Schuler v. Sharma

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CLINT SCHULER, et al., Plaintiffs/Appellants,
v.
ABHISHIEK SHARMA, M.D., et al., Defendants/Appellees.
No. 1 CA-CV 21-0042
FILED 9-28-2021
Appeal from the Superior Court in Maricopa County
No. CV2018-098193
The Honorable David J. Palmer, Judge
AFFIRMED
COUNSEL
Plezana Schuler, Clint Schuler, and Randi Schuler-Senseman, Mesa
Plaintiffs/Appellants
Broening Oberg Woods & Wilson, PC, Phoenix
By James R. Broening, Kelley M. Jancaitis
Counsel for Defendants/Appellees Mohamed Abdulhamid, M.D., and Yossra M.
Kambal Abdulhamid
Quintairos, Prieto, Wood & Boyer, P.A., Scottsdale
By Rita J. Bustos, Andrew E. Rosenzweig, Samantha L. Butler
Counsel for Defendants/Appellees Abhishiek Sharma, M.D., Glory Sharma, and
Arizona Brain and Spine Center, P.L.L.C.
SCHULER, et al. v. SHARMA, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.
C R U Z, Judge:
¶1 In this medical battery action, Plezana Shlee Schuler (“Mrs.
Schuler”), Clint Schuler (“Mr. Schuler”), and their daughter, Randi Schuler-
Senseman, (collectively, “Plaintiffs”) appeal superior court rulings denying
their motion for summary judgment, precluding Mr. Schuler from
representing Mrs. Schuler in court, and denying their motion for leave to
amend the complaint. They also appeal the grant of summary judgment for
Abhishiek Sharma, M.D.; Mohamed Abdulhamid, M.D.; their wives; and
Arizona Brain and Spine Center, P.L.L.C (collectively, “Defendants”). For
the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mrs. Schuler was hospitalized after an accident that caused a
burst fracture of her T12 vertebrae. Dr. Sharma, a neurosurgeon, assessed
her injuries and recommended a five-level fixation fusion procedure from
the T10 to L2 vertebrae and T12 laminectomy. Dr. Sharma and Mrs. Schuler
discussed the procedure, and Mrs. Schuler signed a consent form
authorizing Dr. Sharma to perform a “T10-L2 fixation fusion, possible
additional levels and T12 laminectomy.” The consent form stated, in
relevant part:
4. I consent to the performance of operations and/or
procedures in addition to or different from those now
contemplated, but are necessary or advisable in the course of
the operation due to unforeseen conditions.
5. I understand the practitioner performing the procedure
may be assisted as necessary for the procedure by . . .
[p]ractitioners including but not limited to resident/fellows,
who will be performing important tasks related to the
surgery, in accordance with the hospital’s policies.
All practitioners will be performing only tasks that are within
their scope of practice, as determined under State law and
2
SCHULER, et al. v. SHARMA, et al.
Decision of the Court
regulation, and for which they have been granted privileges
by the hospital.
¶3 Dr. Sharma spent over an hour with Mrs. Schuler the day
before her surgery discussing the injury, the risks and benefits of the
proposed treatment, the goal of decompressing the spinal cord and
stabilizing the fracture, which could involve vertebrae above or below the
T10 to L2 vertebrae. Mrs. Schuler testified that Dr. Sharma said he would
do a fusion on the T10 to L2 vertebrae and that it could involve more levels,
but he would not know until the surgery was underway. Dr. Sharma
confirmed that they could not know the exact nature of Mrs. Schuler’s
injuries or appropriate treatment until surgery.
¶4 According to Defendants, Dr. Sharma explained to Mrs.
Schuler that because she needed a “non-traditional newer cortical screw
technique,” he needed an “assistant or co-surgeon” to help perform this
part of the procedure to avoid having to transfer Mrs. Schuler to another
facility. Dr. Sharma did not specifically name Dr. Abdulhamid but referred
to him as his “partner.” Doctors Sharma and Abdulhamid testified, and the
contemporaneous medical records show, that they both saw and examined
Mrs. Schuler the morning of her surgery while she was awake and alert.
Mrs. Schuler does not recall meeting Dr. Abdulhamid the morning of her
surgery or the specifics of her conversation with Dr. Sharma.
¶5 During the surgery, Doctors Sharma and Abdulhamid were
“pleasantly surprised” to find that Mrs. Schuler’s condition was such that
they could perform a three-level fixation fusion procedure from T11 to L1
levels rather than the five-level fixation fusion from T10 to L2. That is, the
surgery involved two fewer vertebrae than originally planned. Mrs.
Schuler later developed complications that required another surgery with
a different physician.
