Yanez v. Kundavaram
1 CA-CV 20-0303
| Ariz. Ct. App. | Aug 10, 2021Background
- During a robotic prostatectomy, a surgical assistant (Matthew Tremayne) knocked scissors off the tray and later failed to remove a suture needle; the needle was left in plaintiff Carlos Yanez’s pelvis and a second surgery removed it four days later.
- Two counts of instruments were performed; one count initially mismatched but after a third count the scrub tech’s original count was reported accurate, and the surgeon (Dr. Chandan Kundavaram) closed.
- Yanez sued Dr. Kundavaram (and the hospital Abrazo; the hospital was later settled with), tried the case only against Dr. Kundavaram, and the jury returned a defense verdict.
- The superior court entered judgment for Dr. Kundavaram and taxed costs of $13,146.87, which included $11,800 paid to two testifying experts.
- Yanez moved for a new trial arguing the court should have given a respondeat superior instruction and that the damages instruction improperly omitted the value of the second surgery/hospitalization.
- On appeal the court affirmed the verdict, vacated the $11,800 expert-fee portion of taxed costs, and remanded to recalculate taxable costs; it denied sanctions requested by Dr. Kundavaram.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a respondeat superior instruction should have been given | Yanez: Tremayne acted as Dr. Kundavaram’s agent; instruction required | Kundavaram: Tremayne was an independent contractor; principal only liable for own acts; Tremayne not sued | Denied — no agency shown; testimony showed Tremayne worked independently; comparative-fault instructions sufficient |
| Whether jury should have been instructed that Yanez could recover the reasonable value of the second surgery/hospitalization (not billed) | Yanez: Entitled to recover reasonable value of all medical services rendered, even if not billed | Kundavaram: Motion in limine excluded evidence because Yanez was not charged; therefore not recoverable at trial | Not reached on merits — harmless if jury finds no liability; no reversal on this ground |
| Whether testifying expert witness fees are taxable costs under Rule 54 | Yanez: Such fees are not taxable costs under statute and Rule 54 post-2017 | Kundavaram: Historically Rule 54 allowed reasonable expert fees in malpractice cases; experts are necessary in malpractice defense | Vacated as erroneous — 2017 amendment removed the malpractice carve-out; expert fees a party pays own testifying experts are not taxable costs; remand to reduce costs by $11,800 |
| Request for sanctions under ARCAP for alleged briefing violations | Yanez: Opposed sanctions; appealed timely | Kundavaram: Asked for ARCAP 25 sanctions and dismissal for alleged violations | Denied — court declined to impose sanctions |
Key Cases Cited
- Strawberry Water Co. v. Paulsen, 220 Ariz. 401 (App. 2008) (standard for when a requested jury instruction must be given)
- DeMontiney v. Desert Manor Convalescent Ctr., 144 Ariz. 6 (1985) (criteria for giving requested jury instructions)
- Thompson v. Better-Bilt Aluminum Prods. Co., 187 Ariz. 121 (App. 1996) (review instructions as a whole; verdict disturbed only if substantial doubt)
- Kopp v. Physician Group of Ariz., 244 Ariz. 439 (2018) (respondeat superior applies to employer/employee; distinguishes independent contractors)
- Wiggs v. City of Phoenix, 198 Ariz. 367 (2000) (distinguishing employees from independent contractors; control element)
- Lopez v. Safeway Stores, Inc., 212 Ariz. 198 (2006) (reasonable medical expenses recoverable based on value of services, including write-offs)
- Medlyn v. Kimble, 106 Ariz. 66 (1970) (error in damages instruction is harmless when defendant found not liable)
- Schritter v. State Farm Mut. Auto. Ins. Co., 201 Ariz. 391 (2001) (litigation expenses recoverable only with statutory authorization)
- State v. McDonald, 88 Ariz. 1 (1960) (no statutory allowance for expert witness fees as costs)
- RS Indus., Inc. v. Candrian, 240 Ariz. 132 (2016) (fees a party pays its own expert are not recoverable as costs)
- Foster ex rel. Foster v. Weir, 212 Ariz. 193 (2006) (pre-2017 Rule 54 allowed reasonable expert witness fees in medical-malpractice cases)
- Seisinger v. Siebel, 220 Ariz. 85 (2009) (plaintiff’s obligation to present expert evidence in malpractice suits)
- Ryan v. S.F. Peaks Trucking Co., 228 Ariz. 42 (2011) (comparative-fault allocation instructions)