                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                          PHILLIP WOOLBRIGHT,
                             Plaintiff/Appellant,

                                        v.

                     DR. GARY M. PRINCE, M.D., and
                     GARY M. PRINCE, M.D., P.C., an
                     Arizona professional corporation,
                           Defendants/Appellees.

                             No. 1 CA-CV 14-0544
                               FILED 3-29-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-070135
             The Honorable Eileen S. Willett, Judge, Retired

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Law Office of Charles W. Bassett, PLLC, Chandler
By Charles W. Bassett
Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli, PLC, Phoenix
By Eileen Dennis GilBride
Counsel for Defendants/Appellees
                        WOOLBRIGHT v. PRINCE
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.


J O H N S E N, Judge:

¶1           Phillip Woolbright appeals the superior court's judgment
dismissing his claims with prejudice. For the reasons that follow, we affirm
the judgment, as modified.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Woolbright sued Dr. Gary M. Prince, M.D., and Gary M.
Prince, M.D., P.C. (collectively, "Appellees"), alleging medical malpractice,
defamation and violation of the Health Insurance Portability and
Accountability Act ("HIPAA"). Woolbright's claims arose out of Prince's
involvement as a witness in Woolbright's dissolution and custody
proceedings. At the request of Woolbright's ex-wife, Prince, a psychiatrist,
had interviewed the couple's four children on several occasions and
submitted his findings to the court.

¶3             Appellees specially appeared to file a motion to dismiss,
arguing Woolbright's claims had abated and that the complaint failed to
state a claim upon which relief could be granted. After Woolbright did not
timely respond to the motion to dismiss, the superior court granted the
motion, later striking Woolbright's untimely response. Woolbright then
unsuccessfully moved for reconsideration. Woolbright timely appealed.
We have jurisdiction pursuant to Article 6, Section 9 of the Arizona
Constitution and Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1)
(2016).1




1     Absent material revision after the relevant date, we cite a statute's
current version.



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                         WOOLBRIGHT v. PRINCE
                          Decision of the Court

                               DISCUSSION

A.     Dismissal of the Complaint.

       1.     General principles.

¶4              The superior court's order dismissing the complaint does not
specify the precise basis for its decision, but we will affirm the dismissal if
it is correct for any reason. See Sw. Non-Profit Hous. Corp. v. Nowak, 234 Ariz.
387, 391, ¶ 10 (App. 2014).

¶5            We review the dismissal of a complaint for failure to state a
claim de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012).
Dismissal is appropriate only if the plaintiff would not be entitled to relief
under any facts susceptible of proof. Dressler v. Morrison, 212 Ariz. 279, 281,
¶ 11 (2006). We must assume the truth of all well-pled factual allegations
and resolve all reasonable inferences in the plaintiff's favor, but "mere
conclusory statements are insufficient to state a claim upon which relief can
be granted." Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008).

       2.     The medical malpractice claim.

¶6           Woolbright's complaint alleged Prince committed medical
malpractice when he examined the children and "prescribed treatments" for
them without his knowledge or consent. The complaint alleged Prince
thereby damaged Woolbright's relationship with his children and
negatively affected the custody determination in the dissolution
proceeding.

¶7             To sustain a claim for medical negligence, a plaintiff must
prove "the existence of a duty, a breach of that duty, causation, and
damages." Seisinger v. Siebel, 220 Ariz. 85, 94, ¶ 32 (2009). Whether such a
duty exists is a question of law that we review de novo. Stanley v. McCarver,
208 Ariz. 219, 221, ¶ 5 (2004). Although a doctor-patient relationship
imposes a duty on the doctor, "[a] duty may arise even in the absence of a
formal relationship." Ritchie v. Krasner, 221 Ariz. 288, 295, ¶ 12 (App. 2009).

