Success Stories

Brett M. Hager and Shanks Leonhardt won an important appellate decision in a to-be-published decision issued by the Arizona Court of Appeals on April 24, 2012. The opinion discussed and clarified Arizona's jurisprudence on personal jurisdiction for foreign manufacturers. 

Supreme Court Declines Review of Opinion Affirming

Sanders & Parks' Trial Court Victory

Sanders & Parks, P.C. is pleased to announce that the Arizona Supreme Court has declined to review the ruling of the Arizona Court of Appeals that affirmed the trial court's ruling in favor of Sanders & Parks' client, SCF Arizona ("SCF"). SCF is a workers' compensation insurance company that did not have contracts with Canyon Surgery Center and El Dorado Surgery Center (now known as "Tucson Surgery Center") (collectively "the Surgery Centers") to provide services to its injured workers at a reduced or discounted rate as other insurance carriers do.

The case, styled Canyon Surgery Center, et al. v. SCF Arizona, 1 CA-CV 09-0408, involved reimbursements of facility fees for services provided to over 2,100 injured workers from March 2003 through March 2007. In its published opinion, the Court of Appeals affirmed several rulings from the various trial judges who presided over this matter during the lengthy legal battle. After seven years and five months of protracted litigation, the Arizona Supreme Court has vindicated Sanders & Parks' client's legal positions.

The Surgery Centers were two of five original plaintiffs that initially sued to collect their unilaterally-established full-billed charges from SCF. The Surgery Centers' theory was that SCF is a "state agency," was subject to Arizona's Administrative Procedures Act, and that its decision to retain third-party bill review vendor, Qmedtrix, constituted a "rule" that was impermissibly promulgated by SCF. In pre-trial briefings, that theory was rejected in May 2005 by the Honorable J. Richard Gama. This ruling was upheld by the September 16, 2010 Opinion of the Court of Appeals.

Next, the Surgery Center Plaintiffs continued to seek to recover their full-billed charges from SCF under certain contractual and statutory theories and based on bad faith. Again, during pre-trial briefings, the Honorable Timothy J. Ryan rejected those theories for failure to state a claim in January 2006. The Surgery Centers elected not to appeal Judge Ryan's ruling with respect to the bad faith claim. The appellate court confirmed Judge Ryan's rulings on the contractual and statutory claims.

In July 2008, a three-week trial ensued before the Honorable Edward O. Burke. The case was tried by Sanders & Parks attorneys Mark Worischeck and Debora Verdier on the remaining counts wherein the Surgery Centers sought payment of their full-billed charges on claims of negligent misrepresentation and unjust enrichment. With respect to the payment of the Surgery Centers' full-billed charges, the trial court concluded that SCF had already paid the Surgery Centers "the reasonable value of their services, if not more."

At the close of Plaintiffs' evidence, Judge Burke granted SCF's motion for judgment on the pleadings and rejected the Surgery Centers' negligent misrepresentation claims. The appellate court confirmed these conclusions, along with the other pre-trial decisions rendered by the superior court.

In November 2008, Judge Burke rendered his decision on the sole remaining claim for unjust enrichment finding that the plaintiffs were entitled to no more than the reasonable value of their services. He also found that SCF's payments, which were based on recommendations from third-party bill reviewer, Qmedtrix, represented the reasonable value for their services "if not more." The appellate court affirmed Judge Burke's conclusion. The Arizona Supreme Court has now declined to review the published decision.

In the opinion, the appellate court held that the surgery centers "were required to prove SCF paid less than a reasonable amount for their services, in which case they could recover the difference under a theory of quantum meruit or unjust enrichment." Canyon Ambulatory Surgery Ctr. v. SCF Arizona, 225 Ariz. 414, 422, ¶ 29, 239 P.3d 733, 741 (App. 2010). The appellate court confirmed that the plaintiffs may measure the reasonable value of their services either by demonstrating "the fair market value of their services" or "the actual cost to them to provide the services, plus a reasonable rate of return." Id. Ms. Verdier stated: "With the supreme court's decision to deny review, this now holds as the standard for cases like this."

In reviewing Judge Burke's conclusions, the appellate court affirmed the trial court's reliance on the undisputed evidence that Canyon accepts 30% or less from 82% of its payors and El Dorado accepts less than 24% from 89% of its payors. Id. at 423, ¶ 31, 239 P.3d at 742. Stated differently, Canyon accepts less than 30 cents on the dollar from most of its customers and El Dorado accepts less than 24 cents on the dollar from most. The appellate court affirmed the trial court's conclusion that "the payments made by SCF, which exceeded 40% of the billed charges, were reasonable under the circumstances." Id. at 423-424, ¶¶ 31, 34, 239 P.3d at 742-743.

