Opinion
No. 1 CA-CV 16-0192
09-19-2017
GAIL L. STEWART and LONNIE RAY WOOLEVER, husband and wife, Plaintiffs/Appellants, v. RAKESH MALHOTRA, M.D., Defendant/Appellee.
COUNSEL The Massey Law Firm, PC, Scottsdale By Daniel P. Massey Counsel for Plaintiffs/Appellants Jennings, Strouss & Salmon, PLC, Phoenix By John J. Egbert Counsel for Defendant/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. S8015CV201200865
The Honorable Richard D. Lambert, Judge
REVERSED AND REMANDED
COUNSEL The Massey Law Firm, PC, Scottsdale
By Daniel P. Massey
Counsel for Plaintiffs/Appellants Jennings, Strouss & Salmon, PLC, Phoenix
By John J. Egbert
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Acting Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge Michael J. Brown and Judge Maria Elena Cruz joined. SWANN, Judge:
¶1 This appeal concerns a jury instruction on assumption of risk in a medical malpractice trial. Before receiving treatment, the plaintiff executed an informed consent form in which she acknowledged that the treatment prescribed by the defendant physician could cause harmful side effects. Based on that consent form, the superior court gave the jury a standard instruction on the defense of assumption of risk. We hold that the court committed reversible error when it gave the instruction. Though the consent form recited the phrase "assume the risks," the form's meaning did not equate to "assumption of risk" in the legal sense. Accordingly, Article 18, Section 5, of the Arizona Constitution, which requires that the jury decide assumption of risk in all cases, did not apply.
FACTS AND PROCEDURAL HISTORY
¶2 Dr. Rakesh Malhotra prescribed the antibiotic gentamicin to Gail L. Stewart to treat a surgical-wound infection. Stewart first received gentamicin intravenously in the hospital. She was then discharged under orders to continue intravenous gentamicin therapy via a home-healthcare provider. The at-home treatment was discontinued after Stewart reported dizziness. According to Stewart, the dizziness never resolved.
¶3 Stewart brought a medical negligence action that alleged (as relevant here) that Dr. Malhotra negligently prescribed the gentamicin therapy. Dr. Malhotra defended on the theory that his choice to use gentamicin, as opposed to a different antibiotic, was reasonable in Stewart's case. At trial, the parties stipulated to the admission of the following "AMINOGLYCOSIDE INFORMED CONSENT" form, which Stewart signed the day before her discharge from the hospital:
I, Gail L. Stewart, understand that I am agreeing to receive intravenous aminoglycoside therapy. I have been warned of the possibility of irreversible ototoxicity, specifically, hearing loss and dizziness. I have also been warned of the possibility
of kidney damage. I have had the opportunity to discuss my questions with a nurse and/or pharmacist. My questions and concerns have been addressed to my satisfaction. I understand and agree to assume the risks related to my therapy. I hereby consent to receive aminoglycoside therapy from Altius Healthcare.
¶4 Based on the consent form, Dr. Malhotra requested that the jury be instructed on assumption of risk as set forth in the Revised Arizona Jury Instructions (Civil) 5th Fault Instructions (hereinafter "RAJI"). The court granted that request over Stewart's objection, and instructed the jury:
FAULT 10
Plaintiff's Fault
(Assumption of Risk)
DR. MALHOTRA claims that GAIL L. STEWART was at fault by assuming the risk of injury. A person assumes the risk of injury when he has knowledge of a particular risk, appreciates its magnitude, and voluntarily subjects himself to the risk under circumstances that show his willingness to accept that particular risk.
As to this claim, DR. MALHOTRA must prove:
1. GAIL L. STEWART assumed a particular risk of injury; and
2. The particular risk was a cause of GAIL L. STEWART and LONNIE RAY WOOLEVER's injury.
You must decide whether DR. MALHOTRA has proved that GAIL L. STEWART was at fault by assuming the risk of injury and under all circumstances of this case, whether any such fault should reduce GAIL L. STEWART and LONNIE RAY WOOLEVER's full damages. These decisions are left to your sole discretion.
If you apply the defense of assumption of risk, the court will later reduce GAIL L. STEWART and LONNIE RAY
WOOLEVER's full damages by the percentage of fault you have assigned to GAIL L. STEWART.
¶5 The jury returned a defense verdict, and the court denied Stewart's motion for a new trial. Stewart timely appeals.
DISCUSSION
¶6 Stewart argues there was no basis for the assumption of risk instruction because there was no evidence that she consented to prescription of an improper antibiotic.
In her opening brief on appeal, Stewart also lists as an issue the propriety of a contributory negligence instruction. But because she does not provide any argument regarding that instruction, we do not address the issue. See Richie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) ("Opening briefs must present and address significant arguments, supported by authority that set[s] forth the appellant's position on the issue in question. Rule 13(a)(6), Arizona Rules of Civil Appellate Procedure, requires the appellant to provide 'citations to the authorities, statutes and parts of the record relied on.' Failure to do so can constitute abandonment and waiver of that claim.").
Dr. Malhotra contends that Stewart waived her appellate argument by not objecting at trial on the same grounds. "[I]nstructions not specifically objected to at the trial cannot be assigned as error on appeal under our rules of procedure," and "a specific objection to an instruction upon one ground does not raise an objection upon some other ground." Musgrave v. Githens, 80 Ariz. 188, 192 (1956). Though at trial Stewart stated that her "primary" objection to the assumption of risk instruction was her inability to elicit testimony regarding the circumstances of her consent, she also stated: "[h]ow in the world someone signing a consent form is negligent is beyond me," and "this [instruction] just is not applicable to this case." We conclude that the foregoing was sufficient to preserve Stewart's argument.
