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Rasor v. Northwest Hospital, LLC

Supreme Court of Arizona

October 18, 2017

Karyn D. Rasor and Donald Miller, Wife and Husband, Plaintiffs/Appellants/Cross-Appellees,
v.
Northwest Hospital, LLC DBA Northwest Medical Center, Defendant/Appellee/Cross-Appellant.

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

         Opinion of the Court of Appeals, Division One 239 Ariz. 546 (App. 2016)

          Kevin E. Miniat (argued), Miniat & Wilson, LPC, Tucson, Attorneys for Karyn D. Rasor and Donald Miller.

          Kari 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.

          OPINION

          BOLICK, JUSTICE.

         ¶1 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.

         I. BACKGROUND

         ¶2 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 injuries.

         ¶3 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 worsened.

         ¶4 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.

         ¶5 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.

         ¶6 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 ...


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