Templeton v. Shapiro2/28/2003
' s reliance on Wang' s 1999 deposition is misplaced because Wang assumed that neither a CPM machine nor physical therapy had been provided, although Templeton did receive physical therapy, which Wang later stressed was " far more important."
Moreover, Wang did not testify in the other lawsuit that Shapiro had breached the standard of care. In his deposition in this case, Wang withdr ew the opinion he had given in the other lawsuit as having been based on " speculation." And Wang unambiguously testified in his deposition in this case that Shapiro had satisfied the standard of care, going so far as to say that, even completely failing to prescribe a CPM machine, would not have been below the standard of care if physical therapy was ordered, as Shapiro did. Although Templeton points out that Wang stated he " would [have been] uncomfortable" testifying in a malpractice action against Shapiro because they sometimes worked together, there was no indication that Wang held any adverse opinion about Shapiro' s treatment. Ultimately, Wang never stated that failure to secure a CPM machine violated the standard of care. " The standard of care must be established by specific evidence; it cannot be left to conjecture or inference." Johnson v. University Hosp. , 148 Ar iz. 37, 47, 712 P.2d 950, 960 (App. 1985), disapproved on other grounds by Dunn v. Carruth, 162 Ariz. 478, 784 P.2d 684 (1989). Accordingly, Templeton failed to produce evidence of any breach of the standard of care.
Regardless, Templeton maintains that Shapiro' s own deposition testimony, that if faced with the same circumstances, he would again prescribe a CPM machine, establishes a sufficient standard of care. Although " it is accepted in Arizona . . . that the defendant/physician' s own testimony can establish standard of care, " Potter v. H. Kern Wisner, M. D., P.C., 170 Ar iz. 331, 333, 823 P.2d 1339, 1341 (App. 1991), this " does not compel the conclusion that a policy adopted by a health care provider will always equate with the standard of care. " Peacock v. Samaritan Health Service, 159 Ariz. 123, 127, 765 P. 2d 525, 529 (App. 1988). To prove the standard of care through the defendant physician' s own testimony, that testimony must be " sufficient to establish a general medical standard. " Evans v. Bernhard, 23 Ariz. App. 413, 416, 533 P.2d 721, 724 (1975).
Shapiro did not testify about a standard of care or about a particular protocol he had for prescribing use of a CPM machine. He simply said he would prescribe it again; such testimony is insufficient " to establish a general medical standard. " Id. Accor dingly, Shapiro' s personal preference did not establish the standard of care " expected of a reasonable, prudent health care provider in [Shapiro' s] profession. " ยง 12-563. Moreover, it is undisputed that Shapiro prescribed the CPM machine. Thus, his testimony shed no light on the controversy in this case, which, according to Templeton, is whether Shapiro " and his office [negligently] failed to pursue" Shapiro' s prescribing the CPM machine.
Because Templeton failed to establish any breach of the standard of care, Shapiro was entitled to judgment as a matter of law, as " reasonable people could not agree with the conclusion advanced by . . . [Templeton' s] claim. " Orme School, 166 Ar iz. at 309, 802 P. 2d at 1008. Accordingly, the grant of summary judgment was proper. For the same reason, the tr ial court did not abuse its discretion in denying the motion for new trial. See Harris. T herefore, we affirm.
JOSEPH W. HOWARD, Judge
CONCURRING:
J. WILLIAM BRAMMER, JR., Presiding Judge
M. JAN FLUREZ, Judge
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