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St. George v. Plimpton

Court of Appeals of Arizona, First Division

November 29, 2016

KORTNEY RAE ST. GEORGE and JOHN ST. GEORGE, wife and husband, Plaintiffs/Appellants,
v.
CHARLES STEVEN PLIMPTON, M.D., individually; C. STEVEN PLIMPTON M.D., P.C., an Arizona professional corporation; ELLEN MARIE FRANKLIN, CNM, individually, Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV2012-005446 The Honorable Patricia A. Starr, Judge

         AFFIRMED

         COUNSEL

          Rivera Law Group PC, Phoenix By Sal J. Rivera Counsel for Plaintiffs/Appellants

          Kent & Wittekind PC, Phoenix By Richard A. Kent and Cynthia Y. Patane Co-Counsel for Plimpton Defendants/Appellees

          Jones, Skelton & Hochuli PLC, Phoenix By Eileen Dennis GilBride Co-Counsel for Plimpton Defendants/Appellees

          Campbell Yost Clare & Norell PC, Phoenix By Stephen C. Yost Counsel for Defendant/Appellee Ellen Marie Franklin

          Presiding Judge Andrew W. Gould delivered the opinion of the Court, in which Judge Peter B. Swann and Judge Patricia A. Orozco joined.

          OPINION

          Andrew W. Gould, Presiding Judge

         ¶1 Kortney Rae St. George ("St. George") and John St. George (collectively, "the St. Georges") appeal from the superior court's order granting summary judgment to Charles Steven Plimpton, M.D. and C. Steven Plimpton, M.D., P.C. (collectively "Dr. Plimpton") and Ellen Marie Franklin, CNM ("Nurse Franklin"). For the following reasons, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 This medical malpractice case is based on obstetrical and nurse-midwifery services rendered to St. George. The St. Georges allege Nurse Franklin, a certified nurse midwife, injured St. George by negligently applying pubic pressure during the delivery of her baby.

         ¶3 On April 6, 2012, the St. Georges filed a medical malpractice action against Dr. Plimpton and Nurse Franklin. [1] The St. Georges also alleged a separate claim for negligent supervision against Phoenix Baptist Hospital.

         ¶4 In January 2013, the St. Georges filed a certification stating that expert testimony was necessary to prove their medical malpractice claims. See Ariz. Rev. Stat. ("A.R.S.") section 12-2603(A) (requiring a claimant in a medical malpractice action to certify, at the time her claim is filed and served, "whether or not expert opinion testimony is necessary to prove the health care professional's standard of care or liability for the claim.") On February 22, 2013, the St. Georges disclosed that Dr. Harry Watters ("Dr. Watters"), a board-certified obstetrician/gynecologist, would testify as their standard of care expert for both Dr. Plimpton and Nurse Franklin.

         ¶5 In March 2013, the St. Georges disclosed Dr. Watters' preliminary expert opinion affidavit as required by A.R.S. § 12-2603(B). In his affidavit, Dr. Watters avowed that he has "supervised Certified Nurse-MidWifes (CFM) throughout [his] career, " and described various deviations in the standard of care by Nurse Franklin. Dr. Watters also asserted there was "inadequate doctor supervision of" Nurse Franklin, and "[t]he doctor should have been much more involved in this traumatic delivery."

         ¶6 Dr. Watters was deposed in October 2014. At his deposition, Dr. Watters testified that, in his opinion, Nurse Franklin fell below the standard of care for a certified nurse midwife. Dr. Watters also testified that he has worked with and supervised nurse mid-wives throughout his career, but has never practiced as a nurse-midwife.

         ¶7 During his deposition, Dr. Watters also testified that Dr. Plimpton's "relationship" with Nurse Franklin fell below the standard of care. However, Dr. Watters could not specify any act or omission by Dr. Plimpton that fell below the standard of care as to his treatment of St. George. Specifically, Dr. Watters testified:

Q: So as you sit here today, you cannot state, to a reasonable degree of probability, that Dr. Plimpton actually ...

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