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Rice v. Brakel

Court of Appeals of Arizona, Second Division, Department A

September 12, 2013

JAY RICE and BETTY RICE, a married couple, Plaintiffs/Appellants,
ARLO B. BRAKEL, M.D. and JANE DOE BRAKEL, a married couple; CENTER FOR NEUROSCIENCES, an Arizona Business Entity and Licensed Healthcare Provider, Defendants/Appellees.

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. C20107372 Honorable Jeffrey T. Bergin, Judge

Laurence M. Berlin, Attorney for Plaintiffs/Appellants

Smith Law Group, Christopher J. Smith, E. Hardy Smith, and Kathleen L. Leary, Attorneys for Defendants/Appellees Arlo B. Brakel, M.D. and Jane Doe Brakel

Slutes, Sakrison & Rogers, P.C., Tom Slutes, Kathleen M. Rogers, and Diana L. Kanon-Ustariz, Attorneys for Defendant/Appellee Center for Neurosciences



¶1 Appellants Jay and Betty Rice appeal from the trial court's grant of summary judgment in favor of Arlo Brakel and the Center for Neurosciences. On appeal, they argue that the court erred in dismissing their claim for medical battery and that genuine disputes of material fact exist with respect to their negligent supervision, medical malpractice, and contract claims. Because we find no error, we affirm.

Factual and Procedural Background

¶2 "We view the facts and the inferences to be drawn from those facts in the light most favorable to the party against whom [summary] judgment was entered." Mousa v. Saba, 222 Ariz. 581, 15, 218 P.3d 1038, 1042 (App. 2009). On July 30, 2007, Jay Rice ("Rice") underwent spinal surgery on his S1 and L5 nerve roots in an attempt to relieve pain in his right leg. Rice also was experiencing pain in his left leg before the surgery. Arlo Brakel ("Brakel"), a neurosurgeon, performed the surgery. The procedure successfully relieved pain in his right leg, but Rice experienced increasing pain in his left leg after the surgery.

¶3 Other doctors in Brakel's practice group, the Center for Neurosciences ("Center"), provided follow-up care. Initially the follow-up exams indicated Rice probably was experiencing some nerve irritation as a result of the surgery. However, an MRI from 2010 indicated that Rice had scar tissue surrounding one nerve root, and an exam in March of that year showed fibrillation and insertion potentials consistent with L5 or S1 radiculopathy on the left side. After an exam in October 2011, one of Rice's doctors concluded there was "[p]robable operative injury to S1 nerve root and postoperative scar affecting L5 nerve root."

¶4 In July 2010, Rice read a newspaper article about how to use the Board of Medical Examiners' website to check the disciplinary history of a doctor licensed in the state. He decided to use the site to look into Brakel's history. Upon doing so, he discovered that Brakel had a dependency on unprescribed prescription drugs including morphine, Dilaudid, and Percocet around the time of Rice's July 2007 surgery, and that sometime after the surgery Brakel had been reprimanded by the board and placed on probation for five years. Brakel obtained some of these drugs by stealing them from his patients.

¶5 Rice sued Brakel and the Center for battery, negligence, and breach of contract in September 2010. Rice moved for partial summary judgment on the issues of battery and negligent supervision. Claiming Rice had failed to adduce evidence to establish a prima facie case for any of the claims against him, Brakel moved for summary judgment, and the Center moved for partial summary judgment on the issue of negligent supervision. The trial court denied Rice's motion, granted Brakel and the Center's motions, and awarded the successful parties their costs. Rice moved for a new trial, which the court denied. Rice appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).


¶6On appeal from summary judgment, we determine de novo whether the trial court correctly applied the law and whether there are any genuine disputes as to any material fact. See Dayka & Hackett, LLC v. Del Monte Fresh Produce N.A., Inc., 228 Ariz. 533, ¶ 6, 269 P.3d 709, 712 (App. 2012). The trial court should grant summary judgment when "the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a).[1] Where no evidence exists to support an essential element of a claim, summary judgment is appropriate. Orme Sch. v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990); Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, ¶ 22, 180 P.3d 977, 982 (App. 2008).

Medical Battery [[2]]

¶7 Rice first argues the trial court erred while applying the law of medical battery to his case. He reasons that under Duncan v. Scottsdale Med. Imaging, Ltd, 205 Ariz. 306, 70 P.3d 435 (2003), consent is not valid when the surgeon is suffering from an undisclosed drug dependency at the time consent is given, because it effectively revokes the patient's right to choose his surgeon and exposes the patient to much greater risk than he anticipated—essentially, that he received a different surgeon than the one to whom he consented. Brakel responds that Duncan stands only for the proposition that a medical battery exists if a ...

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