Unpublished Disposition, 872 F.2d 429 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 872 F.2d 429 (9th Cir. 1989)

No. 87-2960.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and BEEZER, Circuit Judges, and SAMUEL P. KING, Senior District Judge* .

MEMORANDUM** 

Billy John Morris sued Parker Memorial Hospital and Drs. Scott, Marchese, and Rasmus, for the loss of his left leg. His complaint alleged malpractice against each of the doctors, and liability of the hospital (1) for nursing negligence, and (2) for negligent admission and supervision of Dr. Scott, and (3) vicariously as principal of each of the doctors.

The hospital's liability was circumscribed by two summary judgments and a directed verdict. By the first summary judgment, the trial judge gave judgment for the hospital on the issue of nursing negligence. By the second summary judgment, the trial judge gave judgment for the hospital on the issues of negligent admission and supervision of Dr. Scott, and as alleged principal of Dr. Scott. At the trial and after the plaintiff had rested, the trial judge directed a verdict for the hospital on the issue of its vicarious liability for Dr. Rasmus. The trial judge also directed a verdict against Dr. Scott on the issue of his liability. On the remaining issues, the jury found for the hospital and Drs. Marchese and Rasmus, and assessed damages against Dr. Scott in the amount of $800,000.

Plaintiff appeals the two summary judgments in favor of the hospital and subsequent motions for reconsideration and the trial judgments in favor of the hospital and Drs. Marchese and Rasmus. We AFFIRM the trial judgments in favor of Drs. Marchese and Rasmus and the hospital, and REVERSE the summary judgments in favor of the hospital on the issues of (1) nursing negligence, and (2) negligent admission and supervision of Dr. Scott.

Plaintiff cites three evidentiary rulings by the trial judge and closing argument by one of the defense counsel as reasons for a new trial.

No objection was made at the time of the closing argument which plaintiff now cites as error. We have nonetheless examined the questioned remarks in context and conclude that they do not rise to the level of reversible error.

The three evidentiary rulings are reviewed for abuse of discretion. In each case, there were good and sufficient reasons for the judge's rulings.

Our review of the record below reveals significant issues of fact on material matters relating to the hospital's liability for nursing negligence and for negligent admission and supervision of Dr. Scott. While the plaintiff's submissions contained little direct evidence on these issues, the non-moving party to a motion for summary judgment may rely also on reasonable inferences in his favor. The evidence that was produced could be found by a jury to support a finding of negligence on either or both of these issues.

Plaintiff presented the deposition of Dr. Ismar Cintora, who testified about the standard of care for nursing staff monitoring the condition of a patient such as plaintiff to the effect that the nursing staff should have monitored plaintiff's pulse at specific intervals. The fact Dr. Cintora also testified that the nurses told the doctors about conditions they did detect does not detract from the significance to be attached to the testimony that the nurses should have monitored the pulse: the very heart of plaintiff's negligence claim was what the nurses failed to detect and accordingly could not report. Under Thompson v. Sun City Comm. Hosp., Inc., 688 P.2d 605 (Ariz.1984), causation will go to the jury if plaintiff can establish that defendant's negligence increased the risk of harm. Dr. Cintora's testimony was clearly sufficient, when construed in the light most favorable to plaintiff, to raise a material issue of fact precluding summary judgment.

B. NEGLIGENT RETENTION AND SUPERVISION OF DR. SCOTT

Plaintiff's proffer of evidence that would be introduced at trial was sufficient to raise a material issue of fact concerning the causal connection between the hospital's failure to act in the fact of its knowledge of Dr. Scott's drug addiction and the injury to plaintiff. "All that is required in negligence cases is for the plaintiff to present probable facts from which negligence and causal relations may be reasonably inferred." Purcell v. Zimbelman, 500 P.2d 335, 342 (Ariz.App.1972). Plaintiff's witnesses would testify at trial that Dr. Scott was either under the influence of Demerol or suffering from withdrawal at the time he was summoned by the Hospital to care for plaintiff. The inference that Dr. Scott's abilities were impaired, and that this impairment increased the risk of harm to plaintiff, is reasonable, construing the evidence in the light most favorable to plaintiff. Summary judgment on this issue was improper.

REVERSED IN PART AND AFFIRMED IN PART. REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

 *

The Honorable Samuel P. King, Senior U.S. District Judge for the District of Hawaii, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3