In its unreported opinion filed on September 19, 2017, the Arizona Court of Appeals Division One (“Arizona Appellate Court”), Arizona’s intermediate appellate court, held that it was error for the trial court to instruct the Arizona medical malpractice jury with regard to the plaintiff’s assumption of risk where the plaintiff signed an informed consent form in which she acknowledged that the antibiotic treatment prescribed by the defendant physician could cause harmful side effects, and she allegedly suffered persistent dizziness as a result of the antibiotic.
The defendant physician prescribed the antibiotic gentamicin to the plaintiff to treat a surgical-wound infection. The plaintiff received gentamicin intravenously in the hospital and then was discharged under orders to continue intravenous gentamicin therapy via a home-healthcare provider. The at-home treatment was discontinued after the plaintiff experienced dizziness that she alleges never resolved.
The plaintiff filed her Arizona medical malpractice case against the defendant physician, alleging that the defendant physician negligently prescribed the gentamicin therapy.
The day before her discharge from the hospital, the plaintiff had signed an “AMINOGLYCOSIDE INFORMED CONSENT” form that stated: “I, Gail L. Stewart, understand that I am agreeing to receive intravenous aminoglycoside therapy. I have been warned of the possibility of irreversible ototoxicity, specifically, hearing loss and dizziness. I have also been warned of the possibility of kidney damage. I have had the opportunity to discuss my questions with a nurse and/or pharmacist. My questions and concerns have been addressed to my satisfaction. I understand and agree to assume the risks related to my therapy. I hereby consent to receive aminoglycoside therapy from Altius Healthcare.”
The defendant physician requested that the trial judge instruct the Arizona medical malpractice jury regarding the plaintiff’s assumption of risk of injury. The plaintiff objected to the trial court giving the assumption of risk jury instruction, but the trial judge nonetheless provided the jury with the assumption of risk instruction (“A person assumes the risk of injury when he has knowledge of a particular risk, appreciates its magnitude, and voluntarily subjects himself to the risk under circumstances that show his willingness to accept that particular risk”), over the plaintiff’s objection. The Arizona medical malpractice jury returned a defense verdict, and the plaintiff appealed.
The Arizona Appellate Court stated that the plaintiff was advised of potential side effects of the gentamicin therapy prescribed by the defendant physician and agreed to “assume the risks related to [the] therapy,” but this so-called “assumption of risk” was nothing more than the plaintiff’s acknowledgement that the gentamicin therapy could cause adverse side effects: the consent form in no way purported to relieve the defendant physician of the duty of care to prescribe appropriate medical treatment. At most, the form established that the defendant physician could not be held liable for a non-negligent treatment plan that resulted in unfortunate incidental harm.
The Arizona Appellate Court held that the plaintiff’s Arizona medical malpractice case is not a case in which a contract or the plaintiff’s conduct created a waiver of negligence, the enforceability or scope of which the jury could decide, but rather is a case where the contract in question simply did not implicate assumption of risk in the legal sense at all (the assumption of risk instruction inappropriately invited the jury to treat the consent form as a waiver of the duty of care, and even invited the jury to find the plaintiff at fault for her injuries). The Arizona Appellate Court therefore held that the trial court erred by submitting the Arizona assumption of risk instruction to the jury.
Source Stewart v. Malhotra, No. 1 CA-CV 16-0192
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