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Desert Palm Surgical Group, P.L.C. v. Petta

Court of Appeals of Arizona, First Division

January 15, 2015

DESERT PALM SURGICAL GROUP, P.L.C., an Arizona professional limited liability company; and ALBERT E. CARLOTTI and MICHELLE L. CABRET-CARLOTTI, husband and wife, Plaintiffs/Appellees,
SHERRY PETTA, an individual, Defendant/Appellant

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Appeal from the Superior Court in Maricopa County. No. CV2008-010464. The Honorable Mark H. Brain, Judge.

Kelly McCoy, P.L.C., Phoenix, By Matthew J. Kelly, Kevin C. McCoy, Counsel for Plaintiffs/Appellees.

Clark Hill P.L.C., Scottsdale, By Ryan J. Lorenz, Sean M. Caroll, Counsel for Defendant/Appellant.

Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Judge John C. Gemmill and Chief Judge Diane M. Johnsen joined.


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[236 Ariz. 573] WINTHROP, Associate Presiding Judge:

[¶1] Sherry Petta appeals the superior court's judgment in the amount of $12,009,489.96 in favor of Desert Palm Surgical Group, P.L.C. (" DPSG" ), Dr. Albert E. Carlotti, and Dr. Michelle L. Cabret-Carlotti (collectively, " Plaintiffs" ) on claims for defamation and false light invasion of privacy. In this opinion, we affirm the superior court's denial of Petta's motions for judgment as a matter of law, but vacate the judgment and remand for a new trial because the judgment cannot be supported by the damages evidence presented and shocks the conscience of this court. We also reverse the superior court's summary judgment on Petta's counterclaim for medical battery, a claim tat may be tried on remand.


[¶2] Drs. Carlotti and Cabret-Carlotti (collectively, " the Doctors" ) are husband and wife with dental and medical degrees who operate DPSG, an Arizona professional limited liability company formed in 2002. Plaintiffs' practice offers a wide range of services, including maxillofacial surgery, cosmetic surgery, dental procedures, and various skin procedures and treatments.

[¶3] In January 2007, Dr. Carlotti performed cosmetic surgery on Petta's nose and eyelids, and Dr. Cabret-Carlotti performed laser resurfacing treatments on Petta's face. Petta was dissatisfied with the results, and aggressively voiced her dissatisfaction to the Doctors and their staff on numerous occasions. In Petta's view, the laser procedure had burned and scarred her face. Without question, healing was delayed, persistent post-operative infection occurred, and Petta's nose developed residual thickening due to scar tissue. Throughout 2007, the Doctors attempted to improve Petta's healing and appearance with various treatments, but the doctor-patient relationship deteriorated.

[¶4] Petta eventually consulted physicians not associated with DPSG and underwent other treatment on her face; the parties disputed whether the Doctors had authorized her to do so. By September 2007, Dr. Carlotti refused to continue Petta's care for a period of time, ostensibly due to Petta's " screaming and using profanity" and her reliance on " unauthorized care." On September 25, 2007, Dr. Carlotti presented Petta with the following agreement, which both he and Petta signed:

Desert Palm Surgical Group agrees to perform 3 IPL [intense pulse light] treatments of the forehead and periorbital areas, provided that there is absolutely no intervention by any unauthorized doctor,

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[236 Ariz. 574] nurse or esthetician of any type during the course of treatment. This includes medications, products and treatments. In addition, treatment intervals will be clearly defined to which the patient must comply completely. Lastly, if there is any profanity, screaming or threats made now or in the future, to either Drs. Carlotti or any staff member, you will be dismissed as a patient from Desert Palm Surgical Group.

In the fall of 2007, the IPL treatments proceeded as planned, and Petta's face improved.

[¶5] On January 3, 2008, Dr. Carlotti performed at cost a second surgery (a " revision nasal tip surgery" ) to remove the scar tissue on Petta's nose. Petta remained dissatisfied, in part because, as she alleged, the doctor had now shortened and curved her nose upward, without her permission and against her express wishes. On February 1, 2008, Petta consulted a different physician, Dr. Ronald J. Caniglia, who opined that Petta's nose had " been shortened quite a bit" and that it appeared there was " collapse in the left middle vault with a stepoff deformity there."

