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Monaco v. Healthpartners of Southern Arizona6/29/1999
AFFIRMED
Appellants HealthPartners of Southern Arizona, doing business as Tucson Medical Center (TMC), and Lalitha Ramanna, M.D., raise three issues in their appeal from a jury verdict and judgment in favor of appellees James and Theresa Monaco. Appellants contend the trial court erred in denying their motions for summary judgment, for directed verdict and judgment notwithstanding the verdict, and for a new trial or remittitur. Because we find no error in the trial court's rulings, we affirm.
We view the evidence in the light most favorable to sustaining the verdict and judgment. Inch v. McPherson, 176 Ariz. 132, 859 P.2d 755 (App. 1992). In July 1995, James Monaco was referred to TMC by his doctor for a red blood cell test because of an elevated red blood cell count. The doctor wanted to determine whether the elevated count was due to the testosterone Monaco had been taking, a condition known as polycythemia, or whether his bone marrow was overproducing red blood cells, a condition known as polycythemia vera (PV). Monaco was seen by Dr. Ramanna at TMC, but the red blood cell test was not performed. Instead, he was erroneously given a five millicurie dose of phosphorus 32 (P32), a radioactive substance used to treat PV, but not polycythemia. When his doctor told him a few days later that he had been incorrectly treated with P32, Monaco was shocked, frightened, and angry. After learning P32 could cause leukemia, Monaco could not stop thinking he might contract cancer and began having sleepless nights, often waking up in cold sweats. Monaco was never diagnosed with PV, and as a result of the P32 treatment, his risk of contracting leukemia increased from one out of 16,000 to three out of 100.
In September 1996, the Monacos filed a medical malpractice action against appellants. The pertinent part of the complaint alleged that James Monaco had, as a result of appellants' alleged negligence, "suffered serious and permanent psychological complications and potentially fatal physical complications from which he continues to suffer residual pain, suffering, emotional distress, mental anguish." Before trial, appellants moved for summary judgment, arguing that they were entitled to judgment as a matter of law because Monaco had not suffered sufficient bodily harm to sustain a claim for negligent infliction of emotional distress, citing Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P.2d 28 (App. 1988), and DeStories v. City of Phoenix, 154 Ariz. 604, 744 P.2d 705 (App. 1987). The trial court denied the motion, citing Quinn v. Turner, 155 Ariz. 225, 745 P.2d 972 (App. 1987), and the matter proceeded to trial. After the Monacos had presented their case, appellants moved for a directed verdict, now known as a motion for judgment as a matter of law (JMOL),() relying on the same argument and authority asserted in their motion for summary judgment. The court denied the motion and submitted the case to the jury. It returned a $1.5 million verdict for the Monacos. After the court entered judgment, appellants reasserted their motion for JMOL and, in the alternative, moved for a new trial or remittitur. After the court denied the motions, appellants brought this appeal. We have jurisdiction pursuant to A.R.S. ยง 12-2101.
DENIAL OF MOTION FOR SUMMARY JUDGMENT
Appellants contend the trial court incorrectly denied their motion for summary judgment because, based on Burns and DeStories, they were entitled to judgment as a matter of law. The Monacos counter that the denial of summary judgment cannot be appealed after a final judgment in the same case, citing Stewart v. Mutual of Omaha Insurance Co., 169 Ariz. 99, 817 P.2d 44 (App. 1991), and Fleitz v. Van West
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