¶6 Plaintiffs sued Defendants, alleging a medical battery because
Dr. Abdulhamid, not Dr. Sharma, performed a different procedure than the
T10 to L2 fixation fusion stated in the consent form. Plaintiffs’ complaint
asserted several other claims that were later dismissed and are not relevant
to this appeal.
¶7 Early in the litigation, Plaintiffs moved for summary
judgment on the medical battery claim, arguing that Mrs. Schuler did not
consent to the T11 to L1 fixation fusion procedure and that her consent did
not include Dr. Abdulhamid. Defendants, on the other hand, argued that
Mrs. Schuler orally consented to the procedure and to Dr. Abdulhamid’s
3
SCHULER, et al. v. SHARMA, et al.
Decision of the Court
participation. The superior court found genuine issues of material fact
existed and denied the motion.
¶8 After further discovery, Defendants moved for summary
judgment on the remaining medical battery claim. Plaintiffs argued that
factual disputes precluded summary judgment. Specifically, they disputed
that Mrs. Schuler orally consented to any procedure other than the T10 to
L2 fixation fusion or to Dr. Abdulhamid’s participation. Although
Defendants again argued that Mrs. Schuler gave oral consent, they also
argued, alternatively, that the written consent covered the procedure and
both physicians. The superior court agreed and granted summary
judgment for Defendants.
¶9 The superior court also held that Mr. Schuler, a non-attorney,
could not represent Mrs. Schuler, and denied Plaintiffs’ request to file a
second amended complaint. Mrs. Schuler timely appealed. We have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) section 12-
2101(A)(1).
DISCUSSION
I. The Superior Court Properly Granted Summary Judgment For
Defendants on the Medical Battery Claim.
¶10 A court shall enter summary judgment for the moving party
if the record “shows that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.” Ariz. R.
Civ. P. 56(a). The court should grant summary judgment “if the facts
produced in support of the claim or defense have so little probative value,
given the quantum of evidence required, that reasonable people could not
agree with the conclusion advanced by the proponent of the claim or
defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). We view the
evidence in the light most favorable to the parties against whom judgment
was entered and review de novo whether genuine issues of material fact
exist and whether the superior court properly applied the law. Awsienko v.
Cohen, 227 Ariz. 256, 258, ¶ 7 (App. 2011).
¶11 “A medical battery occurs when a physician performs a
medical procedure without the patient’s consent.” Carter v. Pain Ctr. of
Ariz., P.C., 239 Ariz. 164, 166, ¶ 7 (App. 2016); see also Duncan v. Scottsdale
Med. Imaging, Ltd., 205 Ariz. 306, 309, ¶ 9 (2003). A patient’s consent defeats
a battery claim. Duncan, 205 Ariz. at 309, ¶ 9. Generally, “[t]he ‘scope’ of
consent is an issue for the trier of fact.” Id. at 311, ¶ 16 (quoting Restatement
(Second) of Torts § 892A(2)(b) (1965) (“Restatement”)); see also Cathemer v.
4
SCHULER, et al. v. SHARMA, et al.
Decision of the Court
Hunter, 27 Ariz. App. 780, 785 (1976). However, based on this record, we
cannot say that a reasonable juror could find that the written consent did
not cover the T11 to L1 procedure or Dr. Abdulhamid’s participation.
¶12 To be effective, a patient must consent “to the particular
conduct, or substantially the same conduct.” Duncan, 205 Ariz. at 311, ¶ 16(quoting Restatement § 892A(2)(b)). “The terms and reasonable
implications of the consent given determine the scope of the particular
conduct covered.” Duncan, 205 Ariz. at 311, ¶ 16 (citing Restatement
§ 892A, cmt. d.).
A. The Consent Covered the T11 to L1 Procedure.
¶13 Mrs. Schuler gave consent to a fixation fusion procedure
encompassing the T10 to L2 vertebrae and additional vertebrae if necessary.
Both physicians expected to operate on the T10 to L2 vertebrae but were
“pleasantly surprised” during the surgery to discover that Mrs. Schuler’s
bone was healthier than anticipated. As a result, they performed the same
fixation fusion procedure on three vertebrae instead of five. The Schulers
did not refute this. In fact, Plaintiffs contend they are entitled to summary
judgment precisely because Defendants performed a “different” procedure
than the T10 to L2 fixation fusion procedure stated in the consent form. The
fact that the procedure was “different” does not mean it was outside the
scope of consent. The test is whether the procedure performed was
substantially similar in nature to the procedure Mrs. Schuler consented to.
Cathemer, 27 Ariz. App. at 785.
