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Rasor v. Northwest Hospital LLC

Court of Appeals of Arizona, Second Division

April 24, 2018

Karyn 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 Staring and Judge Eppich concurred.


          ESPINOSA, Judge.

         ¶1 In January 2015, the trial court entered summary judgment in favor of Northwest Medical Center (Northwest or the hospital) in the medical malpractice action filed by Karyn Rasor and her husband (the Rasors). They appealed, and in an opinion filed on May 17, 2016, we concluded the Rasors' proffered expert witness was unqualified to give standard-of-care testimony; however, we reversed the trial court's denial of the Rasors' request for additional time to secure a new expert and vacated its summary judgment order. Rasor v. Nw. Hosp., LLC (Rasor I), 239 Ariz. 546, ¶¶ 15, 38 (App. 2016).

         ¶2 Upon review, our supreme court agreed that the Rasors' expert did not qualify as a standard-of-care expert but remanded the case to us to determine two additional issues: whether the expert was qualified to testify to causation, or if expert testimony on causation was not required. Rasor v. Nw. Hosp., LLC (Rasor II), 243 Ariz. 160, ¶¶ 3, 29, 32-33 (2017). We conclude the case does call for expert causation testimony and although the Rasors' expert witness was not qualified on the standard of care, she was competent to testify about causation. We therefore remand to the trial court to provide the Rasors an opportunity to file a motion to obtain additional evidence pursuant to Rule 56(d), Ariz. R. Civ. P., and for any other appropriate proceedings.[1]

         Factual and Procedural Background

         ¶3 On appeal from summary judgment, we view the facts in the light most favorable to the party against whom summary judgment was entered. See Wilson v. Playa de Serrano, 211 Ariz. 511, ¶ 2 (App. 2005). The underlying facts describing Karyn's critical care hospitalization at Northwest are detailed in Rasor I, 239 Ariz. 546, ¶¶ 2-4. For present purposes, we note that in July 2011, Karyn underwent open-heart surgery at Northwest, after which she received an intra-aortic balloon pump (IABP) threaded through her femoral artery and requiring the immobilization of her leg. Following surgery, Karyn spent several days in the intensive care unit (ICU), where the nurses eventually discovered a pressure ulcer on her coccyx that ultimately reached "stage IV" and required thirty-one debridement procedures.

         ¶4 Based on Karyn's allegedly permanent pain and other symptoms, the Rasors brought a medical malpractice action against Northwest in July 2013, alleging the hospital had "breached its professional duties . . ., proximately causing the development of a decubitus ulcer" by failing to "appropriately off-load" Karyn and "negligently fail[ing] to timely discover" the ulcer during her intensive care. In support of their claim, the Rasors retained a single expert, a board-certified wound-care nurse, Julie Ho, R.N. In Ho's opinion, Northwest had not adequately repositioned Karyn during recovery, causing the development of a pressure ulcer, which worsened because of the hospital's failure to respond appropriately after discovering it. The Rasors filed a motion to qualify Ho as an expert on the standard of care, causation, and prognosis, or, in the alternative, to be permitted to identify a new expert.

         ¶5Northwest subsequently filed a motion for summary judgment, asserting that Nurse Ho "d[id] not qualify under Arizona Rule of Evidence, Rule 702, A.R.S. § 12-2603, and A.R.S. § 12-2604" to render opinions in this matter such that the Rasors "[we]re unable to establish that [the hospital] breached the applicable standard of care and [the] Complaint should be dismissed." At the hearing on the Rasors' motion, the trial court found that Ho could testify to the standard of care and stated, "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?" However, the court also said, "[W]hat I'm concerned about is whether or not she could testify as to causation, " ultimately concluding that the Rasors could introduce her expert opinion "regarding wound care."

          ¶6 At the oral argument on Northwest's summary judgment motion, the Rasors again asked that they be permitted to find a new expert witness if the trial court determined that Nurse Ho was unqualified. The court, however, denied that request and granted summary judgment without explanation. [2] The Rasors appealed, and as noted above, we concluded that Ho was unqualified as a standard-of-care expert. Our supreme court agreed, but remanded the case for this court to determine whether Ho might nevertheless be qualified to provide expert testimony on causation, or whether this case does not require a causation expert as a matter of law. See Rasor II, 243 Ariz. 160, ¶¶ 8, 29, 32. On remand, we ordered supplemental briefing on "the requisite qualifications for causation experts in medical malpractice cases under Arizona law, " and the parties filed simultaneous briefs.

         Causation Expert Witnesses

         ¶7 Before addressing whether Nurse Ho was qualified to testify to causation in this case, we must determine whether the Rasors needed to provide a causation expert at all. See id. ¶¶ 32-33. "'[U]nless a causal relationship is readily apparent to the trier of fact, ' expert medical testimony normally is required to establish proximate cause in a medical negligence case." Salica v. Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, ¶ 16 (App. 2010), quoting Gregg v. Nat'l Med. Health Care Servs., Inc.,145 Ariz. 51, 54 (App. 1985) (alteration in Salica). In their opening brief before this court, the Rasors asserted "the nature of the risk from the failure to relieve pressure over Ms. ...

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