Ms. Verdier, who argued the appeal on behalf of SCF, stated that "reasonableness has prevailed." The Appellate Court rejected the Surgery Centers' arguments at oral argument that their charges need not be subject to a review for reasonableness unless and until they are found to be "unconscionable." Ms. Verdier argued that requiring a bill be "unconscionable" before it is required that it be "reasonable" is a preposterous notion and is pleased the appellate court rejected this notion in a published opinion.

The impact of the opinion reaches far beyond the $4.69M in dispute in the Canyon case. The parties had stipulated to try only those claims that were presented between March 31, 2003 and March 31, 2007. For those stipulated claims, SCF had paid $3.59M and the plaintiff surgery centers were seeking an additional $4.69M. By law, SCF is not permitted to direct injured workers away from certain facilities. Thus, despite this litigation, these two Surgery Centers have continued to treat SCF claimants, thereby increasing what they allege to be their "damages."

Thus, the case has far reaching import beyond just the claims tried in July 2008. Indeed, the ruling has an impact even beyond the claims presented by these two non-contracted facilities. During the oral argument in the court of appeals, counsel for the Surgery Centers confirmed that there are facilities all over Arizona that are not subject to a fee schedule and that do not have contracts with workers' compensation carriers that are watching this case. With its ruling, the appellate court has confirmed SCF's right to subject its bills from non-contracted, non-fee scheduled providers to a reasonableness review. The savings to Arizona's employers who must pay for workers' compensation insurance as a result of this ruling are significant.

Mr. Worischeck commented: "The court's ruling strikes a blow to health care providers who seek to impose their unreasonable charges on Arizona's employers."

To read the actual Court of Appeals opinion, click here

Jury returns unanimous defense verdict following 16-day trial.

March, 2010, Maricopa County Superior Court - Following a 16-day trial in a wrongful death medical malpractice case, a jury in Mesa, Arizona, returned a unanimous defense verdict in favor of the anesthesiologist who was represented by attorneys Winn Sammons, Esq. and Jim Goodwin, Esq. from Sanders & Parks, P.C.

The suit involved a 46-year-old male patient with a history of morbid obesity, heart problems, and related medical conditions, who underwent laparoscopic gastric bypass surgery on May 16, 2006. Signs and symptoms of an intestinal blockage emerged after the initial surgery. The surgeon returned the patient for an exploratory laparotomy on May 18, 2006. Sanders & Parks' client was the anesthesiologist for both procedures. The surgeon determined at the second surgery that there was an obstruction, which he surgically resolved. However, during the second surgery, both the client anesthesiologist and the surgeon noted a release of intestinal contents into the abdomen when the surgeon removed the obstruction. The surgeon diluted and suctioned out the spillage of intestinal contents and returned the patient to the Post Anesthesia Care Unit (PACU) in what was, initially at least, stable and satisfactory condition. During the PACU stay, the patient developed an increased heart rate that trended upward. The surgeon had ordered the nurses to contact him if the patient's heart rate reached 120 bpm, known as tachycardia. The patient also complained of 10/10 pain that was not responding to morphine. Instead of calling the surgeon, the nurses first contacted the client anesthesiologist.

The client anesthesiologist examined the patient in the PACU, and provided orders to nursing during an approximate 90-minute timeframe. During that approximate 90-minute timeframe, the client anesthesiologist ordered a change in pain medication from morphine to Dilaudid, as well as the administration of a fluid bolus. By the end of the 90-minute timeframe, the client anesthesiologist had ruled out an anesthesia-related problem and determined that the patient's problems were most likely surgical in nature, and most probably the result of chemical peritonitis stemming from the spillage of intestinal contents during the earlier surgery. The client anesthesiologist requested that the PACU nurse call the surgeon to update the surgeon on the patient's condition and seek further orders.

The PACU nurse placed a call to the surgeon, which she characterized as a 30-45 second phone call during which the surgeon was extremely "short" with her. The PACU nurse claimed to have informed the surgeon of the patient's tachycardia, but the surgeon attributed that finding to the fact that the PACU nurse had allowed the patient up out of bed to use the bathroom for approximately an hour. Both the nurse and the surgeon testified at deposition that the surgeon instructed the nurse to return the patient to bed and then discharge him to a general nursing floor.

The client anesthesiologist was not contacted about the patient thereafter, and all parties agreed that the anesthesiologist was no longer involved in the patient's care after the patient was discharged from the PACU.

