SUPREME COURT OF ARIZONA
En Banc
MARTHA DUNCAN, an individual, ) Arizona Supreme Court
) No. CV-02-0191-PR
Plaintiff-Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 01-0535
SCOTTSDALE MEDICAL IMAGING, LTD., )
an Arizona corporation; ) Maricopa County Superior
HOSPITAL RADIOLOGISTS, LTD., an ) Court
Arizona corporation, ) No. CV 99-019784
)
Defendants-Appellees. )
) O P I N I O N
_____________________________________)
Appeal from the Superior Court of Maricopa County
No. CV 99-019784
The Honorable Sherry Hutt, Judge
REVERSED AND REMANDED
Court of Appeals, Division One
Memorandum Decision
Filed April 30, 2002
VACATED
Anderson, Hurwitz & Harward, P.C. Scottsdale
by Eric C. Anderson
Randy J. Hurwitz
Attorneys for Plaintiff-Appellant
Kent & Wittekind, P.C. Phoenix
by Richard A. Kent
Stephen M. Booth
Attorneys for Defendant-Appellee, Scottsdale
Medical Imaging, Ltd.
Arizona Trial Lawyers Association Phoenix
by Amy G. Langerman
Attorneys for Amicus Curiae, Arizona Trial
Lawyers Association
J O N E S, Chief Justice
INTRODUCTION
¶1 We granted review of two questions raised by petitioner,
Martha Duncan, to determine whether the trial court and court of
appeals erred in dismissing Duncan’s battery claim against
respondent, Scottsdale Medical Imaging (“SMI”): (1)
, and (2) whether section 12-
562(B) of Arizona’s Medical Malpractice Act (“MMA”), Ariz. Rev.
Stat. (“A.R.S.”) §§ 12-561 to -594 (2003), violates Article 18,
Section 6 of the Arizona Constitution as an abrogation of a
patient’s right of action in common law battery to recover damages
for injuries. We answer both questions in the affirmative,
concluding that Duncan has properly stated a claim for battery and
that the MMA’s prohibition of battery claims amounts to an
abrogation of the right of action, in violation of Article 18,
Section 6 of the Arizona Constitution.
¶2 Jurisdiction is grounded in Article 6, Section 5(3) of
the Arizona Constitution. We review the grant of summary judgment
de novo, and view the evidence and all reasonable inferences in the
light most favorable to the party against whom summary judgment was
entered. Wells Fargo Bank v. Ariz. Laborers, Teamsters and Cement
Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13,
38 P.3d 12, 20 (2003). Additionally, we review de novo the lower
courts’ interpretation of statutes and constitutional issues.
-2-
Hohokam Irr. and Drainage Dist. v. Arizona Public Service Co., ___
Ariz. ___, ¶ 5, 64 P.3d 836, 839 (2002).
FACTS
¶3 SMI performed a magnetic resonance imaging (“MRI”)
examination on Duncan on June 19, 1998. The procedure was
performed at Scottsdale Memorial Hospital North. Duncan required
sedation due to a back condition that would not allow her to lie
still for the duration of the MRI procedure. On the day of the
procedure, Duncan spoke by telephone to an SMI nurse. Duncan told
the nurse she would only accept demerol or morphine for sedation
and no other drug. The nurse assured Duncan that only demerol or
morphine would be administered.
¶4 On the day of the procedure, Duncan asked Nurse Gary
Fink, allegedly an employee of SMI, what drug she would be given.
Nurse Fink said it was fentanyl, a synthetic drug similar to
demerol and morphine. Duncan expressly rejected fentanyl, again
stating that she did not want to receive anything but demerol or
morphine. She repeated this request three separate times and asked
Nurse Fink to call her doctor to discuss the medication or
reschedule the MRI. Duncan finally agreed to proceed when Nurse
Fink told her the medication had been changed to morphine. Duncan
later learned that Nurse Fink, contrary to express understanding,
had actually given her fentanyl. The administration of fentanyl
led to serious complications, including severe headache, projectile
vomiting, breathing difficulties, post-traumatic stress disorder,
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and vocal cord dysfunction.
