Karyn 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 The Honorable Leslie
Miller, Judge No. C20133700
of the Court of Appeals, Division One 239 Ariz. 546 (App.
E. Miniat (argued), Miniat & Wilson, LPC, Tucson,
Attorneys for Karyn D. Rasor and Donald Miller.
B. Zangerle, Mary G. Isban (argued), Robert C. Stultz,
Campbell, Yost, Clare & Norell, P.C., Phoenix, Attorneys
for Northwest Hospital, LLC, dba Northwest Medical Center.
Stanley G. Feldman, Miller, Pitt, Feldman & McAnally,
P.C., Tucson; JoJene E. Mills, Law Office of JoJene Mills,
P.C., Tucson; David L. Abney, Ahwatukee Legal Office, P.C,
Phoenix, Attorneys for Amicus Curiae Arizona Association for
Justice/Arizona Trial Lawyers Association.
JUSTICE BOLICK authored the opinion of the Court, in which
CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and
JUSTICES BRUTINEL, TIMMER, GOULD, and LOPEZ joined.
This case involves challenges to qualifications for expert
witnesses in a medical malpractice action. We hold that a
defendant may move for summary judgment based on a proposed
expert's lack of requisite qualifications under A.R.S.
§ 12-2604 without first challenging the sufficiency of
the expert affidavit under A.R.S. § 12-2603. We also
hold that, pursuant to § 12-2604, an expert is
unqualified to testify on standard of care if she did not
engage in active clinical practice or teaching during the
year immediately preceding the injury.
Plaintiff Karyn Rasor underwent surgery at Northwest Medical
Center ("NWMC"). After the operation, NWMC placed
Rasor in a medically induced coma in the intensive care unit
("ICU"). During this time, Rasor developed a
pressure ulcer over her tailbone. The injury worsened,
ultimately requiring thirty-one debridement procedures and,
Rasor claims, resulting in permanent residual damage. Rasor
filed this medical malpractice action against NWMC, alleging
that the preventative wound care provided by ICU nursing
staff, specifically faulty repositioning, caused her
After commencing the action, Rasor filed a certification
verifying the need for expert testimony to prove her claims
pursuant to § 12-2603(A). Rasor subsequently filed a
preliminary expert affidavit pursuant to § 12-2603(B)
identifying Julie Ho, RN, as her expert on standard of care
and causation. Ho was a certified wound care nurse who worked
at a long-term acute care facility performing admission
assessments, reassessments, and care planning during the year
preceding Rasor's injury. She opined that NWMC had failed
to adequately reposition Rasor during her recovery, thereby
causing a pressure ulcer to develop, and failed to take
necessary steps after discovering the ulcer, which then
After the expert disclosure deadline, NWMC deposed Ho. Rasor
subsequently filed a preemptive motion to qualify Ho as an
expert on standard of care, causation, and prognosis. Rasor
alternately asked to identify another expert if the court
precluded any of Ho's opinion evidence.
Shortly after Rasor filed her motion, NWMC moved for summary
judgment, arguing that Ho did not qualify as an expert on
standard of care or causation under § 12-2604, and
therefore Rasor could not satisfy her burden on those
elements of her claim and the case should be dismissed. Among
other things, NWMC argued that Rasor needed an expert who was
a certified ICU nurse, not a wound-care specialist.
At oral argument on Rasor's motion, the trial court found
that Ho was qualified to testify about the standard of care
for wounds and said, "I'm going to let you go with a
wound care witness rather than an ICU nurse. You can take
that to the bank, okay?" But the judge also expressed
that "what I'm concerned about is whether or not she
could testify as to causation." The court subsequently
ruled that Rasor was permitted to introduce Ho's ...