Caravetta v. Banner
1 CA-CV 16-0101
| Ariz. Ct. App. | Apr 25, 2017Background
- In Jan 2015 Caravetta sued Banner Health alleging a nurse "stabbed" her with a medication-filled syringe during a Jan 2013 admission, causing bleeding and a large bruise. She alleged the nurse and treating physician failed to properly treat the injury and the nurse gave a second injection.
- Banner moved to designate the case as medical malpractice and to require a preliminary expert opinion affidavit under A.R.S. § 12-2603; the superior court agreed and ordered Caravetta to serve the affidavit by a deadline.
- Caravetta argued her claim was an assault/intentional tort and also asserted an amended claim under the Adult Protective Services Act for failure to photograph injuries; she did not timely serve the § 12-2603 affidavit.
- Banner moved to dismiss for failure to comply with the court’s order; the superior court dismissed the complaint without prejudice. Caravetta appealed.
- The Court of Appeals reviewed de novo whether the claim was a medical malpractice action requiring a preliminary expert affidavit and whether dismissal under § 12-2603(F) was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint alleges a medical malpractice claim subject to A.R.S. § 12-2603 | Caravetta: the complaint states an assault/intentional tort (nurse "stabbed" her); not medical malpractice | Banner: allegations concern nursing/medical services and thus fall within MMA definitions | Court: complaint alleges conduct within scope of health-care/nursing services; characterized as medical malpractice, not battery |
| Whether consent defeats an intentional-tort (battery) theory | Caravetta: styled complaint as battery/assault; insists she was assaulted | Banner: factual allegations show Caravetta consented to medication administration (including a second injection) | Court: consent apparent; plaintiff failed to state a battery claim; lack of informed consent claim treated as malpractice |
| Whether dismissal for failure to serve preliminary expert affidavit was proper | Caravetta: did not comply; argued case was not subject to § 12-2603 (assault) | Banner: court ordered affidavit and dismissal follows § 12-2603(F) when claimant fails to file after order | Court: because claim is medical-malpractice, dismissal without prejudice under § 12-2603(F) was proper |
| Whether amended APSA claim affected disposition | Caravetta: added APSA claim re: failure to photograph injuries | Banner: primary dispute remained whether original complaint pleaded malpractice; APSA claim not properly pleaded or fatal | Court: APSA claim failed on asserted grounds and the case proceeded on whether original complaint was medical-malpractice; dismissal stands |
Key Cases Cited
- Garza v. Swift Transp. Co., 222 Ariz. 281 (clarifies when a dismissal without prejudice is appealable if it effectively decides the action)
- Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306 (distinguishes battery from negligence/informed-consent claims against health-care providers)
- Gorney v. Meaney, 214 Ariz. 226 (explains treatment of claims labeled "battery" that substantively allege lack of informed consent)
- Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317 (standard for reviewing application of § 12-2603 and accepting complaint facts as true)
- State v. Holle, 240 Ariz. 300 (recognizes consent as a defense to assaults by health-care providers)
- In re Aubuchon, 233 Ariz. 62 (appellate waiver rules: arguments unsupported by law and fact are waived)