Throughout the early morning hours of May 19, 2006, the patient's tachycardia continued. Multiple nurses testified about having made multiple telephone calls to the surgeon, all of which the surgeon denied having received. The surgeon's phone records indicated that no phone calls were placed to him. The surgeon returned to the hospital and examined the patient in the early morning hours of May 19, 2006. He did not, however, return the patient for exploratory surgery, even after noting ongoing sustained tachycardia throughout the entire prior evening. Later in the afternoon on May 19, 2006, the patient progressed into septic shock, ultimately demonstrating signs of a necrotizing fasciitis infection that resulted in his death the next day.

The patient's surviving spouse and her three minor children filed suit against the anesthesiologist, the surgeon and the hospital. The surgeon and hospital settled out of the lawsuit for an undisclosed sum early in the litigation. The client anesthesiologist and his practice group were the only defendants at trial.

At trial, the Plaintiffs' attorneys and experts argued that the anesthesiologist failed to order necessary blood tests, and that the anesthesiologist should have spoken directly with the surgeon and/or otherwise taken steps to ensure that the proper information was conveyed by the nurses to the surgeon.

The defense anesthesiology standard of care expert testified that the standard of care did not require the client anesthesiologist to order the blood tests in the PACU. The defense anesthesiology expert also testified that the client anesthesiologist properly and timely determined that the patient had a surgical complication, and properly and timely requested the nurses to consult with the surgeon to obtain proper surgical interventions. The defense maintained that an anesthesiologist is entitled to rely upon nurses and surgeons to comply with their own standards of care, and that their negligence could not have been reasonably anticipated.

The client anesthesiologist also testified in his own defense, and explained to the jury that he did not order the blood tests because he fully expected them to be abnormal based upon prior test results and due to the patient's prior hospital course. Instead, the client anesthesiologist's focus was on the spillage of succus, which he initially suspected probably caused chemical irritation and increased tachycardia. The client anesthesiologist also suspected that the patient's high pain levels may have been causing the tachycardia. By switching pain medications to Dilaudid and the administration of a fluid bolus, he thought the patient's pain and tachycardia would be relieved. Since the pain and tachycardia continued, even after the administration of the fluid bolus and the medication switch, the client anesthesiologist testified that it was clear to him that this was a surgical complication. The client anesthesiologist testified further that an anesthesiologist has a right to rely on the nurses and the surgeon to comply with their own standard of care.

The jury agreed and returned a unanimous defense verdict in favor of the client anesthesiologist and his practice group following at the conclusion of the trial.

Rick Bryson obtained a judgment for all damages and injunctive relief sought in a patent infringement case. The firm's client in the case is the world's leading manufacturer of satellite data communications equipment and sought to enforce its patent relating to 8 QAM architecture. The firm obtained a judgment for both damages and injunctive relief.

Rick Bryson successfully defended claims of dfefamation, false light and related claims in employment discrimination related case. After an EEOC proceeding, two lawsuits involving many depositions, significant discovery and plaintiffs' settlement demands in the high six figures and seven figures, the defendants agreed to a judgment and dismissal of the cases for $1.

Jeff Smith and Robin Burgess received a unanimous defense verdict on October 22, 2009 in a traumatic personal injury matter originally brought against the City of Phoenix. The Plaintiff alleged that she was run over by a City of Phoenix bus, and served a notice of claim for $750,000. During closing, Plaintiff asked for in excess of $500,000. The jury deliberated for ten minutes and found unanimously for the defense.

Brett Hager recently settled a significant dram shop case on behalf of three severely-injured Plaintiffs who were hit broad-side by an intoxicated driver who ran a red light. They settled the claim against the Defendant driver late last year.

After more than a year of negotiation and expert consultation, Brett Hager reached a favorable settlement of a non-fatal airplane crash involving an in-flight engine failure just two hours after a complete engine overhaul. Defendants engaged multiple sets of technical experts throughout the country, including Scanning Electron Microscope analysis and hydraulic lifter bleed-down analysis, but Mr. Hager was able to counter those experts and achieve a favorable settlement for the injured pilot.

Mark Worischeck and Brett Hager, both owners and directors of the Firm, recently negotiated settlements on behalf of the surviving family members of two men killed in separate aviation accidents. In the first, a passenger in a single-engine kitplane was killed when the aircraft struck high tension powerlines. Mssrs. Worischeck and Hager brought a lawsuit on behalf of the passenger's surviving wife and two young children, and settled the case for a confidential amount after more than a year of litigation.

In the second case, a student-pilot on a training flight was killed in Oregon when the port wing separated in flight. Defendants vigorously contested liability. The highly-favorable settlement will provide much-needed stability for the decedent's survivors, including his wife and two daughters.