Cornerstone Hosp. of Se. Ariz., L.L.C. v. Marner

• Decision Date: 07 December 2012
• Docket Number: No. 2 CA–SA 2012–0067.,2 CA–SA 2012–0067.
• Citation: Cornerstone Hosp. of Se. Ariz., L.L.C. v. Marner, 231 Ariz. 67, 290 P.3d 460, 649 Ariz. Adv. Rep. 6 (Ariz. App. 2012)
• Parties: CORNERSTONE HOSPITAL OF SOUTHEAST ARIZONA, L.L.C., a Delaware limited liability company, Petitioner, v. Hon. James E. MARNER, Judge of the Superior Court of the State of Arizona, in and for the COUNTY OF PIMA, Respondent, and Ernest H. Blackburn, Personal Representative of the Estate of Billie Jo Blackburn, on behalf of the Estate of Billie Jo Blackburn, Real Party in Interest.
• Court: Arizona Court of Appeals

231 Ariz. 67

290 P.3d 460

649 Ariz. Adv. Rep. 6

CORNERSTONE HOSPITAL OF SOUTHEAST ARIZONA, L.L.C., a Delaware limited liability company, Petitioner,

v. Hon. James E. MARNER, Judge of the Superior Court of the State of Arizona, in and for the COUNTY OF PIMA, Respondent,andErnest H. Blackburn, Personal Representative of the Estate of Billie Jo Blackburn, on behalf of the Estate of Billie Jo Blackburn, Real Party in Interest.

No. 2 CA–SA 2012–0067.

Court of Appeals of Arizona, Division 2, Department B.

Dec. 7, 2012.

Campbell, Yost, Clare & Norell, P.C. By Margaret F. Dean, Phoenix, Attorneys for Petitioner.

Law Office of Scott E. Boehm, P.C. By Scott E. Boehm, and Wilkes & McHugh, P.A. By Melanie L. Bossie, Phoenix, Attorneys for Real Party in Interest.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 In this special action, we are asked to decide whether A.R.S. § 12–2604, which prescribes the qualifications of a standard-of-care expert in an action involving allegations of medical negligence, applies to an action brought pursuant to the Adult Protective Services Act (APSA), A.R.S. §§ 46–451 through 46–459. We conclude § 12–2604 does apply to an APSA action that is based on allegations of medical negligence involving a vulnerable adult, and that the respondent judge erred by concluding otherwise. But, because the respondent reached the correct result in any event, finding the plaintiff/real party in interest's expert qualified to provide nursing standard-of-care testimony, we deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In July 2010, real party in interest Ernest Blackburn, personal representative of the estate of his deceased wife, Billie Jo Blackburn, ¹ filed a complaint pursuant to APSA against multiple defendants, including petitioner Cornerstone Hospital of Southeast Arizona, L.L.C. (Cornerstone), a specialty hospital licensed as a long-term acute care (LTAC) facility.² Blackburn alleged that after a period of treatment at a Tucson hospital in early 2008, Billie Jo, a vulnerable adult as defined by APSA, see§ 46–451(A)(9), was transferred to Cornerstone where she received further treatment, care, and rehabilitationbetween April 17 and July 2, 2008, that fell below the applicable standard of care. Blackburn alleged Billie Jo was “deprived of proper nursing and medical services,” which resulted in “the following injuries and harm: a) the development and worsening of pressure sores, including but not limited to a horrific pressure sore to her coccyx; b) infections; and c) dehydration and malnourishment.” Blackburn asserted the acts or omissions of the various health care professionals involved in Billie Jo's care “constitute a breach of [their] duties and are a deviation from the applicable standard of care in reckless disregard of” her needs, “constituting abuse and neglect of a vulnerable adult as defined by statute, giving rise to a cause of action” under APSA.

¶ 3 In February 2010, Blackburn filed the certification required by A.R.S. § 12–2603, asserting, “Although it does not appear that nursing homes are health care professionals, ... expert opinion testimony may be necessary to prove standard of care or liability for the claims in this case.” In further compliance with that statute, Blackburn filed the affidavit of his designated expert, Joyce Black, and attached her curriculum vitae. Black avowed she is a registered nurse in the State of Nebraska and has an associate's degree in nursing, a bachelor of science degree in nursing, a masters degree in medical-surgical nursing, a doctoral degree or Ph.D. in nursing, and extensive clinical, research, and teaching experience in the area of wound care, particularly pressure ulcers. Black avowed she had defended her Ph.D. dissertation on the subject of the healing rates of diabetic and non-diabetic patients with pressure ulcers. She also stated that, based on her “training, education and experience,” she was able to “determine whether or not appropriate standards of care were met, and whether nursing home residents' rights were deprived, violated, or infringed upon.” And, she avowed, she had reviewed the records regarding Billie Jo's stay at Cornerstone and concluded, “the acts, errors and omissions of staff ... violated minimum standards of care and constituted a conscious indifference to Billie Jo Blackburn's rights as a resident and a patient throughout her residency.” Black then specified the various acts and omissions as they related to Billie Jo's injuries and medical condition.