¶5 Duncan sued SMI and Hospital Radiologists, Ltd.
(“defendants”), alleging she informed defendants and/or their
agents that she suffered allergic reactions to certain medications
and that she specifically instructed that she was not to be given
any synthetic drugs. Duncan alleged that defendants and/or their
agents administered fentanyl, through injection, despite assuring
her that the proper medication was being used. Duncan initially
asserted three claims: medical malpractice (count 1), lack of
informed consent (count 2), and battery (count 3).
¶6 After the case was set for trial, Duncan moved to dismiss
counts 1 and 2. SMI did not oppose the motion. It then argued
that Duncan’s remaining battery claim must be classified as a
medical malpractice action under A.R.S. § 12-562(B), and required
presentation of expert testimony pursuant to A.R.S. § 12-563. The
trial court agreed, ruling that Duncan’s claim was for medical
malpractice and that the governing statutes were constitutional as
a “regulation” of common law battery. Duncan sought special action
relief of the trial court’s ruling, but the court of appeals
declined jurisdiction.
¶7 Duncan then moved for summary judgment on the issue of
battery, asking the trial court to allow her claim to proceed
outside the MMA without the need to present expert testimony on the
standard of care. SMI contended the MMA barred the battery claim
and cross-moved for summary judgment, seeking dismissal of the so-
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called malpractice claim because Duncan failed to name an expert
witness to testify that SMI’s treatment fell below standard and
that such failure was the cause of injury. The trial court denied
Duncan’s motion and granted SMI’s motion, holding that evidence of
the applicable standard of care and causation was essential to the
claim. The trial court dismissed count 3, the battery claim,
against all defendants.
¶8 On appeal, Duncan asked the court of appeals to overturn
the judgment dismissing her complaint and again argued that the MMA
violates Article 18, Section 6 of the Arizona Constitution because
it abrogates the common law battery action against a health-care
provider. The court did not reach the constitutional issue, having
concluded the following: first, that the facts upon which Duncan
relied did not give rise to an action for battery because she
consented to the injection; second, that the trial court erred in
characterizing count 3 as a claim for medical malpractice when it
was knowingly intended to be one for battery; and third, that
Duncan had waived any medical malpractice claim she may have had by
failure to have a qualified expert establish the requisite standard
of care. Finally, the court of appeals found that Duncan could not
argue the constitutionality of the MMA since she had no claim for
battery and failed to pursue a negligence claim for medical
malpractice.
DISCUSSION
A. Battery Claim
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¶9 We must first determine whether the administration of a
drug against a patient’s express wishes constitutes a battery under
Arizona law. An actor is subject to liability to another for
battery if the actor intentionally engages in an act that results
in harmful or offensive contact with the person of another. See
Restatement (Second) of Torts §§ 13, 18 (1965) (hereafter
“Restatement”). The law is well established that a health care
provider commits a common law battery on a patient if a medical
procedure is performed without the patient’s consent. See Hales v.
Pittman, 118 Ariz. 305, 310, 576 P.2d 493, 498 (1978). A battery
claim is defeated, however, when consent is given. See Restatement
§§ 13 cmt. d, 18 cmt. f, 892-892D. Thus, the central question in
a case of medical battery is whether the patient has effectively
given his or her consent to the procedure.
1. Informed Consent
¶10 SMI argues that Duncan’s claim is really a “lack of
informed consent” case premised on negligence. Because Duncan
failed to establish the standard of care required by providing
expert testimony, SMI contends Duncan has failed to state a claim
for negligence and the claim should be dismissed. Thus, as a
preliminary matter, we distinguish “lack of consent” in the instant
case from those cases involving “lack of informed consent.”
¶11 Courts generally recognize two theories of liability for
unauthorized medical treatment or therapy rendered by physicians to
their patients: a traditional intentional tort claim for battery
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and a negligence claim for lack of informed consent. See Trogun v.
