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Soto v. Brinkerhoff8/31/1995
DRUKE, Chief Judge.
A jury awarded appellant Edelia Soto $431,441 on her medical malpractice claim against appellees Dr. Troy Brinkerhoff and Dr. Nick Morrison, apportioning fault as follows: 20 percent to Soto, 25 percent to each appellee, 20 percent to nonparty Mesa Lutheran Hospital (MLH), and 10 percent to nonparty Dr. David Dawson. On appeal, Soto contends that the trial court erred by: (1) denying her motion to preclude appellees from identifying Dr. Dawson as a nonparty at fault, (2) submitting the issue of Dr. Dawson's fault to the jury, and (3) denying her motion for new trial or additur as to Dr. Dawson and MLH. We reverse only as to the issues involving Dr. Dawson.
On October 18, 1990, Soto was admitted to MLH for abdominal surgery and discharged on October 25. Three days later, she was readmitted due to complications and then discharged on November 7 with a catheter for intravenous feeding. On November 23, she was again admitted to MLH because the site of the catheter had become infected. Soto was treated initially by Dr. Brinkerhoff, who removed the catheter, ordered blood cultures, and prescribed a broad spectrum antibiotic, Ancef, a cephalosporin. When Dr. Brinkerhoff went on leave, Dr. Morrison assumed Soto's care and discharged her on November 27, continuing her on cephalosporins. Before Soto's discharge, however, MLH had determined that her infection was resistant to cephalosporins but had not so advised Drs. Brinkerhoff and Morrison directly--the information apparently was only entered into MLH's computer system.
Soto testified that, because she had continuing neck and back pain following her discharge, she attempted twice to see Dr. Morrison but was unsuccessful. She then went to the emergency room of a local hospital, which took cervical x-rays and gave them to Soto to take to Dr. Brinkerhoff. When she saw Dr. Brinkerhoff on December 14, he prescribed anti-inflammatory and muscle relaxant medications, but did not look at the hospital x-rays or take any himself. On December 22, Soto sought chiropractic treatment from Dr. Dawson, who took x-rays but reported nothing unusual, except for a misalignment of the vertebrae that he treated until January 2, 1991.
The following week, Soto saw Dr. Douglas Parkin, who took x-rays and a bone scan, observed a collapsed neck vertebra at C-6, and referred her to a specialist. Soto saw the specialist in mid-February and subsequently learned that her pain was caused by the unresolved infection, which had apparently traveled from the catheter site to the C-6 vertebra. While the infection was successfully treated with an antibiotic to which it was sensitive, Soto required a corpectomy (cervical fusion) because the infection had destroyed part of the C-6 vertebra.
DR. DAWSON AS NONPARTY AT FAULT
Approximately one month before trial, appellees moved to identify Dr. Dawson as a nonparty at fault pursuant to Rule 26(b)(5), Ariz. R. Civ. P., 16 A.R.S. Soto objected to the motion and separately moved to preclude appellees "from eliciting testimony to attempt to identify [Dr. Dawson] as wholly or partially at fault." Soto argued that appellees' motion was untimely because it was not filed within the time limits prescribed by Rule 26(b)(5), which requires a party to identify a nonparty at fault "at the time of compliance with the requirements of Rule V(a) of the Uniform Rules of Practice of the Superior Court, if applicable, or within one hundred fifty (150) days after the filing of that party's answer, whichever is earlier." Soto further objected to appellees' motion on the ground that she was barred from adding Dr. Dawson as a defendant by the statute of limitations.
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