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Phoenix Children's Hospital, Inc. v. Grant

November 1, 2011

PHOENIX CHILDREN'S HOSPITAL, INC., PETITIONER,
v.
THE HONORABLE LARRY GRANT, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, RESPONDENT JUDGE, JOSEPH RIDDLE AND LESA RIDDLE, HUSBAND AND WIFE, INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR DAUGHTER, ALESHA RIDDLE, REAL PARTIES IN INTEREST.



The opinion of the court was delivered by: Irvine, Presiding Judge.

OPINION

¶ 1 In Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 (App.1989), this Court held that defense counsel in a medical malpractice action may not engage in ex parte communications with a plaintiff's treating physicians without the plaintiff's consent. This special action asks us to decide if the ruling in Duquette bars communications between a defendant hospital and its counsel, and the hospital's own employees who provided treatment to the plaintiff. We hold that it does not. Therefore, we accept jurisdiction and grant relief.

FACTS AND PROCEDURAL HISTORY

¶ 2 The issue before us arises from a medical malpractice case brought by Joseph and Lesa Riddle (the "Riddles") individually and on behalf of their minor daughter, Alesha. Alesha was born with severe medical problems. She was admitted to Phoenix Children's Hospital ("PCH") for treatment, and remained there for many months. The Riddles allege that while Alesha was at PCH, nurse Lindy Teraji, a PCH employee, negligently placed a feeding tube into Alesha's trachea instead of her stomach, causing food to go into her lung, resulting in catastrophic and permanent injuries. Following this incident, Alesha continued to be treated at PCH by many different physicians and other personnel. Her treatment by PCH continues to this day.

¶ 3 The Riddles sued PCH and nurse Teraji. Citing Duquette, the Riddles filed a motion seeking to bar communications between PCH and/or its counsel and PCH employees who had treated or were treating Alesha, other than any employees who were affirmatively alleged to be liable. The trial court granted the motion.

¶ 4 PCH later filed a Motion to Permit Ex Parte Communications Between Counsel and Phoenix Children's Hospital Employees Who Treated Plaintiff Alesha Riddle. PCH also addressed the upcoming deposition of Dr. Jeffrey Pearl, a PCH-employed surgeon who had performed multiple surgeries on Alesha. PCH argued the court's ruling prevented it from adequately preparing Dr. Pearl for his deposition or effectively providing him with legal counsel.

¶ 5 The court issued an order treating PCH's motion as a motion for reconsideration and denying it. Regarding Dr. Pearl, the trial court ruled:

IT IS FURTHER ORDERED that Phoenix Children's Hospital, if they chose so, may retain the services of an attorney to represent Dr. Pearl at Dr. Pearl's deposition.

IT IS FURTHER ORDERED should Phoenix Children's Hospital retain the services of counsel for that purpose, that attorney shall not communicate with either attorney Black [PCH's counsel] or Phoenix Children's Hospital concerning anything related to the care and treatment by the treating physician with respect to the Plaintiff. Phoenix Children's Hospital cannot communicate what transpired between Dr. Pearl and counsel either.

Following PCH's notice of its intent to file this special action, the trial court stayed all discovery.

JURISDICTION

¶ 6 PCH contends that this Court should accept special action jurisdiction because it does not have an equally plain, speedy and adequate remedy by appeal, and the issue raised is of state-wide importance that is likely to recur. We agree. The issue presented is a question of law that may arise in numerous cases in the superior court. We decided Duquette as a special action, and we conclude that clarifying its application in a different context is also suitable for special action review. Therefore, we accept jurisdiction.

DISCUSSION

ΒΆ 7 This special action presents a narrow issue: Does our prior ruling in Duquette bar communications outside of formal discovery between a defendant hospital, and its counsel, and the hospital's own ...


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