Background
Renee Starr, a 36-year-old woman with lupus and Raynaud’s disease, died on May 20, 2021, at Banner Desert Medical Center after being admitted through the emergency department for severe abdominal pain. Her father, Greg Starr, filed a medical negligence and wrongful death suit naming Banner, two hospitalists, and emergency room nurses. Starr’s expert, an emergency medicine physician, provided a preliminary affidavit opining that the ER attending physician, Dr. Hemmert, fell below the standard of care. However, Starr did not provide a separate expert affidavit addressing the hospitalists’ standard of care as required under A.R.S. § 12-2603.
After the hospitalists were dismissed for non-compliance with Section 12-2603 and the nurses were dismissed by consent, only the vicarious liability claim against Banner for Dr. Hemmert’s care remained. But Dr. Hemmert was not a Banner employee—he was an independent contractor working through Progressive Medical Associates (PMA). Banner moved for summary judgment, and the court granted it. Starr appealed, arguing Banner was liable under theories of non-delegable duty, actual agency, and apparent agency.
The Court’s Holding
The Court of Appeals affirmed on all grounds. On the expert affidavit issue, the court held that an emergency room physician’s affidavit cannot satisfy Section 12-2603 for claims against hospitalists, because the statute requires an expert who devotes time to “the active clinical practice of the same health profession as the defendant.” The court also found no abuse of discretion in denying additional time for discovery, since the expert only needed to rely on the facts “as alleged by the plaintiff”—and Starr’s own complaint had already alleged the hospitalist undertook a duty of care.
On hospital liability, the court rejected all three theories. It declined to recognize a non-delegable duty between hospitals and patients, noting that no Arizona case has found such a “special relationship” and that adopting the Restatement (Third) approach would “upend” Arizona’s longstanding common-law framework. On actual agency, the court found that Banner did not control the means of Dr. Hemmert’s work—PMA billed for his services, paid him, and set his schedule. Starr failed to put Banner’s internal policies and procedures into the record and did not request additional discovery under Rule 56(d), waiving that argument. On apparent agency, Starr offered no evidence that Banner made affirmative representations that Dr. Hemmert was its employee, only the Starr family’s unilateral assumptions about who staffed the ER.
Key Takeaways
- Arizona courts have not recognized a “special relationship” between hospitals and patients that would impose a non-delegable duty of care, distinguishing hospitals from other custodial settings like schools and buses.
- Under A.R.S. § 12-2603, a preliminary expert affidavit from a physician in a different specialty (e.g., emergency medicine) cannot satisfy the statutory requirement for claims against a physician in another specialty (e.g., hospitalist medicine).
- To establish actual agency between a hospital and an independent contractor physician, a plaintiff must produce evidence of the hospital’s control over the physician’s day-to-day medical judgment—regulatory compliance and credentialing authority alone are insufficient.
- For apparent agency, a plaintiff must identify affirmative representations by the hospital that created a reasonable belief of employment; a patient’s subjective assumptions are not enough.
Why It Matters
This decision significantly limits plaintiffs’ ability to hold Arizona hospitals vicariously liable for the malpractice of independent contractor physicians. With emergency departments and hospital medicine increasingly staffed through contract medical groups, the opinion creates a practical barrier for medical malpractice plaintiffs who may not learn until discovery that their treating physician was not a hospital employee. The court’s emphasis on Rule 56(d) as the mechanism for obtaining a hospital’s internal policies underscores the importance of timely discovery requests in hospital liability litigation. For defense counsel, the opinion reinforces that credentialing requirements and contractual compliance provisions do not transform an independent contractor relationship into actual agency.