ESTATE OF REINEN v. NORTHERN ARIZONA ORTHOPEDICS LTD II (2000)

OPINION

¶ 1 Jared Reinen, a 19-year-old Jehovah's Witness, was involved in a rollerblading accident on June 23, 1993.   He sustained a broken femur and was taken to the emergency room at Flagstaff Medical Center (FMC), where he was examined by Dr. Michael Abeshaus.   After discussing available treatment options, as well as potential complications from both a pre-existing diabetic condition and his refusal to accept blood or blood products, Reinen elected to have corrective surgery.   Dr. John Durham, an orthopaedic surgeon, performed the procedure on the evening of Thursday, June 24.   During the following weekend, the doctor was unavailable, so Reinen's care was left to the nursing staff and the on-call physicians-Dr.   Roman Lewicky, an orthopaedist, and Dr. Thomas Henry, an internist.

¶ 2 Problems ensued during the early morning hours of June 28.   At approximately 2:30 a.m., Dr. Lewicky was contacted by Christa Fowler, one of the nurses on duty.   The doctor ordered certain tests and instructed Fowler to contact Dr. Henry if the results were abnormal.   The testimony conflicts as to whether Dr. Henry was expected to perform a formal consultation or to merely assist in the interim management of the patient.   In any event, Dr. Henry gave verbal orders to the nurse upon receiving the test results by telephone.   He did not personally examine Mr. Reinen.

¶ 3 The patient's condition became progressively worse over the next several days.   He was eventually transferred to St. Joseph's Hospital in Phoenix, where he remained for over a month.   He was rehospitalized several times during subsequent years until his death in 1998.

¶ 4 While he was still alive, Reinen sued several of his health care providers, including Dr. Lewicky, Dr. Henry, and Christa Fowler's employer, FMC. He alleged, among other things, that Dr. Lewicky violated acceptable standards of medical practice by not calling for a critical care/internal medicine consult;  that Dr. Henry, upon receiving a call in the early morning hours of June 28th, breached appropriate medical standards by failing to examine the patient and/or make sufficient inquiry of the nursing staff;  and that, when no physician arrived to examine and treat the patient, Nurse Fowler violated her duty of care by failing to obtain a doctor from the emergency room or elsewhere and by not immediately informing her supervisor of the situation.

¶ 5 At trial, Dr. William O'Riordan testified as the plaintiff's expert witness on post-operative care and appropriate standards of medical practice.   No objections to his qualifications were made either prior to or during his appearance on the witness stand.   At the close of the plaintiff's case, and after O'Riordan had returned to California, the attorneys for Dr. Henry, Dr. Lewicky, and FMC moved to strike his testimony on foundational grounds, arguing that he lacked expertise.   The trial court granted the motion.

¶ 6 Defense counsel also moved for directed verdicts in favor of their respective clients, arguing that the plaintiff's evidence was insufficient with respect to both negligence and proximate cause.   Dr. Henry had testified during the plaintiff's case that he would not have altered Reinen's course of treatment if called in to do an internal medicine consult or take over the patient's care.   Based on this testimony, the trial court concluded that there could be no proximate cause finding, even assuming the treatment provided by Dr. Lewicky and Nurse Fowler fell below acceptable standards of practice.   Thus, it dismissed Dr. Lewicky from the case and ruled that FMC could not be held vicariously liable for the acts or omissions of its nurse.   The court also dismissed the case against Dr. Henry, reasoning that in the absence of any admissible expert testimony concerning the applicable standard of care and/or proximate causation, Reinen had failed to carry his burden of proof.   The court of appeals affirmed in a memorandum decision, and the plaintiff petitioned for review.

THE DISMISSAL OF DR. HENRY

¶ 7 The trial court determined at the close of the plaintiff's case that Dr. O'Riordan was incompetent to testify regarding the standard of care for an internal medicine specialist.   As stated above, however, no foundational objections were raised either prior to or during O'Riordan's testimony.   The defendants chose instead to wait until the close of the plaintiff's evidence to make their challenge.   Clearly, this was too late.   An objection to proffered testimony must be made either prior to or at the time it is given, and failure to do so constitutes a waiver.   This contemporaneous objection rule has been applied by us in numerous contexts.   See, e.g., State v. Detrich, 188 Ariz. 57, 64, 932 P.2d 1328, 1335 (1997) (“The purpose of a contemporaneous objection requirement is to allow for an immediate remedy for potentially improper or unconstitutional activities.”);  State v. Bolton, 182 Ariz. 290, 306 n. 5, 896 P.2d 830, 846 n. 5 (1995) (witness testimony);  Harrington v. Beauchamp Enters., 158 Ariz. 118, 120, 761 P.2d 1022, 1024 (1988) (jury instruction);  State v. Graham, 97 Ariz. 408, 416, 401 P.2d 141, 147 (1965) (admissibility of evidence).   The court of appeals stated in State v. Swafford that “if an objection is made at some point in time during the trial where the court may take [appropriate] action ․, then the objection will be considered timely unless it appears that counsel deliberately bypassed the opportunity to make a timely objection.”  21 Ariz.App. 474, 481, 520 P.2d 1151, 1158 (1974).   In this case, it appears that defense counsel purposely decided as a strategic or tactical matter not to object when the witness was being qualified.   By failing to complain before or during Dr. O'Riordan's testimony, however, the defendants waived any objection to the foundation for his opinions.   Thus, his expert testimony was for the jury to consider, and its delayed elimination was improper.

