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Estate of McGill v. Albrecht11/12/2002
treated with other, less dangerous medications, such as Ativan, in conjunction with low doses of Haldol. Thus, Doctor Tran was treating Ms. McGill for the mental problems that caused her incapacity, her injury arose from that course oftreatment, and that treatment was intended to address the incapacitating condition. Doctor Tran's alleged negligent acts were therefore part of the service he undertook because of Ms. McGill's incapacity, were closely connected to his relationship as a caregiver to Ms. McGill, and were related to the problems that gave rise to Ms. McGill's incapacity. Given the standards we have laid down for maintaining an APSA action, we believe summary judgment should not have been granted on the APSA claim against Doctor Tran and ComCare, his employer.
The case against Doctor Beach appears to be weaker. From what we can gather, it seems that Ms. McGill was taken to Doctor Beach's office for a general physical examination on two occasions. The standard of care evidently required that a physician performing a general physical examination of a woman of Ms. McGill's age and condition order a yearly mammogram. Doctor Beach did not do this; in fact, no mammogram was performed until sometime after Ms. McGill last saw Doctor Beach. Plaintiffs claim that Ms. McGill's relatives had requested mammograms and that Doctor Beach did not honor those requests.
We will not attempt to solve that riddle on the record before us. On remand, the trial judge has leave to re-examine the matter under the standards we have now articulated and determine whether there is a triable issue of fact concerning the APSA liability of Doctor Beach.
CONCLUSION
The judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.
STANLEY G. FELDMAN, Justice
CONCURRING:
CHARLES E. JONES, Chief Justice
REBECCA WHITE BERCH, Justice
MICHAEL D. RYAN, Justice
JOSEPH W. HOWARD, Judge
The Honorable Ruth V. McGregor recused herself; pursuant to article VI, ยง 3 of the Arizona Constitution, the Honorable Joseph W. Howard, Judge of the Arizona Court of Appeals, Division Two, was designated to sit in her stead.
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