Kopp v. Physicians, 1 CA-CV 16-0227

Plaintiffs (Kopp, Ornelas, Gonzalez) underwent bariatric surgery performed by Dr. Eric Schlesinger at Tempe St. Luke’s Hospital and sued Schlesinger and hospital/management entities for malpractice and for negligent credentialing/hiring/supervision.
Plaintiffs settled with Dr. Schlesinger and dismissed all claims against him with prejudice; the settlement expressly preserved independent claims against the hospital defendants but barred vicarious/respondeat superior claims based on Schlesinger’s acts.
Plaintiffs’ counsel and Schlesinger’s counsel stipulated to dismiss claims against Schlesinger and any co-defendant vicarious-liability claims; the court entered dismissal of Schlesinger.
Defendants moved to dismiss negligent credentialing/hiring/supervision counts as derivative of Schlesinger’s negligence under Torres and related authority; plaintiffs argued those counts were independent.
The superior court dismissed the negligent credentialing/hiring/supervision claims with prejudice as derivative; later the order was converted into a Rule 54(b) partial final judgment. Plaintiffs appealed; the Court of Appeals affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether negligent credentialing/hiring/supervision claims are barred by plaintiffs’ settlement with Dr. Schlesinger	The credentialing/hiring/supervision claims are independent of Schlesinger’s malpractice and therefore survive the settlement	Those claims are derivative—premised on Schlesinger’s alleged negligence—and are barred by the settlement and Torres	Claims of negligent credentialing, hiring, and supervision were derivative of Schlesinger’s negligence and dismissed with prejudice
Whether any independent negligence claims against the hospital defendants were also dismissed	Plaintiffs contend the court erroneously eliminated independent negligence claims	Defendants maintain only derivative (vicarious) claims were barred; independent claims remain	The court only dismissed derivative/vicarious claims; independent negligence claims (if any) remain pending
Whether dismissal consideration could include materials outside the pleadings (i.e., treated as summary judgment)	Plaintiffs argued procedural error or ambiguity about Rule 12 vs. summary judgment	Defendants pointed to exhibits and supporting materials justifying summary-judgment treatment	Court and appellate review treated the motion as a motion for summary judgment under Rule 12(d); dismissal was reviewed accordingly and affirmed

Torres v. Kennecott Copper Corp., 15 Ariz. App. 272, 488 P.2d 477 (holding a plaintiff’s judgment against an agent bars a vicarious-liability claim against the principal)
Jamerson v. Quintero, 233 Ariz. 389, 313 P.3d 532 (settlement or judgment for agent bars vicarious liability claim against principal)
Law v. Verde Valley Med. Ctr., 217 Ariz. 92, 170 P.3d 701 (UCATA did not change vicarious-liability principles)
DeGraff v. Smith, 62 Ariz. 261, 157 P.2d 342 (historical authority on related principles)