Borowsky v. Healthcare
| Decision Date | 16 December 2010 |
| Docket Number | 1 CA-CV 10-0114 |
| Parties | LISA BOROWSKY, Plaintiff/Appellant, v. SCOTTSDALE HEALTHCARE CORPORATION, an Arizona corporation; MICHAEL W. EDER, M.D. AND JANE DOE EDER, husband and wife, Defendants/Appellees. |
| Court | Arizona Court of Appeals |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Not for Publication-Rule 28, Arizona Rules of Civil Appellate Procedure)
The Honorable Robert H. Oberbillig, Judge
Carmichael & Powell, P.C.
By David J. Sandoval
Attorneys for Plaintiff/Appellant
Phoenix
Jones, Skelton & Hochuli, P.L.C.
By William R. Jones, Jr., Eileen Dennis GilBride,
and Jennifer A. Baker
Attorneys for Defendant/Appellee Scottsdale
Healthcare Corporation
Phoenix
¶1 Appellant Lisa Borowsky ("Borowsky") appeals the trial court's decision granting summary judgment for Scottsdale Healthcare Corporation ("SHC").1 Borowsky argues that the court erred in finding that there was insufficient evidence for a reasonable jury to find that SHC's nursing staff contributed to her injuries. We agree and reverse the court's order.
¶2 In May of 2005, Borowsky went to a SHC hospital complaining of symptoms consistent with appendicitis. The emergency on-call surgeon, Dr. Eder, diagnosed Borowsky with acute appendicitis and performed an emergency appendectomy on her the next day.
¶3 In the days after the surgery, Borowsky experienced discomfort in her abdomen, blood in her stool, and a fever. Dr.Eder ordered a CT scan of her abdomen and that the nurses report back to him if Borowsky's Hemocrit and Hemoglobin ("H&H") blood levels dropped below 10, which could indicate internal bleeding. On the day she was discharged, Borowsky's H&H levels dropped to 8.9. Dr. Eder testified during his deposition that he was not told of Borowsky's low H&H levels, 3 and he discharged her from the hospital.
¶4 Later on that same day, Borowsky went to the Mayo Clinic hospital.4 The Mayo Clinic tested Borowsky's H&H levels, which had increased to 9.6. Borowsky underwent immediate tests, including a colonoscopy and laparoscopy, which revealed changes in the mucosal tissue and possible death of living tissue ("necrosis") in the intestinal area around the incision due to aloss of blood supply ("ischemia"). A surgeon operated on Borowsky to repair the damage caused from the first surgery, which was that Borowsky's cecum and ileocolic vessels (parts of the intestines) were "incorporated" into the "fascial closure" of Borowsky's incision.
¶5 Borowsky filed a complaint against SHC and Dr. Eder alleging medical malpractice. She supported her claim with two experts: one to testify about breach of standard of care, and the other, Dr. Hiyama, to testify about proximate causation as to the conduct of Dr. Eder and SHC's employees.
¶6 In his deposition, Dr. Eder testified that he did not recall receiving reports of Borowsky's H&H levels, but he knew for sure that he was not told her H&H levels fell to 8.9.5 Dr. Eder stated that he would not have discharged Borowsky had he known about her low H&H levels out of concern for internal bleeding.6 He further testified that someone suffering from ischemia should be operated on as soon as possible:
¶7 In his deposition, Dr. Hiyama testified that he believed he was hired to "serve as the surgical expert regarding the care that was delivered to Miss Borowsky by Dr. Eder." Dr. Hiyama's opinion was that:
Dr. Eder's refusal to authorize a gastrointestinal CAT scan as specifically requested by Miss Borowsky, cancellation of Miss Borowsky's scheduled consultation with another surgeon and ultimate discharge of Miss Borowsky from Scottsdale Healthcare created the delay that may have contributed to the resulting ischemia and necrosis ofMiss Borowsky's cecum, a portion of the terminal ileum and a portion of the colon.
