The Supreme Court of the State of Arizona (“Arizona Supreme Court”) held in its opinion filed on July 9, 2018 that a stipulated dismissal with prejudice of an agent-surgeon does not preclude a party from asserting a claim against the surgeon’s principal for its own independent negligence, even when the independent negligence claim requires proof of the surgeon’s negligence.
The three Arizona medical malpractice plaintiffs each had bariatric surgery performed by the same bariatric surgeon, after which they each suffered post-operative complications. They then filed their Arizona medical malpractice cases against the surgeon and others, including the hosptal where their surgeries were performed.
The Arizona medical malpractice cases alleged that the defendant surgeon was negligent in his surgical care of the plaintiffs and that the defendant hospital was both vicariously liable for the defendant surgeon’s negligence and independently negligent in the administration of its bariatric surgery program, including its hiring, selection, and credentialing.
The plaintiffs subsequently entered into a settlement agreement with the defendant surgeon that required the plaintiffs to dismiss with prejudice the pending claims against the surgeon and further precluded the plaintiffs from pursuing claims against the defendant hospital based on a theory of vicarious liability or respondeat superior. Nonetheless, the plaintiffs reserved the right to bring independent claims against the defendant hospital.
The settlement agreement further provided no past or present wrongdoing on the part of the surgeon is implied or should be inferred from the settlement agreement.
Pursuant to the settlement agreement with the defendant bariatric surgeon, the plaintiffs dismissed with prejudice all claims against the defendant surgeon and any claims against any co-defendants for vicarious liability, but in their stipulation specifically reserved independent claims against the defendant hospital.
The defendant hospital moved to dismiss most of the remaining claims, arguing the claims were derivative of the surgeon’s negligence. The trial court dismissed with prejudice the plaintiffs’ negligent credentialing, hiring, and supervision claims, although it noted that any independent negligence claims alleged against the defendant hospital survive the settlement with the suregon.
Arizona Supreme Court Opinion
The Arizona Supreme Court held that although the plaintiffs must prove the surgeon’s negligence to establish the causation and damages elements for their claims against the defendant hospital, those claims are not properly characterized as vicarious liability claims: the plaintiffs do not attempt to hold otherwise faultless defendants liable for the surgeon’s negligent surgical care, but rather assert that the defendant hospital breached a separate duty of care in its administration of the surgery program.
The Arizona Supreme Court held that the plaintiffs’ claims for negligent credentialing, hiring, and supervision are based on the defendant hospital’s independent negligence and thus were preserved in the settlement agreement with the surgeon, which released the defendant hospital only from claims based on vicarious liability.
Lastly, the Arizona Supreme Court held that issue preclusion does not apply because the plaintiffs’ claim against the surgeon was not actually litigated, nor did the plaintiffs agree that their settlement with him would preclude their independent negligence claims against the hospital. In fact, the settlement and dismissal documents state just the opposite, expressly preserving those claims. Furthermore, the parties’ agreement did not manifest an intent to conclusively establish the surgeon’s negligence or lack thereof – the agreement stated only that “no past or present wrongdoing on the part of [the surgeon] is implied or should be inferred by” the settlement. Thus, the plaintiffs are not barred from bringing their claims for negligent hiring, credentialing, and supervision against the defendant hospital.
Source Kopp v. Physician Group Of Arizona, No. CV-17-0222-PR.
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