Professional Negligence Law Reporter

The Arizona Supreme Court held that the dismissal of an agent-physician does not preclude claims against the principal for independent negligent acts, even where the latter claims require proof of the physician’s negligence.

Here, three bariatric surgery patients sued a surgeon for negligent surgical care and a hospital for vicarious liability and the negligent administration of its bariatric surgery program, including its hiring, supervision, and credentialing. The plaintiffs settled with the doctor but reserved their independent claims against the hospital. The hospital moved to dismiss the remaining claims on the grounds that they were derivative of the doctor’s negligence.

The trial court granted the hospital’s motion regarding the hiring, credentialing, and supervision claims but held that any independent negligence claims survived the settlement with the doctor. An intermediate appellate court affirmed.

Reversing in part, the state high court concluded that the plaintiffs’ claims for negligent credentialing, hiring, and supervision are based on the hospital’s independent acts of negligence. Citing case law, the court also noted that the plaintiffs had not agreed that their settlement with the doctor precluded their negligence claims against the hospital. In fact, the court added, the settlement agreement stated the opposite and expressly preserved those claims. The court rejected the defendant’s argument that issue preclusion barred the plaintiffs’ claims, finding that their claims against the defendant doctor were settled and not actually litigated.

Consequently, the court held that the plaintiffs were not barred from suing the hospital for negligent hiring, credentialing, or supervision.

Citation: Kopp v. Physician Grp. of Ariz., Inc., 421 P.3d 149 (Ariz. 2018).

Plaintiff counsel: AAJ members H. Michael Wright and Lincoln M. Wright, both of Mesa, Ariz.; and AAJ member J. Robert Tolman, Tempe, Ariz.

Amicus curiae counsel: Stanley Feldman, Tucson, and David Abney, Phoenix.