Dr. Hiyama would not offer an opinion about whether SHC's nurses did anything to cause Borowsky harm during her hospital stay because he did not "know the information that was really conveyed to [Dr. Eder]."7 He testified, however, that someone suffering from ischemia should be operated on as soon as possible, because, "the longer [ischemia] occurs or consists and is not reversed or corrected, the higher the chance that the tissue damage that occurs will increase." Dr. Hiyama also testified that it would be speculation for him to consider whether "the events that transpired at Mayo Clinic [would] have occurred at Scottsdale" if Borowsky had not been discharged.
¶8 SHC filed a motion for summary judgment, alleging that Borowsky "[did] not have admissible evidence to prove" that SHC's employees proximately caused Borowsky's injuries. SHC cited Dr. Hiyama's refusal to testify that the nurses' actions or failure to act caused Borowsky harm. SHC argued that Dr. Hiyama was Borowsky's only causation witness and the time had passed for disclosure of other expert witnesses.
¶9 Borowsky urged the trial court to consider that Dr. Eder testified that no one told him about Borowsky's low 8.9 H&H levels, and if they had, he would not have discharged her. She further argued that it was Dr. Hiyama's opinion that the discharge of Borowsky from SHC caused a delay that may have contributed to her injuries. Borowsky argued that "it [was] axiomatic that any breach that contributed to the delay... would also be a contributing factor to the resulting necrosis," and "[a]ssuming Dr. Eder's testimony to be true, it is clear that SCH's nurses and staff directly contributed to the delay" that led to Borowsky's injuries. Thus, she asserted
¶10 At oral argument, the trial court noted its concern that Borowsky lacked expert testimony that the nurses' actions caused or contributed to the premature discharge of Borowsky, which delayed her treatment and resulted in necrosis of her intestinal tissue. The court granted summary judgment for SHC, holding that under Orme School, there was not enough evidence "for a reasonable juror to find in favor of [Borowsky] as to the issue of causation against the hospital." Borowsky timely filedher notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003).
¶11 We review de novo a trial court's grant of summary judgment "on the basis of the record made in the trial court," applying "the same standard as that used by the trial court." United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App. 1990). In doing so, we determine whether any genuine issues of material fact exist and whether the trial court correctly applied the law. L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App. 1997). Summary judgment is appropriate when the evidence presents no genuine issue of material fact, and the movant is entitled to a judgment as a matter of law. Ariz. R. Civ. P. 56(c)(1); Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). A trial court must not grant summary judgment unless "the facts produced in support of the claim or defense have so little probative value... that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008. We review the facts in the light most favorable to the party against whom summary judgment was granted. Riley, Hoggatt & Suagee, P.C., v. English, 177 Ariz. 10, 12-13, 864 P.2d 1042, 1044-45 (1993).
¶12 On appeal, Borowsky argues that the trial court erred in granting summary judgment after it determined that there was insufficient evidence for a reasonable jury to find that SHC's nursing staff contributed to Borowsky's injuries. We agree.
¶13 Pursuant to A.R.S. § 12-563 (2003), a party suing a healthcare provider for medical malpractice must prove that the healthcare provider failed to exercise the relevant degree of care and that failure proximately caused the injury, "increased the risk of harm," or "deprived plaintiff of some significant chance of... better recovery." Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 606, 688 P.2d 605, 614 (1984); see also Evans v. Bernhard, 23 Ariz. App. 413, 415, 533 P.2d 721, 723 (App. 1975). Proximate cause must ordinarily be established by expert medical testimony 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). A court should not direct judgment based on lack of proximate causation when the jury can find causation based upon "the most favorable portions" of witnesses' testimony. See Nichols v. City of Phx., 68 Ariz. 124, 139, 202 P.2d 201, 211 (1949) (quoting Dieterle v. Yellow Cab Co., 93 P.2d 171, 173 (Cal. Dist. Ct. App. 1939)).
¶14 The parties do not dispute...
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