¶ 4 In May 2012, Blackburn filed his third supplemental disclosure of expert witnesses and opinions in which he listed Black as his only standard-of-care witness. He reviewed Black's educational and professional background, identified the documents she had reviewed in connection with the case, and summarized the areas about which he expected her to testify. Black's anticipated testimony included her opinion that the defendants had violated “minimum standards of care” and the consequences of those violations with respect to the injuries and harm Billie Jo had sustained. Cornerstone filed a motion to preclude certain testimony by Black on the ground that she was not qualified under § 12–2604 or Rule 702, Ariz. R. Evid., to give expert “opinions about nutritionist standards of care, nursing administration standards of care (including staffing), certified nursing assistant standards of care, physician standards of care, and the definitions of abuse and neglect.” Cornerstone maintained Black did not have “formal education” in wound care and that her “bedside nursing care” experience “is not specific to wound care.” Cornerstone requested that the respondent judge preclude Black from “offer[ing] opinions on subjects and in areas for which she has no education, training, or experience.”

¶ 5 After Blackburn filed a response and Cornerstone filed a reply, the respondent judge granted Cornerstone's motion with regard to hospital administration, but rejected it as to other areas about which Black was expected to testify. Although respondent found § 12–2604 does not apply to claims asserted under APSA, he nevertheless concluded Black was qualified under § 12–2604 to give her expert opinion on the subject of nursing. The respondent rejected Cornerstone's request to limit Black's testimony to wound care, pursuant to Rule 702, finding such a limitation “unduly restrictive.” The respondent then evaluated Black's qualifications under Rule 702 with regard to the other areas Blackburn had identified, agreeing with Cornerstone that Black was not qualified to provide standard-of-care opinions about the conduct of nutritionists who had cared for Billie Jo, but finding she could testify about nursing staff's interactions with nutritionists. The respondent found Black qualified to testify about charge nurses but not about hospital nurse staffing issues, finding insufficient foundation for such testimony under Rule 703, Ariz. R. Evid. The respondent also found Black qualified to testify about the standard of care for Certified Nursing Assistants (CNAs) because they “are, by definition, assistants to the nursing staff.” Cornerstone challenges the respondent's ruling in its special action petition.

SPECIAL ACTION JURISDICTION

¶ 6 “Whether to accept special action jurisdiction is for this court to decide in the exercise of our discretion.” Potter v. Vanderpool, 225 Ariz. 495, ¶ 6, 240 P.3d 1257, 1260 (App.2010). Although we exercise that discretion cautiously when asked to intervene in pretrial rulings relating to the admissibility of evidence, rulings that are committed to a trial judge's “broad discretion,” Escamilla v. Cuello, 230 Ariz. 202, ¶ 20, 282 P.3d 403, 407 (2012), there are compelling reasons that we do so here.

¶ 7 First, as a pretrial evidentiary ruling, the challenged order is interlocutory in nature. See Potter, 225 Ariz. 495, ¶ 7, 240 P.3d at 1260 (acceptance of special action jurisdiction appropriate when challenged order interlocutory). Consequently, there is no direct review of such an order by appeal. See Ariz. R.P. Spec. Actions 1(a) (special action appropriate when no equally plain, speedy, or adequate remedy by appeal exists). Second, although the decision whether to admit expert testimony is committed to a trial judge's sound discretion, Escamilla, 230 Ariz. 202, ¶ 20, 282 P.3d at 407, here, the respondent judge was required to resolve questions of law in exercising that discretion and ruling on Cornerstone's motion. When a special action raises purely legal questions, which we review de novo, Awsienko v. Cohen, 227 Ariz. 256, ¶ 10, 257 P.3d 175, 177 (App.2011), it is particularly appropriate for us to accept jurisdiction, Sierra Tucson, Inc. v. Lee, 230 Ariz. 255, ¶ 7, 282 P.3d 1275, 1277 (App.2012).

¶ 8 Most importantly, the issues presented in this case involve legal questions that are of first impression and statewide importance regarding the interpretation and application of § 12–2604; the Medical Malpractice Act (MMA), A.R.S. §§ 12–561 through 12–594; and APSA. See Lear v. Fields, 226 Ariz. 226, ¶ 6, 245 P.3d 911, 914 (App.2011) (accepting special action jurisdiction because issues involved “interpretation of a newly enacted statute that affects the admissibility of expert testimony in all trials, a pure question of law”); see also Lo v. Lee, 230 Ariz. 457, ¶¶ 1–2, 286 P.3d 801, 802 (App.2012) (accepting special action jurisdiction to review interlocutory denial of motion for summary judgment and motion to disqualify standard-of-care expert in medical malpractice action to address questions of law regarding qualifications required of expert under § 12–2604 for specialists).

¶ 9 Although we conclude the respondent judge erred in interpreting the law, after soundly exercising his discretion, he correctly found Black qualified with respect to most of the areas about which she is expected to testify and we, therefore, deny relief. See Ariz. R.P. Spec. Actions 3(c) (...