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Rasor v. Northwest Hospital, LLC

Court of Appeals of Arizona, Second Division

May 17, 2016

Karen D. Rasor and Donald Miller, wife and husband, Plaintiffs/Appellants/Cross-Appellees,
Northwest Hospital, LLC dba Northwest Medical Center, Defendant/Appellee/Cross-Appellant.

         Appeal from the Superior Court in Pima County No. C20133700 The Honorable Leslie Miller, Judge

          Miniat & Wilson, LPC, Tucson By Kevin E. Miniat Counsel for Plaintiffs/Appellants/Cross-Appellees

          Campbell, Yost, Clare & Norell, P.C., Phoenix By Kari B. Zangerle and Mary G. Isban Counsel for Defendant/Appellee/Cross-Appellant

          Judge Espinosa authored the opinion of the Court, in which Presiding Judge Howard and Judge Staring concurred.


          ESPINOSA, Judge

         ¶1 In this medical malpractice action, appellants Karyn Rasor and her husband, Donald Miller, (hereafter referred to as the Rasors) appeal the trial court's grant of summary judgment in favor of appellee Northwest Medical Center (NWMC or "the hospital") and its rulings on certain discovery and the denial of leave to secure additional experts. NWMC cross-appeals, asserting the court abused its discretion by ordering it to produce certain patient records. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

         Factual and Procedural Background

         ¶2 In reviewing a grant of summary judgment, we view the evidence and all legitimate inferences therefrom in the light most favorable to the nonmoving party. See Gorney v. Meaney, 214 Ariz. 226, 2, 150 P.3d 799, 801 (App. 2007). From July 7 to July 29, 2011, Rasor, then fifty-one years old, was a patient at NWMC, with "a long and complicated past medical history." Rasor was diagnosed with a faulty mitral valve, coronary artery disease, and congestive heart failure. On July 18, she underwent open-heart surgery lasting over seven hours during which she lay supine. Shortly after the procedure and while in transit to her hospital bed, Rasor suffered a cardiac arrest requiring CPR[1] followed by the insertion of an intra-aortic balloon pump (IABP). The IABP was threaded through the femoral artery in Rasor's leg to her aorta, requiring that her leg be immobilized.

         ¶3 Rasor, while connected to an external pacemaker, the balloon pump console, various intra-venous lines, and a ventilator, was transported to the intensive care unit (ICU) where she was the sole patient of Nurse Michael Farrand, RN.[2] At his deposition, Farrand testified, "[a]nything that deviates the patient's position can theoretically cause . . . the actual balloon on the end of the pump, to go out of place" and "you have to be just extremely careful when you move the patient that the lines don't get kinked, that nothing gets pulled."

         ¶4 The IABP was removed on July 21. Farrand described how, during its removal, the patient's catheterized leg must be clamped to the bed so tightly that for the first five minutes the patient's foot turns blue, with the clamp slowly released over the course of an hour to allow the blood to clot. Thereafter, the patient must lie flat for eight hours so as not to dislodge the clot. On July 22, another ICU nurse noted a discoloration to Rasor's coccyx which she described as a suspected deep-tissue injury, a category of pressure ulcer. [3] On July 26, Rasor underwent a cardiac catheterization lasting over an hour and after which she was required to keep her leg straight for six hours. On July 27, the nursing staff requested a consult by NWMC's wound-care department and a wound-care nurse provided Rasor with a specialty mattress. Rasor's pressure ulcer ultimately reached "stage IV, " eventually requiring thirty-one debridement procedures and resulting in pain and symptoms alleged to be permanent.

         ¶5 In July 2013, the Rasors brought a medical malpractice action against NWMC, alleging that during Rasor's hospitalization NWMC had "breached its professional duties . . ., proximately causing the development of a decubitus ulcer" by failing to "appropriately off-load[4] . . . Rasor" and "negligently fail[ing] to timely discover" the ulcer. The Rasors retained one expert, a board-certified, wound-care nurse, Julie Ho, R.N., and filed a preemptive motion seeking to introduce Ho's expert opinion testimony concerning standard of care, causation, and prognosis. They also filed a motion for partial summary judgment alleging the hospital's failure to treat the pressure ulcer for five days after its discovery had violated the standard of care. NWMC then filed its motion for summary judgment, asserting that the Rasors' "standard of care/causation expert does not qualify under Arizona Rule of Evidence, Rule 702, A.R.S. § 12-2603, and A.R.S. § 12-2604 to render standard of care or causation opinions in this matter" and consequently the Rasors "are unable to establish that [the hospital] breached the applicable standard of care and [the] Complaint should be dismissed."

