Action from the Superior Court in Maricopa County The
Honorable Patricia A. Starr, Judge No. CV2012-016960.
of the Court of Appeals, Division One No. 1 CA-SA 15-0216
Filed Sept. 8, 2015.
C. Hall, Christopher Robbins (argued), Hill, Hall &
DeCiancio, PLC, Phoenix, Attorneys for Courtney Rene Cramer
Geoffrey M. Trachtenberg (argued), Justin Henry, Levenbaum
Trachtenberg, PLC, Phoenix; Francisco X. Gutierrez, Gutierrez
Law Firm, PC, Phoenix; and Julio M. Zapata, Zapata Law, PLLC,
Phoenix, Attorneys for Tammy Munguia and Francine Bejarano
J. Petersen, Humphrey & Petersen, P.C, Tucson, Attorney
for Amicus Curiae Tucson Defense Bar, Inc.
D. Halpern, Paul J. Giancola, Sarah E. Delaney, Snell &
Wilmer L.L.P., Phoenix, Attorneys for Amicus Curiae Arizona
Medical Association and Mutual Insurance Company of Arizona
Stanley G. Feldman, Haralson, Miller, Pitt, Feldman &
McAnally, P.L.C., Tucson; and David L. Abney, Knapp &
Roberts, P.C, Scottsdale, Attorneys for Amicus Curiae Arizona
Association for Justice/Arizona Trial Lawyers Association
Jeffrey C. Warren, Amanda Heitz, Bowman and Brooke LLP,
Phoenix; and Charles Callahan, Jones, Skelton & Hochuli,
PLC, Phoenix, Attorneys for Amicus Curiae Arizona Association
of Defense Counsel
CHIEF JUSTICE PELANDER authored the opinion of the Court, in
which CHIEF JUSTICE BALES, and JUSTICES BRUTINEL, TIMMER, and
CHIEF JUSTICE PELANDER
Under Arizona's comparative fault regime, "[i]n
assessing percentages of fault" in a personal injury
action, "the trier of fact shall consider the fault of
all persons who contributed to the alleged injury."
A.R.S. § 12-2506(B). In allocating fault, the trier may
consider a nonparty's negligence or fault if the
defendant, pursuant to Arizona Rule of Civil Procedure
26(b)(5), gives notice that "a nonparty was wholly or
partially at fault." Id. In view of these
statutory directives, we today hold that the common law
"original tortfeasor rule" ("OTR") does
not preclude a defendant from alleging and proving, or the
trier of fact from considering and finding, fault of a
nonparty physician who treated the plaintiff for injuries
allegedly sustained from the defendant's tort.
We further hold that under the OTR, an actor who negligently
causes an injury that reasonably necessitates medical
treatment may also be liable for any enhanced harm
proximately resulting from the actor's negligence,
including subsequent injury and related damages negligently
but foreseeably caused by a medical provider. Any such
liability, however, results not from automatically imputing
the medical negligence to the original tortfeasor, but
instead depends on the trier of fact's assessment and
allocation of fault between the parties and nonparties, in
accordance with Arizona's statutes.
In November 2010, a car driven by Courtney Cramer rear- ended
a vehicle in which Tammy Munguia was a passenger. Munguia
complained of headaches that same day and began chiropractic
treatment a few days later. Because of persistent low back
pain, Munguia had an MRI, which revealed several disc
protrusions in her lumbar spine.
Approximately eight months after the accident, John
Ehteshami, M.D., examined Munguia and recommended spinal
fusion surgery to treat her back pain. In September 2011, Dr.
Ehteshami performed that operation, which did not cure