Fruchtman, 207 N.W.2d 297, 311-12 (Wis. 1973). A lack of informed
consent claim “concerns the duty of the physician to inform his
patient of risks inherent in the surgery or treatment to which he
has consented.” Mink v. Univ. of Chicago, 460 F. Supp. 713, 716
(N.D. Ill. 1978); see also Restatement § 892B cmt. i. As explained
by the California Supreme Court in Cobbs v. Grant, battery and
informed consent theories apply in different situations:
The battery theory should be reserved for those
circumstances when a doctor performs an operation to
which the patient has not consented. When the patient
gives permission to perform one type of treatment and the
doctor performs another, the requisite element of
deliberate intent to deviate from the consent given is
present. However, when the patient consents to certain
treatment and the doctor performs that treatment but an
undisclosed inherent complication with a low probability
occurs, no intentional deviation from the consent given
appears; rather, the doctor in obtaining consent may have
failed to meet his due care duty to disclose pertinent
information. In that situation the action should be
pleaded in negligence.
502 P.2d 1, 8 (Cal. 1972).
¶12 Unfortunately, past decisions by Arizona courts have used
the term “informed consent” inconsistently. In Cathemer v. Hunter
the court of appeals observed the following: “The essence [] of an
informed consent question in a battery case involving a physician
is what did the patient agree with the physician to have done, and
was the ultimate contact by the physician within the scope of the
patient’s consent.” 27 Ariz. App. 780, 783, 558 P.2d 975, 978
(1976) (emphasis added). Subsequently in Hales v. Pittman, this
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court explained that an operation becomes an “informed consent
battery” claim when a doctor fails to disclose information
concerning alternative procedures and the patient does not
understand the nature of the surgical procedure attempted and the
probable results of the operation. 118 Ariz. at 311-12, 576 P.2d
at 499-500.
¶13 The inconsistent use of terminology has blurred the
distinction between “lack of informed consent,” which should be
pled in negligence, and “lack of consent,” which should be pled in
battery. To clear up any confusion, we adopt the reasoning in
Cobbs v. Grant and hold that claims involving lack of consent,
i.e., the doctor’s failure to operate within the limits of the
patient’s consent, may be brought as battery actions. In contrast,
true “informed consent” claims, i.e., those involving the doctor’s
obligation to provide information, must be brought as negligence
actions. As we noted in Hales, “we leave the precise parameters of
the required disclosure for any particular [informed consent] case
to be established by expert testimony in accordance with the
applicable standard of care.” 118 Ariz. at 311 n.4., 576 P.2d at
499 n.4.
¶14 We note that informed consent is not implicated in the
decision in the instant case: Duncan does not claim that SMI
failed to disclose possible risks associated with the
administration of fentanyl. What is implicated is an act which
contravenes the consent given. Therefore, we turn to the question
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whether, taking the facts in the light most favorable to Duncan,
SMI and/or its agents performed a procedure to which Duncan did not
consent.1
2. Limited Consent
¶15 The court of appeals found that Duncan’s battery claim
should fail because she consented to receive the injection. We
disagree. Her general authorization of an injection does not
defeat her battery claim because her consent was limited to certain
drugs. Duncan explicitly conditioned her consent on the use of
morphine or demerol and rejected the use of any other drug.
Conduct involving the use of a sedative other than morphine or
demerol, contrary to explicit instruction and understanding, cannot
be viewed as consensual.
¶16 The Restatement requires that consent, to be effective,
must be “to the particular conduct, or substantially the same
conduct.” Restatement § 892A (2)(b). The terms and reasonable
implications of the consent given determine the scope of the
particular conduct covered. Restatement § 892A cmt. d. The
“scope” of consent is an issue for the trier of fact to determine.
