The Arizona Court of Appeals Division One filed its Memorandum Decision on June 8, 2017 in which it stated that where the plaintiffs entered into a settlement agreement and stipulation dismissing their medical malpractice claims against the defendant physician in which the parties agreed that no wrongdoing on the part of the defendant physician is implied or should be inferred by the settlement agreement, the dismissal of the plaintiffs’ negligence claims against the defendant physician preclude the plaintiffs from litigating the remaining defendants’ alleged liability as vicariously derived from any alleged negligence of the defendant physician.
The plaintiffs had filed two Arizona medical malpractice complaints in which they alleged that the defendant physician was negligent in his surgical care and that the remaining defendants were not only vicariously liable for the defendant physician’s negligence, but also independently negligent in the administrative structure of the bariatric surgery program, including the failure to impose reasonable controls for both physician and nursing care.
The plaintiffs entered a settlement agreement with the defendant physician, which required the plaintiffs to dismiss their claims against him with prejudice, and further provided: “This Agreement does not preclude [Plaintiffs] from pursuing independent claims against the hospital entities named as defendants in [Plaintiffs’ cases] but does preclude [Plaintiffs] from pursuing claims against the hospital entities named as defendants . . . based on a theory of vicarious liability or respondeat superior relating to [the defendant physician’s] acts and/or omissions.” The settlement agreement also provided that the settlement was not an admission of any wrongdoing by the defendant physician.
The parties stipulated to dismiss with prejudice of all claims against the defendant physician and any claims against any co-defendants for vicarious liability. The stipulation of dismissal provided, “Plaintiffs specifically reserve and do not dismiss independent claims against the remaining Defendants that do not relate to vicarious liability for [the defendant physician’s] alleged actions.”
The trial court dismissed with prejudice the plaintiffs’ negligent credentialing, hiring, and supervision claims based on the settlement with the defendant physician.
The Arizona Court of Appeals affirmed the dismissal of the plaintiffs’ negligent credentialing, hiring, and supervision claims, holding that the plaintiffs’ claims that defendants negligently credentialed, hired, or supervised the defendant physician were all predicated on—and therefore derivative of—the negligence of the defendant physician (“When a plaintiff sues both the agent and the principal for the negligence of the agent, a judgment in favor of the agent bars the plaintiff’s vicarious liability claim against the principal, even when the judgment is the product of a settlement”).
Nonetheless, the Arizona Court of Appeals stated that the plaintiffs’ claims of independent medical negligence against the remaining defendants “remains pending.”
Source Kopp v. Physicians, Nos. 1 CA-CV 16-0227, 1 CA-CV 16-0228, 1 CA-CV 16-0232 (Consolidated)
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