Craft v. Trainor

• Decision Date: 04 June 2013
• Docket Number: 1 CA-CV 11-0761
• Parties: JELENA P. CRAFT, as surviving daughter individually and on behalf of the statutory beneficiaries of the Arizona Wrongful Death Act, Plaintiff/Appellant, v. MICHAEL TRAINOR, D.O., and JANE DOE TRAINOR, husband and wife; ORTHOPAEDIC SPECIALISTS OF CENTRAL ARIZONA; YAVAPAI REGIONAL MEDICAL CENTER; and JOHN NESS, R.N., Defendants/Appellees.
• Court: Arizona Court of Appeals

JELENA P. CRAFT, as surviving daughter individually

and on behalf of the statutory beneficiaries of the

Arizona Wrongful Death Act, Plaintiff/Appellant, v. MICHAEL TRAINOR, D.O., and JANE DOE TRAINOR,

husband and wife; ORTHOPAEDIC SPECIALISTS OF

CENTRAL ARIZONA; YAVAPAI REGIONAL MEDICAL CENTER;

and JOHN NESS, R.N., Defendants/Appellees.

1 CA-CV 11-0761

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT C

FILED: June 4, 2013

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Yavapai County

Cause No. P1300CV20071248

The Honorable David L. Mackey, Judge

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

Law Office of Scott E. Boehm, P.C.

by Scott E. Boehm

and

Phoenix

Grysen & Associates

by B. Elliott Grysen

Attorneys for Plaintiff/Appellant

Spring Lake, MI

Kent & Wittekind, PC

by Peter M. Wittekind

Attorney for Defendant/Appellee Trainor

And Orthopaedic Specialists of Central Arizona

Phoenix

Fadell, Cheney & Burt, P.L.L.C

by Gary A. Fadell

Attorney for Defendants/Appellees YRMC and John Ness, R.N.

Phoenix

THUMMA, Judge

¶1 Jelena Craft appeals from a defense verdict in this wrongful death and medical malpractice case arising out of the death of her father, Morris Scoggins. Craft argues the superior court erred in: (1) excluding expert testimony that Scoggins should have been transferred to an intensive care unit (ICU) hours before his death (and nurses should have advocated for that transfer) and that Scoggins would not have died if he had been transferred to the ICU; (2) allowing a treating nurse to testify that giving Scoggins a specific medication did not cause his death and (3) assessing taxable costs against statutory beneficiaries who were not named as parties. Because the expert testimony should have been admitted, the judgment is affirmed in part and reversed in part, the cost award is vacated and this matter is remanded for a new trial.

BACKGROUND ¹

¶2 On February 1, 2006, Scoggins underwent back surgery at Yavapai Regional Medical Center (YRMC). Defendant Dr. Michael Trainor, who practices medicine through defendant Orthopaedic Specialists of Central Arizona (collectively Trainor), performed the surgery. After the uneventful, nearly six-hour surgery, Scoggins was transferred to a general care (i.e., non-ICU) room for an anticipated three to seven day post-operative stay. Trainor prescribed Scoggins significant pain medications, including Dilaudid, a strong narcotic.

¶3 Late the next night and into the morning of February 3, 2006, Scoggins developed pneumonia, his heart rate and breathing became rapid and his blood oxygen levels dropped. Trainor prescribed antibiotics for the pneumonia and, after additional treatment, Scoggins' oxygen levels and heart and breathing rates stabilized. By 9:30 a.m. on February 4, Scoggins appeared stable, was able to take short walks and showed no respiratory distress. As a result, Trainor decreased the Dilaudid prescription to one dose every four hours.

¶4 At approximately 4:45 p.m. on February 4, Scoggins awoke from a deep sleep, became agitated and tried to get out ofbed. Concerned that Scoggins might hurt himself, a duty nurse called a "Code Green" to summon assistance from several YRMC staff to keep him safely in bed. After a telephone consultation with Trainor, Scoggins was given a dose of Valium to calm him down. By 5:10 p.m., Scoggins was resting comfortably and was stable. Neither Trainor nor any YRMC staff ordered Scoggins to be transferred to the ICU as a result of the Code Green.

¶5 Defendant John Ness, R.N., began his shift at 7:00 p.m. on February 4. Ness learned of the Code Green and made Scoggins his highest priority patient, observing him many times during the next few hours. At about 7:40 p.m., after finding Scoggins to be responsive and stable, although in "excruciating pain," Ness gave Scoggins a dose of Dilaudid.

¶6 At approximately 9:00 p.m., Scoggins could prop himself up in bed and take medications orally, but complained of severe pain. Although Trainor's Dilaudid prescription called for doses only once every four hours, Ness gave Scoggins Dilaudid at 9:15 p.m., an hour and a half after the prior dose. Seeing no signs for concern, Ness left Scoggins' room when a respiratory therapist arrived at approximately 9:20 p.m.

