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Stock v. Kino Community Hospital6/24/2003
MEMORANDUM DECISION
Not for Publication Rule 28, Rules of Civil Appellate Procedure
AFFIRMED IN PART REVERSED AND REMANDED IN PART
Donald Stock challenges the trial court's granting of summary judgment on his negligence, medical negligence, and breach of contract claims against Dr. Rinly Gecosala and Pima County, which owns and operates Kino Community Hospital (collectively, the County). The trial court agreed with the County that Stock's failure to designate a medical expert required summary judgment on all his claims. Because we conclude that Stock was entitled to proceed without an expert on a portion of his medical malpractice claim, we reverse in part and affirm in part.
We review de novo a trial court's granting of summary judgment. Pleak v. Entrada Prop. Owners' Ass'n, ___ Ariz. ___, 67 P.3d 717 (App. 2003). We view the facts and all reasonable inferences in the light most favorable to the party against whom summary judgment was granted. Ramirez v. Health Partners of S. Ariz., 193 Ariz. 325, 972 P.2d 658 (App. 1998). So viewed, the hospital records and deposition testimony the parties submitted to the trial court showed the following.
Stock sustained a dog bite on his left ankle for which he received medical treatment at Kino Community Hospital. He returned to the hospital four days later. After Stock was seated in an examination room, Cristobal Ramirez, a certified nursing assistant, had him soak his foot in a basin of water and disinfectant. Stock testified at his deposition that Dr. Gecosala had later entered the room, examined the foot, and told Stock he needed "to start doing rabies shots now because it had been more than four days since bite, and was liable to start foaming at the mouth any minute." Stock testified that he had responded by telling Gecosala: "I'm not going to do th se shots until I talk to Animal Control... if Animal Control says this dog has not had rabies shots, I would then do the shots." Stock said that, afterward, Gecosala had left the room without saying why. Stock testified that he had then told Ramirez, "I will call [Animal Control]," and asked Ramirez to show him "where the telephone s." Ramirez responded, "I will call them," and left the room. A short while later, Gecosala and Ramirez returned to the examining room. Stock asked if Ramirez had made the telephone call, and Ramirez responded, " e didn't want me to." Stock testified that he had said again, "I will make the call," and "asked for a towel to dry foot." He said a woman from outside the examining room had given him a piece of "cotton material, but not terry cotton... not absorbent" and that, after he had "tried to dry foot off, stood up to go to where the telephone was and then fell," breaking his left wrist.
Stock sued the County for negligence, medical negligence, and breach of contract. The County moved for summary judgment when Stock did not disclose a medical expert, contending his complaint sounded only in medical malpractice under A.R.S. ยง 12-561 and, thus, required an expert to establish the applicable standard of care and the County's breach of that standard. Stock responded that he did not need a medical expert, arguing that he was proceeding on a theory of negligence rather than medical negligence and that, even if the latter, the medical negligence was so grossly apparent that a layperson could recognize it, rendering an expert unnecessary. The trial court rejected Stock's arguments and granted summary judgment in favor of the County.
Discussion
Stock argues on appeal, as he did below, that he asserted an ordinary negligence claim. He contends his case "is the same as any slip
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