KAREN D. RASOR AND DONALD MILLER, WIFE AND HUSBAND, Plaintiffs/Appellants/Cross-Appellees,
NORTHWEST HOSPITAL, LLC DBA NORTHWEST MEDICAL CENTER, Defendant/Appellee/Cross-Appellant
from the Superior Court in Pima County. No. C20133700. The
Honorable Leslie Miller, Judge.
& Wilson, LPC, Tucson, By Kevin E. Miniat, Counsel for
Yost, Clare & Norell, P.C., Phoenix, By Kari B. Zangerle and
Mary G. Isban, Counsel for Defendant/Appellee/Cross&
Espinosa authored the opinion of the Court, in which
Presiding Judge Howard and Judge Staring concurred.
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.
and Procedural Background
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 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.
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. 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."
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. 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.
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. . . 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."
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 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).
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
(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).
of Expert Witness
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 NWMC's 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.
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 ...