¶14 The undisputed evidence showed that the physicians
discovered during the surgery that they could stabilize Mrs. Schuler’s spine
by performing the same procedure on fewer vertebrae. The physicians
made this decision during surgery based on their medical judgment. The
consent form anticipated that such decisions may be required. Plaintiffs
presented no evidence showing that the T11 to L1 procedure was not
substantially similar in nature to a T10 to L2 procedure or that it was not
advisable based on the healthy condition of Mrs. Schuler’s bone. To find a
medical battery in these circumstances would discourage physicians from
exercising their medical judgment. See Conte v. Girard Orthopaedic Surgeons
Med. Grp., Inc., 132 Cal. Rptr. 2d 855, 860-61 (Cal. Ct. App. 2003) (holding
that a patient’s consent to any procedure the surgeon found advisable
included performing no surgical repair where the surgeon found that was
the appropriate treatment).
5
SCHULER, et al. v. SHARMA, et al.
Decision of the Court
¶15 Plaintiffs argue that the scope of the consent can only be
decided by the fact finder, citing Cathemer, 27 Ariz. App. at 784. Cathemer is
distinguishable. In Cathemer, 27 Ariz. App. at 782, the patient consented to
a right hip prosthesis. He did not understand the meaning of that phrase
and believed he was getting a total hip replacement. Id. A total hip
replacement is a more extensive surgery that replaces the entire hip socket,
whereas a hip prosthesis procedure consists of inserting a pin and ball into
the femur, leaving the hip socket intact. Id. The court held that whether a
total hip replacement and a right hip prosthesis were substantially similar
procedures could not be decided as a matter of law, especially given the
surgeon’s own testimony detailing the differences. Id. at 785.
¶16 Here the physicians performed the same fixation fusion
procedure on three of the five vertebrae covered by the consent form. As
the Restatement § 892A, comment d, makes clear, whether “the person
consenting knows that the surgeon may encounter unexpected conditions
calling for a change in plan is to be considered in interpreting the extent of
the consent. Unless the understanding is made clear by express language, these
questions of interpretation are normally for the trier of fact to determine.”
(Emphasis added.) Here, the consent expressly covered the possibility of
an additional or different procedure. Moreover, the Schulers did not refute
Defendants’ evidence that the T11 to L1 fixation fusion procedure was
substantially similar in nature to the T10 to L2 fixation fusion procedure to
which Mrs. Schuler consented. Thus, there was no dispute for a jury to
decide.
¶17 Contrary to Plaintiffs’ contention, the physicians’ deposition
testimony did not create a factual dispute precluding summary judgment.
Their testimony was not inconsistent with their prior admissions and
affidavits and did not preclude summary judgment. In discovery
responses, both physicians admitted that there were no “complications or
extenuating circumstances recorded in [their] operative reports for the
surgery[.]” And Dr. Abdulhamid’s affidavit stated that there were no
unforeseen circumstances requiring that the procedure involve additional
levels. Their deposition testimony, however, explained that the unforeseen
condition or circumstance during surgery was the need to involve fewer
vertebrae because Mrs. Schuler’s bone was healthier than expected. Dr.
Abdulhamid’s testimony was not inconsistent with his affidavit, which was
limited to unforeseen circumstances warranting additional levels. The
deposition testimony responded to slightly different questions than those
posed in the request for admission. Thus, the superior court properly
considered the deposition testimony.
6
SCHULER, et al. v. SHARMA, et al.
Decision of the Court
B. The Consent Covered Dr. Abdulhamid’s Participation.
¶18 The consent form stated Mrs. Schuler’s understanding that
Dr. Sharma “may be assisted as necessary” by other “[p]ractitioners
including but not limited to residents/fellows, who will be performing
important tasks related to the surgery, in accordance with the hospital’s
policies” and within their scope of practice. Plaintiffs do not dispute that
Dr. Abdulhamid’s assistance was necessary, that he is a practitioner, or that
he performed the surgery in accordance with hospital policies.
¶19 Plaintiffs contend that Dr. Abdulhamid was not Dr. Sharma’s
“assistant,” instead he was a substitute or “ghost” surgeon not included on
the consent form. According to Plaintiffs, the term “assist” implies a
subordinate. This contradicts the plain language in the consent form. It
states that “the practitioner performing the procedure” may be assisted by
another “practitioner [who] will be performing only tasks within their scope
of practice[.]” (Emphasis added.) The language, therefore, covers a
situation as here, where one physician assists another by performing one
portion of a complex procedure within their scope of practice. Because
there was no evidence that Dr. Abdulhamid was not a practitioner
performing within the scope of his practice and in accordance with hospital
policy, the superior court properly granted summary judgment for Dr.
Abdulhamid. See Orme Sch., 166 Ariz. at 309-10 (holding that the record
must contain “evidence on which the jury could reasonably find for
plaintiff”).