         ¶6 In December 2014, the trial court ruled that the Rasors were permitted to introduce Ho's "expert opinion . . . regarding wound care, " but deferred the remaining issues until the hearing on NWMC's motion for summary judgment. In January 2015, the court denied the Rasors' motion for partial summary judgment, granted NWMC's motion for summary judgment and denied the Rasors' request to secure a new expert. A formal judgment bearing Ariz. R. Civ. P. 54(c) language was entered, dismissing the Rasors' complaint with prejudice, and both parties appealed. This court has jurisdiction over the Rasors' appeal and NWMC's cross-appeal pursuant to A.R.S. §§ 12-120.21 (A)(1) and 12-2101 (A)(1).

         Summary Judgment Ruling

         ¶7 Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review de novo a trial court's grant of summary judgment and view the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the motion. Felipe v. Theme Tech Corp., 235 Ariz. 520, ¶ 31, 334 P.3d 210, 218 (App. 2014); see also Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).

         ¶8 To establish medical malpractice, a plaintiff must prove negligence by showing that the health care provider fell below the standard of care and that such deviation from the standard of care proximately caused the claimed injury. Ryan v. San Francisco Peaks Trucking Co., 228 Ariz. 42, ¶ 23, 262 P.3d 863, 869-70 (App. 2011). Section 12-563, A.R.S., provides the following as the necessary elements of proof:

(1) The health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.
(2) Such failure was a proximate cause of the injury.

Id.; see also Seisinger v. Siebel, 220 Ariz. 85, ¶ 32, 203 P.3d 483, 492 (2009). Typically, the standard of care must be established by expert medical testimony. Ryan, 228 Ariz. 42, ¶ 23, 262 P.3d at 869-70; see also Boyce v. Brown, 51 Ariz. 416, 421, 77 P.2d 455, 457 (1938) (noting established law that "negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical testimony" unless negligence grossly apparent). Expert medical testimony is also generally required to establish proximate cause unless a causal relationship is readily apparent to the trier of fact. Gregg v. Nat'l Med. Health Care Servs., Inc., 145 Ariz. 51, 54, 699 P.2d 925, 928 (App. 1985).

         Qualification of Expert Witness

         ¶9 The first issue on appeal is whether the Rasors' expert witness, Nurse Ho, was qualified to testify as a standard of care expert pursuant to A.R.S. § 12-2604. The Rasors' medical negligence claim centered on the care provided by NWMCs ICU nurses between July 19 and July 22. Ho opined that NWMC had failed to reposition Rasor during her recovery, proximately causing the pressure ulcer to develop, and failed to order a wound-care consultation and specialty mattress after discovering the pressure ulcer, causing it to worsen. Ho was the Rasors' sole expert as to standard of care, causation, and prognosis. NWMC contends, as it did below in its motion for summary judgment, that while Ho may be an expert on wound care, she is not an ICU nurse and such a nurse is a specialist under § 12-2604. The Rasors respond that Ho's opinions, together with testimony by the ICU nurses, provided sufficient evidence of the standard of care. "Apart from issues of statutory interpretation, which we review de novo, we review trial court determinations on expert qualifications for an abuse of discretion." Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 30, 296 P.3d 42, 50 (2013). This standard of review applies to admissibility questions in summary judgment proceedings. Id.

         ¶10 In a medical malpractice action, a health professional may provide expert testimony on the appropriate standard of practice or care only if he or she is licensed and meets the following criteria, in relevant part:

1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty.
2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person's professional time to . . . the following:
(a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty.
3. If the defendant is a general practitioner, the witness has devoted a majority of the witness's professional time in the year preceding the occurrence giving rise ...

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