1
At oral argument, SMI contended that it could not be held
liable in this case even if Nurse Fink committed a battery because
Nurse Fink is an employee of Scottsdale Hospital, not SMI. This is
an issue that will depend on various factual determinations to be
made in the trial court. Additionally, we do not decide the legal
question whether SMI may be held liable for Nurse Fink’s alleged
intentional tort. The parties have not yet developed the requisite
factual record on either issue because the lower courts dismissed
the action on unrelated legal grounds.
-9-
Id.; see also Cathemer v. Hunter, 27 Ariz. App. at 785, 558 P.2d at
980 (holding a jury question existed as to whether a patient
consented to an operation and whether the operation received was
“substantially similar” to the operation to which the patient
consented so as to be within the scope of the consent).
“[A]nything greater or different than the procedure consented to
becomes a battery.” Hales, 118 Ariz. at 310, 576 P.2d at 498.
¶17 The parties in this case characterize differently the
“particular conduct” to which Duncan consented. Duncan contends
she gave limited consent for an injection of the painkillers
morphine or demerol, but that she rejected fentanyl. SMI claims
Duncan consented to the insertion of a catheter through which pain
medication was to be administered, and therefore the nature of the
procedure was the same no matter which drug was used. SMI’s
position is untenable, given the record before us.
¶18 The relevant inquiry here is not whether the patient
consented to an injection; the issue is whether the patient
consented to receive the specific drug that was administered.
Duncan could have given broad consent to the administration of any
painkiller, but she gave specific instructions that she would
accept only morphine or demerol and nothing else. We hold that
when a patient gives limited or conditional consent, a health care
provider has committed a battery if the evidence shows the provider
acted with willful disregard of the consent given. See Ashcraft v.
King, 278 Cal. Rptr. 900, 904 (Cal. Ct. App. 1991) (surgeon
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committed battery when patient’s consent to operation was
conditioned on use of family-donated blood only, and surgeon
intentionally violated condition). At oral argument, SMI admitted
that Duncan presented a viable battery claim because Nurse Fink
injected her with a painkiller which she had expressly rejected.
3. Consent Obtained by Misrepresentation
¶19 Even assuming arguendo that there was consent to this
procedure, there would remain the question of whether that consent
was obtained by misrepresentation and thus invalid. The court of
appeals relied on comment f to Restatement § 18 and found that
Duncan’s consent was valid, even if obtained by the nurse’s
misrepresentation. The court found that Duncan’s only remedy was
an action for the conduct of the person who procured her consent.
The court of appeals erred in its application of the Restatement.
¶20 According to Restatement § 892B(2), consent is
ineffective if obtained by another’s misrepresentation:
If the person consenting to the conduct of another is
induced to consent by a substantial mistake concerning
the nature of the invasion of his interests or the extent
of the harm to be expected from it and the mistake is
known to the other or is induced by the other’s
misrepresentation, the consent is not effective for the
unexpected invasion or harm.
(Emphasis added.) So long as a patient’s mistake concerning the
nature of the invasion was induced by the health care provider’s
misrepresentation, the Restatement provides that a patient may
either bring an action against the health care provider for
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misrepresentation or “treat the consent as invalid and maintain any
tort action open to [her] in the absence of consent.” Restatement
§ 892B cmt. h. Accordingly, we hold that if a patient’s consent is
obtained by a health care provider’s fraud or misrepresentation, a
cause of action for battery is appropriate. See 6 Am. Jur. 2d
Assault and Battery § 127 (1999).
¶21 On this record, Duncan’s case falls squarely within
Restatement § 892B because the alleged facts, taken in the most
favorable light, support her claim that SMI and its agents obtained
consent for the injection by express misrepresentation. Duncan
told Nurse Fink on three separate occasions that she would accept
only morphine or demerol. Nurse Fink told Duncan the medication
had been changed to morphine and then gave her fentanyl regardless.
Duncan’s consent was thus ineffective because Nurse Fink’s alleged
misrepresentation led Duncan to believe she would receive a
morphine shot, not a fentanyl shot.