¶ 8 Moreover, because the stricken testimony provided evidence of a breach of the standard of care by Dr. Henry and a causal relationship to Reinen's injuries, the dismissal of Henry from the case was erroneous.   In this regard, Dr. O'Riordan testified in part as follows:

Q. If Dr. Henry had done-had arrived, examined and instituted the necessary treatment, ․ by the morning of June 28, would Jared have avoided permanent injury?

A. Yes.

Q. Can you give me a percentage for that?

A. [Y]ou're talking about up in the 70 percent area.

Q. You're assuming Dr. Henry arriving to the hospital after he's called by Nurse Fowler?

A. That's correct.

Q. As the standard required?

A. Right.

The dismissal should not have been granted.

THE DISMISSAL OF DR. LEWICKY AND DIRECTED VERDICT FOR FMC

¶ 9 The trial judge granted the motions of Dr. Lewicky and FMC because he found insufficient evidence that any act or omission on their part proximately caused Reinen's injuries.   This determination was based on the testimony of Dr. Henry, discussed above, that he would not have changed the course of treatment.   The defendants argue that this admission, standing alone, absolves them of liability.

¶ 10 As set forth in Orme School v. Reeves, a directed verdict is appropriate “only when, without weighing the credibility of the witnesses, there is [no] difference of opinion over the factual issues in controversy.”  166 Ariz. 301, 308-09, 802 P.2d 1000, 1007-08 (1990) (quoting Galloway v. United States, 319 U.S. 372, 407, 63 S.Ct. 1077, 1096, 87 L.Ed. 1458 (1943) (Black, J., dissenting)) (emphasis added).  “The credibility of a witness' testimony and the weight it should be given are issues particularly within the province of the jury.”  Kuhnke v. Textron, Inc., 140 Ariz. 587, 591, 684 P.2d 159, 163 (1984).   The court or jury is not compelled to believe the uncontradicted evidence of an interested party.   See City of Tucson v. Apache Motors, 74 Ariz. 98, 107, 245 P.2d 255, 261 (1952).   Thus, the jury in this case had the discretion to believe or disbelieve Dr. Henry's claim that he would not have changed the course of Reinen's treatment.

¶ 11 Moreover, the excluded testimony of Dr. O'Riordan would have been sufficient to allow a reasonable jury to find that the actions of Dr. Lewicky and Nurse Fowler proximately caused or contributed to Reinen's injuries.   O'Riordan stated that the applicable standard of care required Dr. Lewicky to request a critical care consult on the morning of Monday, June 28.   Testimony at trial conflicted regarding the content of communications between Dr. Lewicky, Nurse Fowler, and Dr. Henry.   Dr. O'Riordan, however, testified that in his opinion Dr. Lewicky was obligated to personally speak with Dr. Henry about a consult.   This, by all accounts, he did not do.

¶ 12 Neither Dr. Henry nor any other critical care specialist examined Reinen.   According to Dr. O'Riordan, the standard of care under these circumstances required Christa Fowler either to obtain a doctor who was immediately available, such as an emergency room physician, or to call the nursing supervisor and inform her of the situation.   Nurse Fowler did neither.

¶ 13 Finally, as indicated above, Dr. O'Riordan testified that if a critical care, internal medicine, or emergency room doctor had arrived that morning and treated Reinen in accordance with the standard of care, the patient would have had a 60-70 percent chance of avoiding permanent injury.   Again, this testimony was erroneously excluded.   Thus, because the plaintiff produced evidence without objection regarding the standard of care and the proximate cause of Reinen's injuries, and it was then solely for the jury to determine the credibility of witnesses, the directed verdicts in favor of Dr. Lewicky and FMC were improper.

¶ 14 An additional challenge raised on appeal involves the propriety of certain “assumption of the risk” jury instructions.   See Ariz. Const. art. XVIII, § 5.   Because we remand the case for a new trial, we need not reach this issue now.   It is impossible for us to know what the evidence on retrial will be, and so we leave the determination of appropriate instructions to the judge who presides over that proceeding.

¶ 15 The memorandum decision of the court of appeals is vacated.   The orders of the trial court are reversed and the matter remanded for a new trial.

ZLAKET, Chief Justice.

CONCURRING:  CHARLES E. JONES, Vice Chief Justice, STANLEY G. FELDMAN, Justice, FREDERICK J. MARTONE, Justice, and RUTH V. McGREGOR, Justice.