## Facts

- Jay Rice underwent spinal surgery in July 2007 on the S1 and L5 nerve roots to relieve right-leg pain; he also had left-leg pain before surgery.
- Neurosurgeon Arlo B. Brakel performed the operation; right-leg pain improved, but left-leg pain increased after surgery.
- Postoperative care was provided by other physicians at the Center for Neurosciences; later testing and examinations indicated scar tissue and findings consistent with left-side radiculopathy, with later assessments suggesting probable operative injury and postoperative scarring.
- In July 2010, Rice learned from a public source how to check physician disciplinary history and discovered Brakel had been disciplined for dependency on unprescribed prescription opioids around the time of the surgery.
- Jay and Betty Rice sued Brakel and the Center alleging medical battery, medical malpractice/negligence (including informed-consent-related theories), negligent supervision, and breach of contract.
- Defendants moved for summary judgment; the trial court entered summary judgment for defendants on all claims and denied a new trial.

## Issues

1. Whether an undisclosed physician drug dependency can invalidate a patient’s consent so that a consented-to surgery constitutes medical battery.
2. Whether the Center could be liable for negligent supervision absent evidence it knew or should have known of Brakel’s dependency before the surgery and absent causation evidence linking dependency to injury.
3. Whether plaintiffs presented sufficient evidence to create a triable issue on medical malpractice/negligence and breach of contract claims.

## Decision

- The Arizona Court of Appeals affirmed summary judgment for Brakel and the Center on all claims.
- The court held the battery claim failed because Rice consented to the surgery that was performed; nondisclosure of physician impairment was treated as an informed-consent/standard-of-care matter sounding in negligence, not battery.
- The negligent supervision claim failed for lack of evidence that the Center had actual or constructive knowledge of Brakel’s dependency before surgery and for lack of evidence connecting the dependency to Rice’s injury.
- The court found no genuine dispute of material fact supporting the remaining malpractice/negligence and contract claims.

## Legal Principles

- Medical battery requires proof that a medical procedure was performed without the patient’s consent; consent is not negated merely because the patient later learns information that might have affected the decision to consent.
- Claims based on inadequate disclosure bearing on the quality of consent are generally analyzed as negligence (including informed-consent theories), not as intentional tort battery, when the patient consented to the procedure performed.
- Negligent supervision requires evidence that the supervising entity knew or should have known of the employee’s unfitness or dangerous condition before the alleged harm and requires proof of causation linking the supervision breach to the injury.
- On summary judgment, a plaintiff must present evidence sufficient to establish prima facie elements of each claim; speculation or unsupported assertions do not create a genuine issue of material fact.

## Conclusion

The court affirmed judgment for the physician and clinic because the patient’s consent to the surgery defeated a battery theory, and the record lacked evidence that the clinic knew or should have known of the surgeon’s dependency or that the dependency caused the alleged injury; the remaining negligence and contract theories likewise failed for insufficient proof.


Rice v. Brakel, 233 Ariz. 140, 310 P.3d 16 (Ariz. Ct. App. 2013)