trial, the parties stipulated to admit Exhibit 39, which included a form signed by Mrs. Beckett, titled "Patient Informed Consent for Spine Surgery." The trial court and Appellees rely solely on this form as evidence sufficient to support an instruction on assumption of risk. A section regarding risks of the spine surgery appears on the form and states:
This authorization is given with the understanding that any operation or procedure involves some risks and hazards. My doctor has explained the risks to me. Some of the significant risks of this particular procedure are: Death, paralysis, infection, pulmonary embolism, nerve injury, and dural leak . . . . I also understand that the more common risks of any procedure include: infection, bleeding, nerve injury, blood clots, heart attack, allergic reactions and pneumonia. These risks are serious and possible fatal.
¶11 This Court has previously explained that, "[a]lthough it may sometimes be permissible for a party to contractually absolve itself from liability for negligence, such provisions are strictly construed against the party relying on them." Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 187, 800 P.2d 1291, 1295 (App. 1990). Such contractual agreements should be clear, unequivocal, and "alert the party agreeing to such a provision that it is giving up a very substantial right." Id. Therefore, for an agreement to properly absolve a party from liability for negligence, that agreement must "reflect the clear intent of the parties to bargain away the right to hold one party responsible for its own negligence." Id. The language of the "Patient Informed Consent for Spine Surgery," signed by Mrs. Beckett fails to reflect that Mrs. Beckett had any intent to bargain away her right to hold Dr. Crandall or Dr. Forseth responsible for their negligence. At most, the language of the form demonstrates that despite the lack of any language assuming any risk, Mrs. Beckett consented to the risk of post-operative infection, but not to the failure of her doctors to diagnose and treat an infection.
¶12 This conclusion is further supported by the testimony at trial. Mrs. Beckett testified that although she was told infection "was definitely a risk," she was also told her doctors would be "assessing [her] for any signs of infection." Further, Dr. Crandall testified that the consent form did not include consent to the risk that Mrs. Beckett's doctors would fail to diagnose and treat an infection. Therefore, the evidence presented at trial was not sufficient to warrant an instruction based on express assumption of risk of the physicians' negligence, as there was no evidence that Mrs. Beckett expressly assumed the risk of Appellees failing to identify and treat an infection resulting from her surgery.
¶13 Appellees attempt to bypass this issue of sufficient evidence by arguing that the defense of assumption of risk is a question of fact and "issues concerning the scope and effect of the consent form are themselves issues of fact which Arizona's constitution requires to be submitted to, and decided by, the jury." Article 18, Section 5, of the Arizona Constitution provides: "The defense of . . . assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times be left to the jury." Citing Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 111 P.3d 1003 (2005), Appellees contend that if there is any evidence of assumption of risk, the court is constitutionally required by Article 18, Section 5, of the Arizona Constitution to submit the scope of the assumption of the risk to the jury.
¶14 In Phelps, Firebird Raceway relied on a release of liability Phelps had signed to allege that Phelps had assumed the risk of Firebird Raceway's negligence. 210 Ariz. at 404, ¶ 3, 111 P.3d at 1004. Although Phelps argued that the trial court must submit the question of assumption of risk to the jury under Article 18, Section 5, of the Arizona Constitution, Firebird Raceway argued that Article 18, Section 5 did not apply to express contractual assumptions of risk. Id. at ¶ 4. The trial court granted summary judgment in favor of Firebird Raceway. Id. The Arizona Supreme Court reversed. Id. at 413, ¶ 43, 111 P.3d at 1013. The supreme court held that Article 18, Section 5, of the Arizona Constitution applies to both express and implied assumption of risk. Id. at 405, ¶ 11, 111 P.3d at 1005.