We also reject Dr. Malhotra's contention that Stewart's challenge to the assumption of risk instruction is barred by her failure to include all trial transcripts in the appellate record. The parties' arguments at the juryinstruction phase make clear that the assumption of risk instruction was given based on the informed consent form, which is part of the appellate record. Further, Dr. Malhotra does not assert that Stewart assumed risk by any mechanism other than the consent form.
¶7 Article 18, Section 5, of the Arizona Constitution provides that "[t]he 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." The language of the provision is expansive, requiring the jury to decide assumption of risk in all manner of cases. See Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 412-13, ¶ 39 (2005). But though the potential application of the defense is broad, its submission to the jury is proper only when the defense is actually implicated. See 1800 Ocotillo, LLC v. WLB Group, Inc., 219 Ariz. 200, 206, ¶¶ 29-31 (2008) (holding that Article 18, Section 5, was not implicated by a liability-limitation provision); cf. Amerco v. Shoen, 184 Ariz. 150, 156 (App. 1995) ("A trial court must instruct the jury on all valid legal theories framed by the pleadings and supported by substantial evidence."). We interpret the constitutional provision to mean that the jury, not the court, must decide whether an assumption of risk defense has factual merit in all cases. But we do not interpret it to mean that the jury must be instructed on assumption of risk upon request in every case — the defense must still be legally relevant to the evidence at trial.
¶8 "Assumption of risk" is a legal term of art. The term refers to "a defense that effectively relieve[s] a defendant of any duty of care by completely barring recovery by the injured party." 1800 Ocotillo, 219 Ariz. at 205, ¶ 25. Assumption of risk may be contractual. Phelps, 210 Ariz. at 405, ¶ 8. But a contract's mere invocation of the phrase "assume the risk" is insufficient — the contract must substantively describe a complete waiver of the defendant's negligence. See Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 187 (App. 1990) (holding that contractual waiver of negligence must be clear and unequivocal). The distinction is illustrated by our supreme court's decisions in Phelps and 1800 Ocotillo.
¶9 In Phelps, a racecar driver agreed with a racetrack to "VOLUNTARILY ELECT TO ACCEPT THE RISKS connected with my entry into the restricted area and with racing," and to "RELEASE[ ], WAIVE[ ], DISCHARGE[ ], AND COVENANT[ ] NOT TO SUE [the racetrack] . . . FOR ALL LOSS OR DAMAGE . . . WHETHER CAUSED BY THE NEGLIGENCE OF [the racetrack] OR OTHERWISE." 210 Ariz. at 404, ¶ 2. The contract "expressly confirmed that [the racecar driver] had assumed the risk of any injuries resulting from [the racetrack]'s negligence." Id. at 405, ¶ 7. The supreme court concluded that Article 18, Section 5, applied in these circumstances, id. at 410, ¶ 31, and that questions regarding the contract's enforceability were for an "adequately instructed jur[y]" to decide, see id. at 413, ¶¶ 41-42.
¶10 In 1800 Ocotillo, by contrast, the parties agreed merely to limit liability for negligence: a real-estate developer agreed with a surveying and engineering firm that "the liability of [the firm] . . . resulting from any negligent acts, errors and/or omissions of [the firm] . . . is limited to the total fees actually paid by the [developer] to [the firm]." 219 Ariz. at 201, ¶¶ 2-3. The supreme court held that "liability-limitation provisions generally are not a form of 'assumption of risk' within the meaning of Article 18, Section 5. When such provisions do not effectively relieve a party from a duty to exercise due care, but instead merely place a ceiling on recoverable damages, they do not operate like the common law defense of assumption of risk." Id. at 206, ¶ 30. 1800 Ocotillo illustrates the analysis we perform here — we must determine whether the legal defense of assumption of risk is implicated by the facts of the case before approving the defense's submission to the jury.
¶11 Here, Stewart was advised of potential side effects of the gentamicin therapy prescribed by Dr. Malhotra, and agreed to "assume the risks related to [the] therapy." But this so-called "assumption of risk" was nothing more than Stewart's acknowledgement that the gentamicin therapy could cause adverse side effects. The consent form in no way purported to relieve Dr. Malhotra of the duty of care to prescribe appropriate medical treatment. At most, the form established that Dr. Malhotra could not be held liable for a non-negligent treatment plan that resulted in unfortunate incidental harm.
¶12 This is not a case in which a contract or Stewart's conduct created a waiver of negligence, the enforceability or scope of which the jury could decide. See Phelps, 210 Ariz. at 413, ¶ 41. Rather, this is a case where the contract in question simply did not implicate assumption of risk in the legal sense at all. The superior court therefore erred by submitting the "assumption of risk" RAJI to the jury.
Because we so hold, we need not address Stewart's contention that a true assumption of risk will never be enforceable in the context of a medical-malpractice action. --------
¶13 The superior court properly could have instructed the jury on the effect of the informed consent form. Such an instruction, though not strictly necessary, could have served the legitimate purpose of ensuring that the jury would not equate the fact of Stewart's injury with a finding of negligence. But the RAJI that was given inappropriately invited the jury to treat the consent form as a waiver of the duty of care, and even invited the jury to find Stewart "at fault" for her injuries. The instruction was prejudicial, and requires reversal. See Amerco, 184 Ariz. at 159 ("Only prejudicial errors in instructions warrant reversal. Prejudicial instructions are those which, by statement or omission, support a resolution that is harmful to the complaining party and contrary to law."). Stewart is entitled to a new trial.
CONCLUSION
¶14 For the reasons set forth above, we vacate the judgment and remand this matter for a new trial.