AZ: no exam or tests before appendectomy: pt. bled internally post-op--death resulted.

CASE FACTS: Late in the evening on September 23, 2002, Dr. Devin Gray performed an appendectomy on Richard Cuppy at Banner Healthcare, d/b/a Mesa Lutheran Hospital. The patient died two days later. The patient's surviving spouse brought suit against the hospital, Dr. Gray, and his wife, Kathy Gray, d/b/a Surgical Professionals, Inc. The Cuppys alleged medical negligence against Dr. Gray and Lutheran Hospital. Prior to trial, the Cuppys settled their claim against the hospital The trial court dismissed the claims against the hospital, with prejudice. At trial, the Cuppys argued that Dr. Gray negligently proceeded with the surgery without performing proper examinations and tests. They also alleged that when Dr. Gray completed the surgery, he negligently overlooked the fact that the patient was bleeding internally. The Cuppys further alleged that Dr. Gray acted negligently by failing to respond promptly after the hospital contacted him about the patient's deteriorating post-operative condition, and that he negligently performed a second surgery. Dr. Gray maintained that the patient's death was not caused by the initial surgery and that a hospital nurse negligently failed to promptly notify him when the patient's condition deteriorated the next night. At the conclusion of the trial, the Cuppys moved for judgment as a matter of law (JMOL) on Dr. Gray's claim that he was a non-party at fault. The Cuppys argued that Dr. Gray failed to present sufficient evidence to allow a reasonable jury to determine that any hospital employee's negligence was the proximate cause of the patient's death. The trial court granted the motion with respect to all hospital personnel except for that of Nurse Lori Parr. After a 14-day trial, the jury returned a verdict attributing 0% fault to Dr. Gray and 100% fault to the hospital. The Cuppys moved for a new trial arguing that the trial court had made erroneous evidentiary rulings and that the verdict was the result of passion or prejudice and not justified by the evidence. They also renewed their motion for JMOL, arguing that Dr. Gray had not presented any evidence that Nurse Parr's violation of the standard of care caused the patient's death. The court granted the Cuppys' motion for a new trial, ruling that it had committed error. The court granted the Cuppys' renewed motion for JMOL. Dr. Gray appealed.

COURT'S OPINION: The Court of Appeals of Arizona affirmed the judgment of the trial court in favor of the Cuppys. The Court held, inter alia, that most significantly, Dr. Gray pointed to no medical expert testimony to a reasonable degree of medical certainty, would have saved the patient's life. Cuppy v. Gray, 2008 AZAPPI 1CA-CV 06-0632 (02/02/2008)--AZ

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