¶22 Further, the scenario addressed in comment f to
Restatement § 18, on which the court of appeals relied, is
distinguishable from the instant case because Duncan was not fully
aware of the particular character of the contact. Section 18,
comment f reads, in part:
The rule stated in § 892B, that a consent to a contact
the particular character of which the other is fully
aware, is not made ineffective by reason of the
fraudulent misrepresentations which induce the other to
give the consent, is of peculiar importance in
determining the existence of liability for a merely
offensive contact. Under the rule stated in that Section,
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the consent, though fraudulently procured, prevents the
infliction of the contact from being itself a wrong and
as such actionable. The other's only possible remedy is
an action based upon the fraudulent and, therefore,
tortious character of the conduct of the actor by which
he has procured the consent.
(Emphasis added.) This comment addresses only those situations in
which a patient is “fully aware” of the nature of an invasion and
agrees to it.
¶23 In contrast, comment h to Restatement § 892B addresses
those situations in which the patient is mistaken about the nature
of the invasion and the mistake is induced by a health care
provider’s misrepresentation. Nurse Fink allegedly told Duncan she
would receive a morphine injection, when in fact he knew it to be
fentanyl. Duncan, unaware of the true nature of the invasion,
agreed to proceed based on Nurse Fink’s misrepresentation. This
provides the elements of a claim for battery.
¶24 SMI contends a health care provider must be aware that
the patient made a substantial mistake as to the nature of the
invasion for the consent to be ineffective. But the Restatement
test is written in the disjunctive: the patient’s mistake regarding
the nature of the invasion must either be known to the health care
provider or must be induced by the provider’s misrepresentation.
See Restatement § 892B(2). Moreover, § 892B, comment h, which
specifically addresses misrepresentation, provides as follows:
“The mistake having been produced by the misrepresentation of the
actor[,] he will normally be aware of its existence, but his
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knowledge of the mistake is not necessary.” (Emphasis added.)
Here, Fink allegedly induced Duncan to consent by misrepresenting
that the painkiller to be used was morphine. Having met one prong
of the test, Duncan is not required to establish that Fink knew of
her mistaken belief regarding the nature of the injection to prove
fraudulently obtained consent.
¶25 SMI further contends that under Restatement § 892B(2)
Duncan must prove that SMI or its agents knew or should have known
that she made a substantial mistake as to the extent of harm
reasonably to be expected from administration of fentanyl. Here
again, the Restatement is worded in the disjunctive: A patient’s
consent is ineffective so long as she makes a “substantial mistake
concerning the nature of the invasion of [her] interests or the
extent of harm to be expected from it.” Restatement § 892B(2)
(emphasis added). Duncan need not prove that SMI knew or should
have known she was mistaken about the extent of harm to be expected
from the injection because she has alleged her mistake was induced
by Nurse Fink’s misrepresentation.
¶26 Duncan’s evidence supports the claim for battery because
she alleges SMI and/or its agents administered fentanyl without
consent. We now address whether she may bring that cause of action
under Arizona law.
B. Article 18, Section 6 and the Medical Malpractice Act
¶27 The Medical Malpractice Act prohibits a patient from
bringing an action for injury or death against a licensed health
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care provider based on assault or battery. A.R.S. § 12-562(B).
Duncan argues that the MMA unconstitutionally prohibits bringing a
battery action because such actions are protected by Article 18,
Section 6 of the Arizona Constitution, the anti-abrogation clause,
which provides: “The right of action to recover damages for
injuries shall never be abrogated, and the amount recovered shall
not be subject to any statutory limitation.”
¶28 We perform a two-part analysis of claims arguably
protected under the anti-abrogation clause. First, we determine
whether Article 18, Section 6 protects the right of action at
issue. See Cronin v. Sheldon, 195 Ariz. 531, 538, ¶¶ 34, 39, 991
P.2d 231, 238 (1999) (anti-abrogation clause is not implicated
where the right “originates exclusively within the statute” and
“cannot trace its antecedents to a common law right of action”).
