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Templeton v. Shapiro2/28/2003
if he were to again treat Templeton under similar circumstances he would once again prescribe a CPM machine.
Shapiro then moved for summary judgment, arguing that Templeton had failed to produce requisite expert evidence establishing any breach of the standard of care because his only expert, Wang, had stated that Shapiro had met the standard of care. Templeton responded that, when considered in light of the surrounding circumstances, Wang' s deposition testimony was sufficient for a jury to find that Shapiro had breached the standard of care. After the trial court granted the motion, Templeton moved for a new trial, arguing that Wang' s deposition testimony, coupled with Shapiro' s own protocol, established the requisite standard of care. The trial court denied the motion, concluding that Templeton had produced little or no evidence that Shapiro had violated the standard of care and that, regardless, " Wang' s testimony that defendant did not fall below the standard of care is dispositive. "
Templeton maintains the trial court erred in granting summary judgment and in denying his subsequent motion for new trial. We review a grant of summary judgment de novo. DUWA, Inc. v. City of Tempe, 203 Ar iz. 181, 10, 52 P.3d 213, 10 (App. 2002). A motion for summary judgment should be granted if " there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(c), 16 A. R. S., Pt. 2; see also Orme School v. Reeves, 166 Ar iz. 301, 309, 802 P.2d 1000, 1008 (1990). We review a denial of a motion for new trial for a clear abuse of discretion. Harris v. Harris, 195 Ariz. 559, 6, 991 P.2d 262, 6 (App. 1999).
Templeton claims he did present evidence that Shapiro had breached the standard of care. Under A. R.S. ยง 12-563, a plaintiff in a medical malpractice action must show " he health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent heath care provider in the profession or class to which he belongs . . . in the same or similar cir cumstances." " In response to a motion for summary judgment, a medical malpractice plaintiff must show that expert testimony is available to establish that the provider' s treatment fell below the applicable standard of care. " McGuire v. DeFrancesco, 168 Ar iz. 88, 90, 811 P.2d 340, 342 (App. 1990).
We agree with Shapiro that Templeton presented insufficient evidence that Shapiro had breached the standard of care. As the trial court obser ved, Wang' s deposition testimony confirms that Shapiro' s conduct conformed to the standard of care, not that it fell below it. As Wang testified in responding to a question about whether he believed Shapiro had breached the standard of care in any way, " Based on what I know about this situation, I think not." Accordingly, Wang' s opinion is far short of " establish that [Shapiro' s] treatment fell below the applicable standard of care. " Id.
Nevertheless, Templeton argues that, when considered with the surrounding circumstances, Wang' s opinions provided the requisite pr oof of Shapiro' s breach of the standard of care. Templeton claims that, in deposition testimony in October 1999 in Templeton' s lawsuit against the other driver , Wang had stated that, " had the CPM machine been acquired when first prescribed, Templeton would have had an [eighty percent] chance of better recovery." But Templeton incompletely recites Wang' s testimony; Wang had instead stated that Templeton' s knee would have had a better recovery had " the physical therapy and the CPM [been] provided, but, . . . as [Wang] underst it, that never came to fruition. " Accordingly, Templeton
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