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Templeton v. Shapiro2/28/2003
MEMORANDUM DECISION
Not for Publication Rule 28, Rules of Civil Appellate Procedure
AFFIRMED
Appellant David Templeton sued appellee Steve Shapiro, M. D., for medical malpractice. Shapiro moved for summary judgment, and the trial court gr anted the motion, concluding that Templeton had produced no expert evidence that Shapiro' s conduct had fallen below the standard of care. Because Templeton failed to produce requisite evidence establishing any breach of the standard of car e, we affirm.
In reviewing a ruling on a motion for summary judgment, we view the facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. Link v. Pima County, 193 Ariz. 336, 12, 972 P.2d 669, 12 (App. 1998). In April 1997, Templeton was involved in an automobile accident in which he damaged his knee. An orthopedic surgeon operated on the knee to repair the damage. While hospitalized after the surgery, Templeton used a " continuous passive motion" (CPM) machine to rehabilitate his knee, but the sur geon did not suggest that Templeton continue to use the CPM machine after being discharged fr om the hospital. Shortly after his discharge, Templeton sought further tr eatment for his knee from Shapiro, who prescribed physical therapy and a CPM machine. Templeton received the physical therapy, but he never acquired a CPM machine.
Templeton later sought additional treatment of his knee from Dr. Wang. Wang noted that Templeton could not fully extend his knee and could bend the knee only to eighty-six degrees. Wang operated on the knee in March 1998, but Templeton' s knee remained impaired. Templeton sued Shapiro for malpractice in March 1999, stating in subsequent disclosure: " Failure to make sure that Plaintiff got the CPM machine is the basis of the lawsuit." In October 1999, Wang was deposed in a separate lawsuit Templeton had filed against the other driver in the accident. Wang was apparently under the impression at that time that Templeton had neither undergone physical therapy nor used a CPM machine. Although not asked to render a standard of care opinion, Wang did state that, had Templeton undergone physical therapy and used a CPM machine after seeing Shapiro, Templeton would have had an eighty percent chance of regaining a satisfactory range of motion in his knee.
In February 2000, Templeton listed Wang as his standard of care expert in this case. In August, Wang wrote a report about a discussion he had had with Templeton' s attorney on his opinion of Shapiro' s treatment of Templeton. Based on his new understanding that Shapiro had prescribed physical ther apy and a CPM machine for Templeton, Wang expressed reservations about testifying against Shapiro, a colleague with whom Wang sometimes performed surgery.
Wang noted he believed Shapiro' s prescribing physical therapy and a CPM machine had been " appropriate management and that physical therapy would be more important in this case than CPM, although CPM would probably offer additional benefit." Although Wang noted he still believed Templeton would have had a better recovery had physical therapy and a CPM machine actually been employed, he stressed that the physical therapy was " far more important" than the CPM machine.
Wang was later deposed twice in this case and, on both occasions, stated that he believed Shapiro had satisfied the standard of care in treating Templeton. Underscoring this point, Wang specified that, even if Shapiro had ordered only physical therapy but not a CPM machine, that " would not, in opinion, [have] constitute pr ofessional treatment below the standard of care." Shapiro was also deposed and stated that
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