Duncan v. Scottsdale Medical Imaging, Ltd.

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.

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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.

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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

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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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