¶20 Plaintiffs also contend the superior court erred in granting
summary judgment for Defendants because there is a factual dispute about
whether Mrs. Schuler orally consented to the T11 to L1 procedure or Dr.
Abdulhamid’s participation. Although Defendants claimed there was a
factual dispute over Mrs. Schuler’s oral consent when responding to the
Schulers’ summary judgment motion, they later moved for summary
judgment arguing, alternatively, that the written consent covered the
procedure and Dr. Abdulhamid’s participation. As discussed above, the
written consent was sufficient. Thus, any dispute over Mrs. Schuler’s oral
consent was not material because the court properly granted summary
judgment for Defendants based on the language in the written consent
7
SCHULER, et al. v. SHARMA, et al.
Decision of the Court
form.1 For the same reasons, we need not address Plaintiffs’ claim that the
court erred in considering parol evidence to show oral consent.
¶21 We affirm the grant of summary judgment for Defendants on
the medical battery claim.
II. Mr. Schuler, a Non-Attorney, Could Not Represent Mrs. Schuler.
¶22 The superior court ruled that Mr. Schuler could not represent
Mrs. Schuler in court proceedings or depositions. Contrary to Plaintiffs’
assertion, the court did not deprive Mrs. Schuler of due process. A spouse
who is not a member of the Arizona State Bar may not represent his or her
spouse in court, regardless of the community nature of the claim. See
Haberkorn v. Sears, Roebuck & Co., 5 Ariz. App. 397, 399 (1967); see also Ariz.
R. Sup. Ct. 31.1(a), 31.2 (only active members in good standing with the
Arizona State Bar are authorized to practice law). Due process was satisfied
here because the court provided Mrs. Schuler an opportunity to represent
herself or hire counsel. See Encinas v. Mangum, 203 Ariz. 357, 359, ¶ 10 (App.
2002).
¶23 Plaintiffs also incorrectly characterize Mrs. Schuler’s battery
claim as community property. See Jurek v. Jurek, 124 Ariz. 596, 598 (1980)
(holding that compensation for personal injuries to a spouse are separate
property, but compensation for medical expenses and lost wages are
community property). Regardless, the community nature of some damages
does not authorize Mr. Schuler, a non-attorney, to represent his wife. See
Haberkorn, 5 Ariz. App. at 399; Ariz. R. Sup. Ct. 31.1(a), 31.2. The superior
court did not abuse its discretion when it denied Plaintiffs’ motion for
reconsideration on this issue without oral argument. See Ariz. R. Civ. P.
7.1(d) (allowing courts to decide motions without oral argument, even if it
is requested).
III. The Superior Court Did Not Abuse Its Discretion by Denying Leave
to Amend the Complaint.
¶24 Plaintiffs sought leave to file a second amended complaint.
The superior court denied the request, finding that the proposed
amendments were merely “extensive and unnecessary recitations of facts
1 Plaintiffs also state that the superior court did not allow Mrs. Schuler
to “testify” in opposition to Defendants’ summary judgment motions.
Plaintiffs do not contend that they had new or additional evidence to offer
at the hearing. The court heard argument from Mrs. Schuler, which is all
that is required based on this record.
8
SCHULER, et al. v. SHARMA, et al.
Decision of the Court
. . . learned through the discovery process.” We review the denial of a
motion for leave to amend a complaint under an abuse of discretion
standard. Swenson v. County of Pinal, 243 Ariz. 122, 128, ¶ 21 (App. 2017).
¶25 Leave to amend shall “be freely given when justice requires.”
Ariz. R. Civ. P. 15(a)(2). Yet it is not an abuse of discretion to deny a motion
for leave to amend if the amendment would be futile. Swenson, 243 Ariz. at
128, ¶ 21 (citing ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 292, ¶ 26 (App.
2010)). Plaintiffs argue that the amendment was necessary to update the
facts and claims relating to Dr. Abdulhamid’s role as a “ghost surgeon.”
However, the proposed amendments did not add any new parties or
claims, only additional facts in support of their claim that Dr. Abdulhamid
committed a battery because he was not listed on the consent form. As
discussed above, the language in the written consent form covered Dr.
Abdulhamid’s participation. The proposed amended complaint did not
assert additional facts that would change that conclusion. For example, the
second amended complaint did not assert that Dr. Abdulhamid was not a
“practitioner” or that he acted outside his scope of practice. Accordingly,
the amendment would have been futile. We affirm the denial of the motion
for leave to amend the complaint.
CONCLUSION
¶26 We affirm the judgment for Defendants, the ruling that Mr.
Schuler could not represent his wife, and the denial of the motion to amend
the complaint. Defendants are entitled to costs on appeal upon compliance
with ARCAP 21. See A.R.S. § 12-342.
AMY M. WOOD • Clerk of the Court
FILED: AA
9