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Monday, October 14, 2019

Med-mal claim against Tempe hospital to proceed after settlement with surgeon

State Supreme Court

By John Breslin | Jul 24, 2018


PHOENIX (Legal Newsline) – Three patients who claimed negligence by a doctor during surgery can continue their independent claim against the hospital where the procedure took place, the Arizona Supreme Court has ruled.

"We today hold 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. This is true even when the independent negligence claim requires proof of the surgeon’s negligence," the July 9 ruling stated.

Plaintiffs Thomas Kopp, Melissa Ornelas and Maria Judith Gonzalez, all of whom underwent bariatric surgery at St. Luke's Hospital in Tempe, Ariz., initially filed suit against Dr. Eric Schlesinger, the facility, and its parent group, the Physician Group of Arizona.

They claimed negligence on the part of the doctor and that his employers were "vicariously" liable for his actions and also independently liable because of its hiring and selection process.

The three plaintiffs reached a settlement with Schlesinger that also barred them pursuing a claim of vicarious liability against the hospital. A claim of vicarious liability holds the hospital responsible for a surgeon's actions and arguments must include evidence of those actions.

But the agreement did not stop them from pursuing an independent action against the hospital over claims its hiring and supervision of the bariatric surgery program were negligent.

The hospital then filed a motion to dismiss all claims against it on the basis that they were "derivative of Dr. Schlesinger's negligence." The trial court agreed, a decision affirmed by the Court of Appeals, Division 1.

But the Supreme Court disagreed, drawing a clear line between the vicarious liability claim and one arguing that "the hospital breached a separate duty of care in its administration of the surgery program."

In a unanimous opinion, Chief Justice Scott Bales wrote, "Indeed, plaintiffs’ claims against the Hospital fall squarely within the type of independent negligence claims this court has previously recognized.

"Plaintiffs are not barred from bringing their claims for negligent hiring, credentialing, and supervision against the hospital."

Vacating and reversing the previous court rulings, the justices remanded the case back to Maricopa County Superior Court.

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