Giving a medication to a patient against her will constitutes battery, the Arizona Supreme Court ruled.

In a unanimous opinion released June 16, the state’s high court also ruled that portions of Arizona’s Medical Malpractice Act violate the state Constitution’s right to recover damages for injury.

The opinion requires that Maricopa County Superior Court reconsider a lawsuit filed by Martha Duncan, who suffered several health problems after being injected with a synthetic painkiller at a Scottsdale hospital in 1998.

Ms. Duncan was to receive a magnetic resonance imaging examination, and told a nurse at Scottsdale Memorial Hospital North that she needed sedation because of a back condition that wouldn’t allow her to lie still during the MRI. Ms. Duncan said she was allergic to synthetic painkillers and would only accept demerol or morphine, which are derived from plants.

Despite her instructions, Ms. Duncan was told by a nurse on the day of the examination that she would receive fentanyl. After repeating her request for demerol or morphine, Ms. Duncan was told by Nurse Gary Fink that she would receive morphine.

Ms. Duncan learned after the MRI that she had been administered fentanyl, which according to her suit caused several health problems, including severe headache, vomiting, breathing difficulties and vocal cord dysfunction. Ms. Duncan also suffered from post-traumatic stress disorder, according to her lawsuit.

Ms. Duncan sued Scottsdale Medical Imaging Ltd. and Hospital Radiologist Ltd., making the claim, among others, that the administration of fentanyl against her wishes amounted to battery.

Maricopa County Superior Court Judge Sherry Hutt dismissed the battery claim, ruling that the state’s Medical Malpractice Act, contained in ARS 12-561 through 12-594, was actually a medical malpractice claim. ARS 12-562(B) states, “No medical malpractice action brought against a licensed health care provider shall be based upon assault and battery.” The Court of Appeals declined to take up an appeal of Ms. Duncan’s case.

The Arizona Supreme Court, however, stated that “law is well established that a health care provider commits a common law battery on a patient if a medical procedure is performed without the patient’s consent,” the court stated, citing a ruling in a 1978 Arizona case, Hales v. Pittman.

Even though the Legislature may enact laws to regulate the right to recover damages, that regulation may not “so affect the fundamental right to sue for damages [in Article 18, Section 6 of the Constitution] as to effectively deprive the claimant [Ms. Duncan] of the ability to bring action,” the court stated.

Article 18, Section 6 of the Arizona Constitution states, “The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to statutory limitation.”

Chief Justice Charles E. Jones wrote the 5-0 opinion. Others who heard the case and joined in the ruling were Vice Chief Justice Ruth V. McGregor, Justice Michael D. Ryan, retired justice Robert J. Corcoran and Judge Joseph H. Howard of the Arizona Court of Appeals in Tucson. Justice Corcoran and Judge Howard sat on the case because of the vacancy on the Supreme Court later filled by the appointment of Andrew Hurwitz and the recusal of Justice Rebecca White Berch, who declined to hear the case because she had been on the Court of Appeals in Phoenix that refused to hear Ms. Duncan’s appeal from the Superior Court.

Mixed Reaction

Lawmakers had mixed reaction to the ruling.

Sen. Carolyn Allen, R-Dist. 8, chairwoman of the Senate Health Committee, said the ruling “…will have an impact on the medical community, but it’s too soon to know” what the ramifications will be.

Sen. Linda Binder, R-Dist. 3, said the court ruling is “discouraging for the medical field.”

“It discourages physicians from practicing in this state when we’re trying to find relief for them,” Ms. Binder said.

Sen. Robert Cannell, D-Dist. 24, a physician, said health-care professionals who “override” the wishes of patients should be punished, not for battery, but under malpractice law.

“This opens up a can of worms,” Mr. Cannell said. “It’s unfortunate. It increases the risk of practicing medicine.”

The Arizona Medical Association’s legal counsel is reviewing the decision, communications director Andrea Smiley said.

“We want to see what the decision means for physicians and what steps we may need to take, whether that may be legislative or otherwise,” Ms. Smiley said.

The case is Duncan v. Scottsdale Medical Imaging Ltd., case number CV-02-0191-PR. —

Reporters Daniel Burnette can be reached at dburnette@azcapitoltimes.com and Phil Riske can be reached at priske@azcapitoltimes.com