¶15 Phelps is distinguishable from the facts presented here. The language of the agreement in Phelps clearly and unequivocally reflected that Phelps was consenting to give up the right to hold Firebird Raceway responsible for its negligence. Id. at 404-05, ¶¶ 2, 7, 111 P.3d at 1004-05. Thus, there was evidence that Phelps assumed the risk of Firebird Raceway's negligence and a jury had to resolve the factual dispute over the meaning and extent of the release. Id. at 413, ¶ 41, 111 P.3d at 1013. The court in Phelps never held that even if there is no evidence of assumption of risk, the issue has to be presented to the jury.
The agreement in Phelps stated:
[T]he Undersigned . . . HEREBY RELEASES, WAIVES, DISCHARGES, AND COVENANTS NOT TO SUE [Firebird] . . . FOR ALL LOSS OR DAMAGE . . . ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED, WHETHER CAUSED BY THE NEGLIGENCE OF RELEASEES OR OTHERWISE . . . .
¶16 As previously discussed, the language of the form Mrs. Beckett signed reflects no such consent or assumed risk by Mrs. Beckett. The form reflects that Mrs. Beckett consented to the risk of infection as a result of her surgical procedure, not that she assumed the risk Appellees would negligently diagnose or treat her for infection post-operatively. Clearly, if there is no evidence of assumption of risk, a defendant cannot simply assert assumption of risk as a defense and have it submitted to the jury. Further, this Court has explained that despite the broad language of Article 18, Section 5, of the Arizona Constitution, the provision does not ensure defendants an absolute right to employ a defense of assumption of risk and such a defense cannot be submitted to the jury without evidentiary support. A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515, 539, ¶ 79, 217 P.3d 1220, 1244 (App. 2009).
¶17 When a jury is instructed on a legal theory not supported by the evidence, the trial court commits reversible error, as it has "invit[ed] the jury to speculate as to possible non-existent circumstances." State v. Speers, 209 Ariz. 125, 132, ¶ 27, 98 P.3d 560, 567 (App. 2004) (citation and internal quotation marks omitted). Consequently, because the evidence presented at trial was insufficient to support the defense of express or implied assumption of risk, the court committed reversible error by giving the assumption of risk instruction and the Becketts are entitled to a new trial.
C. Lack of Prejudice
¶18 Appellees next argue that even if "there was insufficient evidence to support instructing the jury on . . . assumption of risk . . . [the Becketts'] argument[] would still fail because they cannot show prejudice." According to Appellees, the court instructed the jury, as the verdict forms indicate, to only determine the extent of Mrs. Beckett's fault if they found Dr. Crandall and Dr. Forseth negligent. Thus, the Appellees argue that because the jurors used the verdict forms finding in favor of Dr. Crandall and Dr. Forseth, the jury never determined the extent to which Mrs. Beckett was at fault, and, hence, never considered the theory of assumption of the risk.
¶19 The Arizona Supreme Court rejected a similar argument in Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 9 P.3d 314 (2000). The court explained that "it is impossible to determine whether or how jury deliberations were affected [by the erroneous jury instructions]" and:
the jurors here might have decided that some or all of the defendants were negligent, moved on to consider the erroneous assumption of risk instructions, and then as a result of that discussion returned to conclude that the defendants were not liable. Although assumption of the risk theoretically should not have become an issue until a determination of negligence was made, we cannot know whether and to what extent the jurors considered the flawed instructions.Estate of Reinen, 198 Ariz. at 290, ¶ 26, 9 P.3d at 321. The same reasoning applies here. We cannot know whether the jury considered the erroneous assumption of risk instruction in reaching its verdict. Accordingly, we vacate the jury's verdict and remand to the superior court for a new trial.
¶20 Because our decision disposes of this appeal, we do not address the Becketts' remaining arguments.
CONCLUSION
¶21 For the foregoing reasons, we vacate the judgment and remand this matter for a new trial. We grant the Becketts their taxable costs associated with this appeal, contingent on their compliance with Arizona Rule of Civil Appellate Procedure 21.
210 Ariz. at 404, ¶ 2, 111 P.3d at 1004.