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Cramer v. Starr

Supreme Court of Arizona

July 18, 2016

Courtney Rene Cramer, Petitioner,
v.
Hon. Patricia Ann Starr, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Tammy Munguia, individually, and Francine Bejarano, individually, Real Parties in Interest.

         Special Action from the Superior Court in Maricopa County The Honorable Patricia A. Starr, Judge No. CV2012-016960.

         Order of the Court of Appeals, Division One No. 1 CA-SA 15-0216 Filed Sept. 8, 2015.

          Thomas 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

          Andrew J. Petersen, Humphrey & Petersen, P.C, Tucson, Attorney for Amicus Curiae Tucson Defense Bar, Inc.

          Barry 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

          VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, and JUSTICES BRUTINEL, TIMMER, and BOLICK joined.

          OPINION

          VICE CHIEF JUSTICE PELANDER

         ¶1 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.

         ¶2 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.

         I.

         ¶3 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.

         ¶4 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 ...


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