The anti-abrogation clause “prevents abrogation of all common law
actions for negligence, intentional torts, strict liability,
defamation, and other actions in tort which trace origins to the
common law.” Id. at 538, ¶ 35, 991 P.2d at 238 (emphasis added).
Battery is an intentional tort whose origins are the common law.
See Mills v. Rogers, 457 U.S. 291, 295 n. 4 (1982) (“Under the
common law of torts, the right to refuse any medical treatment
emerged from the doctrines of trespass and battery, which were
applied to unauthorized touchings by a physician.”). Accordingly,
the protection of Article 18, Section 6 extends to the right of
action asserted in the case at bar.
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¶29 Second, we determine whether the MMA simply regulates a
patient’s right of action to recover damages for injuries for
battery or completely abrogates that right. Article 18, Section 6
precludes abrogation but not regulation. Cronin, 195 Ariz. at 538,
¶ 34, 991 P.2d at 238. We apply the “reasonable election” test to
distinguish between regulation and abrogation. See Barrio v. San
Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 106, 692
P.2d 280, 285 (1984) (statute that required a minor who was injured
before reaching the age of seven to sue for such injuries before
reaching the age of ten did not allow the minor a reasonable choice
of alternatives); Ruth v. Indus. Comm’n, 107 Ariz. 572, 575, 490
P.2d 828, 831 (1971) (1965 workers’ compensation statute provided
an employee with an election because it “furnishe[d] an alternative
for the employee which he [could] voluntarily accept or reject”);
Moseley v. Lily Ice Cream Co., 38 Ariz. 417, 421, 300 P. 958, 959
(1931) (1928 workers’ compensation law was constitutional because
it provided a reasonable election between statutory remedy or
common law right of action).
¶30 Under the “reasonable election” test, the legislature may
regulate a right of action protected by Article 18, Section 6, but
it must “leave[] a claimant reasonable alternatives or choices
which will enable him or her to bring the action. It may not,
under the guise of ‘regulation,’ so affect the fundamental right to
sue for damages as to effectively deprive the claimant of the
ability to bring the action.” Barrio, 143 Ariz. at 106, 692 P.2d
-16-
at 285; see also Hazine v. Montgomery Elevator Co., 176 Ariz. 340,
342, 861 P.2d 625, 628 (1993).
¶31 SMI contends that the MMA offers a reasonable choice of
alternatives because it does no more than limit the theories of
liability a patient may use to seek recovery. We disagree because
a regulation that limits the theories of liability under which a
plaintiff may sue is nonetheless an abrogation when the
“alternative” theory of recovery protects different interests.
Hazine, 176 Ariz. at 342, 861 P.2d at 628. In Hazine, we held that
the right to sue in negligence or express warranty was not a
reasonable alternative to a products liability action because the
theories of recovery under the former “proved inadequate to protect
injured users and consumers.” Id. at 343, 861 P.2d at 629 (citing
Rubino v. De Fretias, 638 F. Supp. 182 (D. Ariz. 1986)).
¶32 Rubino was a suit in which the federal district court
construed Arizona law. There, the patient sued for battery against
her physician for removing her vaccination mark without consent.
The court concluded that § 12-562(B) unconstitutionally abrogated
a patient’s right to sue in battery, notwithstanding the patient’s
protected right to sue for negligence. Rubino, 638 F. Supp. at
185. The court noted “battery and negligence (malpractice)
constitute separate causes of action,” each protecting different
interests:
Each theory of liability preserves a distinct societal
interest in the physician-patient relationship. The
battery theory sustains a patient's right of self-
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determination; the negligence theory recognizes a
physician's obligation to provide reasonable disclosure
of the available choices with respect to the proposed
procedures and the dangers inherently and potentially
involved in each . . . . In limiting actions against
medical health providers to medical malpractice actions
and prohibiting an action based upon assault and battery,
the legislature has not merely regulated the right to sue
but abrogated the patient's basic common law right to
enforce his right of self-determination, in violation of
Article 2, Section 31 and Article 18, Section 6 of the
Arizona Constitution.
