Date: 11-28-2000

Case Style: Denise Englert, et al. v. Carondelet Health Network, et al.

Case Number: 324445

Judge: Stephen C. Villarreal

Court: Superior Court, Pima County, Arizona

Plaintiff's Attorney: Barry M. Davis and JoJene E. Mills of Piccarreta & Davis, P.C., Tucson, Arizona and Nancy M. Coomer of Christian, Mariano & Coomer, P.L.C., Tucson, Arizona

Defendant's Attorney: Marshall Humphrey III and Roger W. Frazier, Tucson, Arizona for Carondelet Health Network and Frank A. Parks, Renee M. Coury and Karl A. Fazio of Sanders & Parks, P.C., Phoenix, Arizona

Description: Medical Malpractice Wrongful Death - Dwight Englert and his wife, Denise, went to Carondelet's hospital's emergency room around midnight because Dwight felt pressure in his chest and pain radiating to his neck and ear. Dr. Bennett met with Dwight and Denise, examined Dwight, conducted tests, and diagnosed him as having esophagitis. Dr. Bennett sent Dwight home but prescribed Mylanta and instructed Dwight and Denise to return to the hospital if the pain recurred.

Approximately an hour and a half later, Denise called Nurse Carr at the hospital because Dwight's symptoms had returned. The nurse spoke to Dr. Bennett, who instructed her to tell Denise that Dwight should take another dose of Mylanta and, if his pain did not subside, that Dwight should return to the hospital. Dwight took a second dose of Mylanta and he and Denise went to bed. When Denise awoke, Dwight was unresponsive. After being rushed to the hospital, Dwight died that morning from a "sudden cardiac event" caused by "atherosclerotic cardiovascular disease."

Outcome: A jury awarded her $280,000 in damages and apportioned ten percent of the fault to Dr. Bennett, seventy-five percent to the Englerts, and fifteen percent to a non-party physician.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Denise then filed a motion for new trial, claiming she had been denied a fair trial because, over her objection, the court had allowed Dr. Bennett to argue an undisclosed affirmative defense in his closing argument: that the Englerts were comparatively at fault for withholding from Dr. Bennett information about Dwight's medical history. The trial court granted the motion for new trial, finding that Dr. Bennett's withholding of medical history theory was not disclosed before trial and that the court's erroneous decision to permit Dr. Bennett to argue that theory to the jury had affected Denise's rights. After Carondelet filed a motion for clarification, in which Dr. Bennett joined, the trial court specifically ordered that the new trial address all contested issues of liability and damages.

Affirmed by the Arizona Court of Appeals, Div. 2. See: 13 P.3d 763 (Ariz.App.Div. 2 2000).