¶8            Woolbright concedes Prince had no doctor-patient
relationship with him, but argues Prince owed him a duty by virtue of
Prince's involvement in Woolbright's dissolution and custody proceedings.
Woolbright largely relies on Stanley, in which our supreme court held a
duty was imposed on a radiologist who reviewed the plaintiff's chest x-ray
as part of a pre-employment screening. Stanley, 208 Ariz. at 223, ¶¶ 13-14.
Woolbright's reliance on Stanley, however, is misplaced. Although the


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                         WOOLBRIGHT v. PRINCE
                          Decision of the Court

doctor in Stanley examined the plaintiff's chest x-ray at the request of the
plaintiff's employer, the doctor effectively undertook to treat the plaintiff
when he did so. The court noted:

       [Defendant] undertook a professional obligation with respect
       to [plaintiff's] physical well being. Having placed himself in
       such a position, his special skill and training made him aware
       of abnormalities in the x-ray that one lacking such training
       could not observe. . . . By virtue of his undertaking to review
       [plaintiff's] x-ray, [defendant] placed himself in a unique
       position to prevent future harm to [plaintiff].

Stanley, 208 Ariz. at 223, ¶¶ 13-14.

¶9            The nature of the duty Woolbright alleges is very different.
He alleges Prince assumed a duty to him by examining the children and
submitting his professional opinion to the court hearing the dissolution.
Prince's alleged examination of the children may have created a duty to the
children akin to that found in Stanley, but Woolbright cites no authority for
the proposition that the conduct he alleges would create a duty to a parent.2

¶10            Woolbright also alleged he did not consent to having Prince
examine the children. But on appeal, Woolbright concedes Prince's services
were obtained at the request of Woolbright's ex-wife. Although he argues
guidelines for court-involved therapy suggest therapists should consult
both parents of a child before initiating treatment, Woolbright offers no
legal authority for his argument that a mental-health practitioner has a legal
duty to obtain formal consent of both parents before undertaking treatment
of a child. As Appellees point out, A.R.S. § 36-2272 (2016) prohibits mental
health treatment of a minor "without first obtaining the written or oral
consent of a parent or legal custodian of the minor child." A.R.S. § 36-
2272(A). Because Woolbright concedes his ex-wife consented to the alleged
treatment, he cannot establish Prince breached a duty owed to him by
failing to obtain his consent to examine the children.




2       To be sure, parents may bring a negligence action on behalf of their
children, but in such a case, the claim arises from the duty owed by the
treating doctor to the patient-child, not from a duty owed to the parents.
See, e.g., Perguson v. Tamis, 188 Ariz. 425 (App. 1996) (surviving parents of
patient brought medical malpractice action on daughter's behalf).
Woolbright's complaint contained no such claim.

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                         WOOLBRIGHT v. PRINCE
                          Decision of the Court

       3.     The defamation claim.

¶11            Woolbright's complaint also alleged Prince "made written
false factual statements about [Woolbright] and communicated them to the
public and others knowing or should have known [sic] that those false
statements would cause [Woolbright or his children] harm." In support of
his allegations, the complaint attached opinion letters written by Prince
detailing his interviews with the children.

¶12            Statements made during judicial proceedings are absolutely
privileged. "A witness is generally afforded an absolute privilege when
testifying in a judicial proceeding." Burns v. Davis, 196 Ariz. 155, 159, ¶ 4
(App. 1999); see Green Acres Tr. v. London, 141 Ariz. 609, 613 (1984). The
privilege applies to witness testimony and reports and consultations "that
are relevant to litigation and are prepared 'as preliminary steps in the
institution or defense of a case.'" Yeung v. Maric, 224 Ariz. 499, 501-02, ¶¶
10-11 (App. 2010) (quoting Darragh v. Superior Court, 183 Ariz. 79, 82 (App.
1995)).

¶13           Woolbright's defamation claim is based on Prince's opinion
letters submitted to the court during the custody proceeding, and contrary
to Woolbright's contention, the privilege exists regardless of whether the
court appointed Prince as an expert in that proceeding. Because the opinion
letters attached to the complaint directly bore on the dissolution
proceeding, they are absolutely privileged, and as a result, Woolbright's
defamation claim fails to state a claim.