Id. at 185-186.
¶33 A statutory regulation that completely abolishes a right
of action is an abrogation. Ruth, 107 Ariz. at 575, 490 P.2d at
831. The express language of the MMA abolishes the right to bring
an action in battery against a licensed health care provider, see
A.R.S. § 12-562(B), and also mandates that medical malpractice
actions be limited to those listed in § 12-561. Additionally, any
action brought under the MMA requires proof of elements not present
in a common law action for battery, including duty, breach, and
causation, see A.R.S. § 12-563, all of which are elements required
in negligence actions, and have no application in the field of
intentional torts. Thus, the MMA’s requirement that a claimant
prove multiple additional elements dramatically transforms the
nature of the battery claim. While the MMA leaves in place notions
of liability arising in negligence, it provides no alternative to
a simple action in battery.2 We hold that § 12-562(B) amounts to
2
We note an apparent contradiction in the statute. On one
hand, § 12-562(B) fully eliminates battery actions against health
care providers; on the other, § 12-561(2) provides that medical
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an unconstitutional abrogation of a patient’s right to sue in
battery, notwithstanding the plaintiff’s ability to sue under other
theories of liability.
¶34 The reasoning in Rubino, supra, is consistent with our
view. As the Rubino court noted, “whether an action is founded in
battery or negligence is not merely a matter of evidence and
procedure. The theory of liability may very well determine what
injury has resulted from the wrong committed.” 638 F. Supp. at
185. Here, Duncan’s injury includes a violation of her right of
self-determination, specifically the right to determine which
medications she would accept or reject. As such, Duncan should be
allowed to proceed with a common law battery action outside the
evidentiary and other requirements of the MMA.
CONCLUSION
¶35 Duncan’s complaint states a claim for battery. While
malpractice actions may be maintained against the same providers
“for injury or death . . . based upon . . . misconduct . . . in the
rendering of . . . medical services . . . without express or
implied consent.” Thus, while § 12-562(B) eliminates the tort,
§ 12-561(2) purports to regulate it. We cannot determine with
certainty what the legislature intended, but if the intent was to
eliminate, then, as indicated, an abrogation most certainly has
occurred. But even if the intent was to regulate, it was done in
a manner that, for an action to succeed, elements unique to a
negligence claim, i.e., duty, breach, and causation, would have to
be proven as well. This is not a reasonable alternative to simple
battery. We thus conclude that the common law tort of battery has
been subjected either to complete elimination or to such radical
modification that the end result is virtually the same -– battery
as known at common law would no longer exist. This leads
inevitably to the more plausible conclusion that an abrogation has
occurred in violation of Article 18, Section 6.
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A.R.S. § 12-562(B) precludes such a claim, we hold this subsection
of the statute unconstitutional under Article 18, Section 6 of the
Arizona Constitution as an abrogation of the right to bring an
action in battery to recover damages for injuries. We make no
determination as to the responsibility of SMI for the actions of
Nurse Fink as that question is one to be determined by the trial
court on a fully developed factual record.
¶36 We vacate the court of appeals’ memorandum decision,
reverse the judgment of the trial court, and remand the case to the
trial court for further proceedings consistent with this opinion.
___________________________________
Charles E. Jones, Chief Justice
CONCURRING:
____________________________________
Ruth V. McGregor, Vice Chief Justice
____________________________________
Michael D. Ryan, Justice
____________________________________
Robert J. Corcoran, Justice (Retired)*
____________________________________
Joseph H. Howard, Judge*
* Due to a vacancy and a recusal on this court at the
time this case was decided, the Honorable Robert J.
Corcoran, Justice (retired) and the Honorable Joseph H.
Howard, a judge of the Arizona Court of Appeals, Division
Two, were designated to participate in this case under
Article 6, Section 3 of the Arizona Constitution.
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