Musa v. C. K. Adrian, M.D.

636 P.2d 104, 130 Ariz. 326, 1980 Ariz. App. LEXIS 724

• Court: Court of Appeals of Arizona
• Decided: December 23, 1980
• Docket: No. 1 CA-CIV 4434
• Status: Published

Opinions

OPINION

EUBANK, Judge.

The appellants have appealed from a “Partial Final Judgment” granted appellees on April 24, 1978, pursuant to Rules 56(c) and 56(d)¹, Rules of Civil Procedure, 16 A.R.S. The judgment includes Rule 54(b)² id. language that there is no just reason for delay in the entry of judgment.

The trial court made findings of fact and conclusions of law in support of the partial summary judgment as follows:

FINDINGS OF FACTS

1. The plaintiffs’ [appellants] cause of action arose on August 12-16, 1975.

2. The Medical Malpractice Act, A.R.S. §§ 12-561 et seq. was effective February 26, 1976.

3. Plaintiffs filed suit on August 12, 1977.

CONCLUSIONS OF LAW

1. The Medical Malpractice Act, A.R.S. §§ 12-561 et seq. is applicable to plaintiffs’ cause of action. Specifically:

a. The action will be submitted to a Medical Liability Review Panel pursuant to A.R.S. § 12-567 and the Panel’s decision is admissible and parties may comment thereon at trial (A.R.S. § 12-567(M)).

b. Evidence may be introduced at trial regarding the collateral benefits received by the plaintiffs pursuant to A.R.S. § 12-565.

c. That the appropriate standard of care, in this action, is the standard of care outlined in A.R.S. § 12-563(1).

2. That defendants [appellees] are granted summary judgment on that portion of paragraph 11 of plaintiffs’ complaint which alleges claims for assault and battery, oral contract, and lack of informed consent, these claims being prohibited by A.R.S. §§ 12-562(B), 12-562(C), 12-561(2).

The facts found by the court are not disputed.

Paragraph 11 of the appellants’ complaint, referred to in the Conclusions of Law, reads:

The conduct of Dr. Adrian, on behalf of himself and the other Adrian-related Defendants, constituted medical negligence, battery, breach of contract for medical treatment without such untoward complications, and created a condition through improper medical and surgical care and treatment which itself justifies a finding of negligence, through operation of the doctrine of res ipsa loquitur, and Dr. Adrian further failed to secure the informed consent of the Musas relative to the procedure in question, misrepresenting his competence and ability as a surgeon and failing to adequately warn and to disclose the risks of harm to which the Musas subjected themselves at the hands of Dr. Adrian. Appropriate exemplary damages should be assessed against all Defendants.

The trial court ordered judgment as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the plaintiffs’ [appellants] motion for summary judgment is denied and that defendants [appellees], C. K. Adrian, M.D., et al., have partial final judgment against the plaintiffs to the effect that the 1976 Arizona Medical Malpractice Act is applicable to plaintiffs’ action in this cause, specifically as to the provision of said Act pertaining to the Medical Review Panel, collateral sources, standard of care, assault and battery, oral contract, and lack of informed consent, all as herein provided.

The judgment was signed by the judge and filed.

Thus, from the above, it is clear that the partial “final” judgment is an interlocutory one as it did not dispose of all of appellants’ claims. The question then is whether we have the necessary jurisdiction to entertain an appeal from such a judgment. None of the parties has raised this jurisdictional question; however, we have the obligation to determine our own jurisdiction in each case. Rueda v. Galvez, 94 Ariz. 131, 382 P.2d 239; Matter of Appeal In Maricopa County, Juvenile Action Nos. J-86384 and JS-2605, 122 Ariz. 238, 594 P.2d 104 (App.1979).

Our jurisdiction to hear an interlocutory partial summary judgment is governed by A.R.S. § 12-2101(G). It authorizes an appeal from an interlocutory judgment which “determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery.” The partial “final” judgment sub judice does neither of these things. The judgment merely requires that appellants comply with the provisions of the Medical Malpractice Act, A.R.S. § 12-561 et seq., prior to filing their complaint. In Cook v. Cook, 26 Ariz.App. 163, 547 P.2d 15 (1976), we held that a partial summary judgment on the question of liability in favor of the plaintiff was appealable if signed by the judge, and if it contained an express Rule 54(b), footnote 2, determination. No such substantial issue determining the rights of the parties was settled by the above partial “final” judgment. See Kelman v. Bohi, 27 Ariz.App. 24, 550 P.2d 671 (1976).

In our opinion the partial “final” judgment sub judice is not an appealable final judgment within the requirements of A.R.S. § 12-2101(G). This appeal is therefore dismissed and the matter remanded to the trial court for further proceedings.

1 . 56(c) ... A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

56(d) Case not fully adjudicated on motion. If on motion under this Rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

2 . 54(b) Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.