       4.     The alleged HIPAA violations.

¶14           Woolbright also alleged Appellees released information
about him and his children to the public in violation of HIPAA. As
Appellees correctly point out, however, HIPAA provides no private right
of action. See Webb v. Smart Document Sols., LLC, 499 F.3d 1078, 1082 (9th
Cir. 2007). For that reason, Woolbright's claim under HIPAA fails as a
matter of law.

B.     Other Arguments.

¶15            Woolbright also argues the court should have treated the
motion to dismiss as a motion for summary judgment pursuant to Arizona
Rule of Civil Procedure 12(b), which would have allowed him a longer time
to file a response. Rule 12(b) provides that if a motion to dismiss for failure
to state a claim presents "matters outside the pleading . . . and not excluded
by the court, the motion shall be treated as one for summary judgment and


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                         WOOLBRIGHT v. PRINCE
                          Decision of the Court

disposed of as provided in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such a motion by Rule
56." Ariz. R. Civ. P. 12(b). The rule, however, "does not require summary
judgment treatment of a motion that attaches 'extraneous matters [that]
neither add to nor subtract from the deficiency of the pleading.'" Strategic
Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 63, ¶ 8 (App.
2010) (quoting Brosie v. Stockton, 105 Ariz. 574, 576 (1970)).

¶16            Woolbright argues the motion to dismiss went beyond the
allegations in the complaint because it discussed his dissolution proceeding
and cited court materials relating to that proceeding. The allegations in
Woolbright's complaint, however, centered on Prince's evaluation of the
children in connection with the dissolution. The documents Appellees filed
with their motion to dismiss, all from the public record, concerned the
dissolution, including the same opinion letters that Woolbright filed with
his complaint. For this reason, the court was not required to treat the
motion to dismiss as a motion for summary judgment. See Strategic, 224
Ariz. at 64, ¶ 13 ("[A] Rule 12(b)(6) motion that presents a document that is
a matter of public record need not be treated as a motion for summary
judgment.").3

¶17            Woolbright also argues the court erred by striking his
response to the motion to dismiss because he demonstrated excusable
neglect for its untimely filing. This argument presumes the court granted
the motion to dismiss because Woolbright did not timely respond. See Ariz.
R. Civ. P. 7.1(b) ("[I]f the opposing party does not serve and file the required
answering memorandum . . . such non-compliance may be deemed a
consent to the denial or granting of the motion, and the court may dispose
of the motion summarily.") Because we affirm dismissal of the complaint
on the merits for failure to state a claim, we need not address this argument.

¶18           Finally, Woolbright argues the superior court erred by failing
to grant him leave to amend. But leave to amend need not be granted when
it would be futile. See Walls v. Ariz. Dep't of Pub. Safety, 170 Ariz. 591, 597
(App. 1991). Given Woolbright's concession that he had no doctor-patient
relationship with Prince, leave to amend his negligence claim against Prince
would be futile. As for the defamation claim, Woolbright argues Prince
defamed him by making statements outside the dissolution proceeding that
would be unprotected by the judicial-proceeding privilege. Accordingly,

3      Woolbright also fails to identify any evidence he would have offered
in response to Appellees' motion to dismiss, had the court given him notice
it was going to treat the motion as one for summary judgment.

                                        6
                       WOOLBRIGHT v. PRINCE
                        Decision of the Court

the order of dismissal should have granted Woolbright leave to amend his
defamation claim to allege that Prince defamed him by making statements
not protected by the privilege afforded to statements made in judicial
proceedings. For that reason, we affirm the judgment of dismissal of the
defamation claim but modify the judgment so that the dismissal of the
defamation claim is without prejudice.

                            CONCLUSION

¶19          For the foregoing reasons, we affirm the superior court's
judgment, except that we modify the judgment to provide that the dismissal
of the defamation claim is without prejudice.




                                  :ama




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