¶7 The respiratory therapist found Scoggins was not experiencing any respiratory distress, and placed a full ventilation mask on him so he could sleep. Almost immediately, Scoggins pulled off the mask, which the therapist noticed hadbroken. The therapist then placed a nasal mask on Scoggins and left the room for a few minutes to get a new ventilation mask. Scoggins' oxygen saturation levels then dropped, but increased almost immediately after the therapist placed the new ventilation mask on him.

¶8 After few minutes, Scoggins' oxygen saturation levels dropped again and the therapist called for his team leader and a rapid response team (apparently consisting of ICU nurses). At approximately 9:39 p.m., after the team leader arrived, Scoggins' heart rate dropped suddenly and dramatically and he stopped breathing. The therapist and team leader immediately began emergency treatment, called a "Code Blue" and the rapid response team arrived promptly. Despite the prompt response and emergency treatment, Scoggins died at 9:55 p.m. Craft admits that Trainor was not involved in, and in fact did not know anything about, the Code Blue.

¶9 Craft² filed this case individually and on behalf of Scoggins' statutory beneficiaries pursuant to Arizona's Wrongful Death Act, Arizona Revised Statutes (A.R.S.) section 12-611, etseq.,³ claiming wrongful death and medical malpractice. At trial, Craft sought to admit expert testimony, including from Dr. Charles Landers, that Trainor failed to provide proper care because Scoggins was not transferred to the ICU after the 4:45 p.m. Code Green; that Ness failed to advocate for Scoggins' transfer to the ICU; that these failures breached the applicable standards of care and that, more probably than not, Scoggins would have survived if those breaches had not occurred. Stated differently, Craft sought to admit expert testimony, including from Landers, that had Scoggins been transferred to the ICU at any time after the Code Green and before a half an hour preceding his arrest at 9:39 p.m., emergency treatment available in the ICU would have saved his life.

¶10 The superior court granted a motion in limine precluding substantial portions of Landers' causation (and related standard of care) testimony and, during trial, the court affirmed that order following an evidentiary offer of proof hearing. The court found Craft presented no non-speculative expert testimony that the failure to transfer Scoggins to the ICU caused his death. Because that ruling meant there would be no admissible testimony on that theory of causation, the court also excluded any evidence that any defendant fell below thestandard of care in not transferring Scoggins to the ICU or advocating for such a transfer.

¶11 The case went to trial against Trainor, YRMC and Ness in May and June 2011. During a seventeen-day trial, Craft provided evidence (including expert testimony) indicating that Scoggins died of respiratory failure caused by his pneumonia and defendants' substandard care, including specifically Ness' improper administration of the second dose of Dilaudid. Craft also presented expert testimony that Scoggins did not die from a heart attack. Defendants provided evidence (including expert testimony) that contradicted Craft's evidence and showed that Scoggins died of an unforeseeable heart attack. Ness opined, over objection, that his second administration of Dilaudid did not cause Scoggins' death.

¶12 After the close of the evidence, the superior court granted Craft's motion for judgment as a matter of law regarding Ness' breach of the standard of care by administering the Dilaudid and instructed the jury that Ness and YRMC "failed to comply with the standard of care in giving . . . Dilaudid to Scoggins at [9:15 p.m.]. You should decide whether the failure to comply with the standard of care was a cause of" Scoggins' death. After deliberating, the jury returned defense verdicts for all defendants.

¶13 Following the entry of judgment on the verdicts, Craft filed a timely appeal and this court has jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Standard of Review.

¶14 The superior court's exclusion or admission of evidence will not be disturbed on appeal absent an abuse of discretion and resulting prejudice. See Selby v. Savard, 134 Ariz. 222, 227, 655 P.2d 342, 347 (1982); Lay v. Mesa, 168 Ariz. 552, 554, 815 P.2d 921, 923 (App. 1991). An abuse of discretion occurs where no evidence supports the decision or the reasons given by the court are "clearly untenable [or] legally incorrect." Charles I. Friedman, P.C. v. Microsoft, 213 Ariz. 344, 350, ¶ 17, 141 P. 3d 824, 830 (App. 2006) (citation omitted). Prejudice is not presumed and "must affirmatively appear from the record." Rimondi v. Briggs, 124 Ariz. 561, 565, 606 P.2d 412, 416 (1980).

II. Landers' Intended Trial Testimony Was Admissible.

A. Superior Court Proceedings And Grounds For Exclusion.

¶15 The jury heard competing expert testimony about the cause of death, including Landers' testimony that Scoggins died from respiratory failure due to "pneumonia, fluid overload, sleep apnea, and very low oxygen," not from a heart attack. Craft asserts that her primary theory of liability was that "Trainorand YRMC's staff [including Ness] were negligent in failing to transfer [Scoggins] to the ICU department at the time of the" Code Green, five hours before his death. Craft argues that if Scoggins had been in the ICU "at the time he stopped breathing, that would...