[¶6] Petta eventually contacted the Arizona Medical Board (" AMB" ), the Arizona State Board of Dental Examiners (" the Dental Board" ), the Arizona Radiation Regulatory Agency (" ARRA" ), and former DPSG employees and patients, and discovered the Doctors were not certified in plastic or cosmetic surgery, or maxillofacial surgery, by a certifying professional board recognized by the American Board of Medical Specialties (" ABMS" ).[2] In early March 2008, Petta submitted a formal complaint against the Doctors to the AMB, alleging they had operated on her nose beyond the scope of her consent.[3]

[¶7] At about the same time, Petta requested copies of her medical records, and although she paid for a copy of those documents, a disagreement arose over Plaintiffs' delivery of those records. On March 24, 2008, Petta called DPSG to inquire about the status of her request, and she was informed her records were ready to be picked up. When she arrived at DPSG, however, she was informed the records were not available. A heated verbal exchange followed, with Petta purportedly shouting profanity-laced warnings to other patients present not to allow the Doctors to practice on them, and Scottsdale police were called. Dr. Carlotti refused to provide Petta with her records because she had filed a complaint with the AMB. A police officer spoke telephonically with an AMB representative, who informed the officer that DPSG could not withhold Petta's records on that basis. The officer relayed the information to Dr. Carlotti, who agreed to provide the records to Petta by the end of the day.[4] Later that day, with the assistance of law enforcement, Petta received her medical records, which she later maintained had been altered.[5] Also on March 24, at Dr. Carlotti's behest, the police issued Petta a trespass warning. On March 26, 2008, Dr. Carlotti sought an injunction against harassment against Petta, which was issued after an evidentiary hearing.

[¶8] In the next few weeks, Petta began posting statements on various consumer review websites, complaining of her experiences as the Doctors' patient, including alleging the Doctors were not " board certified." She also created her own website complaining she had been Plaintiffs' " victim" and warning the public of the Doctors' alleged incompetence and unethical, unprofessional

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[236 Ariz. 575] behavior.[6] In late April and early May 2008, Plaintiffs sent two letters through counsel to Petta demanding she " remove all defamatory and baseless statements from any and all websites" and advising her that if she did not, Plaintiffs would sue her.

[¶9] On May 7, 2008, Plaintiffs filed a complaint against Petta, alleging she had posted false and defamatory statements about Plaintiffs in her internet postings, omitted facts, and disparaged Plaintiffs while painting them in a false light. Through their complaint, Plaintiffs asserted claims for (1) defamation/libel per se, (2) tortious interference with medical practice, (3) injurious falsehood/business disparagement, and (4) false light invasion of privacy. That same day, Plaintiffs also requested an application for a temporary restraining order (" TRO" ) and preliminary injunction to compel Petta to remove any postings from websites in which Petta had complained about the Doctors' surgical work and other matters and to enjoin her from continuing to post allegedly false statements on those websites. On May 22, 2008, Petta through counsel stipulated to the relief sought in the TRO, and the superior court entered the TRO. Petta removed her comments approximately one month after they had been posted.[7]

[¶10] Petta filed an answer and asserted a counterclaim for medical battery, claiming she had not consented to the scope of the January 2008 alteration to her nose.[8] On January 8, 2010, Plaintiffs filed an amended complaint, adding several of their former employees and the mother of a former employee as defendants.[9] The additional defendants were all eventually dismissed with prejudice, ostensibly as the result of negotiated settlements containing confidentiality clauses.

[¶11] Before trial, Petta moved for summary judgment on each of Plaintiffs' claims. Plaintiffs moved for summary judgment on Petta's counterclaim, arguing Petta had consented to the January 2008 procedure on her nose (the revision nasal tip surgery) and, in any event, Petta could not prove which of the Doctors had performed the surgery. The superior court granted Petta's motions for summary judgment as to Plaintiffs' claims for injurious falsehood/business disparagement and wrongful interference with business relations, and Plaintiffs' motion for summary judgment as to Petta's counterclaim for medical battery.

[¶12] Plaintiffs' remaining claims for defamation and false light invasion of privacy were tried. After a ten-day trial, the jury returned a verdict in favor of Plaintiffs and against Petta in the amount of eleven million dollars in actual or compensatory damages and one million dollars in punitive damages

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[236 Ariz. 576] on Plaintiffs' claims for defamation and false light invasion of privacy.[10] The superior court entered a final judgment on the verdict.

[¶13] Petta moved for a new trial, for judgment as a matter of law, for remittitur, and for relief from judgment. The superior court denied Petta's motions and denied Plaintiffs' request to impose a permanent injunction against Petta, but amended its judgment to correct an accrual of interest calculation. In the amended final judgment, the court found in favor of Plaintiffs in the amount of ...

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