McDaniel v. Payson Healthcare Mgmt., Inc.

• Citation: 477 P.3d 123,250 Ariz. 199
• Decision Date: 30 October 2020
• Docket Number: No. 2 CA-CV 2019-0150,2 CA-CV 2019-0150
• Parties: Ronnie Anthony MCDANIEL, Conservator of the Estate of Dallas R. Haught; and Roy G. Haught and Marie Haught, natural Parents of Dallas R. Haught, Plaintiffs/Appellants/Cross-Appellees, v. PAYSON HEALTHCARE MANAGEMENT, INC., an Arizona Corporation, dba Payson Regional Bone & Joint ; 4C Medical Group, P.L.C., an Arizona corporation; and Amar Parkash Sharma, M.D., Defendants/Appellees/Cross-Appellants.
• Court: Court of Appeals of Arizona

250 Ariz. 199

477 P.3d 123

Ronnie Anthony MCDANIEL, Conservator of the Estate of Dallas R. Haught; and Roy G. Haught and Marie Haught, natural Parents of Dallas R. Haught, Plaintiffs/Appellants/Cross-Appellees,

v.PAYSON HEALTHCARE MANAGEMENT, INC., an Arizona Corporation, dba Payson Regional Bone & Joint ; 4C Medical Group, P.L.C., an Arizona corporation; and Amar Parkash Sharma, M.D., Defendants/Appellees/Cross-Appellants.

No. 2 CA-CV 2019-0150

Court of Appeals of Arizona, Division 2.

Filed October 30, 2020

VÁSQUEZ, Chief Judge:

¶1 In this medical malpractice action, Dallas Haught, through his conservator, appeals from the trial court's judgment and denial of his motion for new trial entered after a jury verdict in favor of 4C Medical Group P.L.C. and Dr. Amar Sharma (collectively, 4C Medical Group) and Payson Healthcare Management Inc. (PHM). On appeal, Haught argues the court erred by admitting expert testimony from several treating physicians about the standard of care and opinions from testifying experts that had not been disclosed before trial. Further, Haught contends the court erroneously failed to grant a new trial or evidentiary hearing on his claims that the jury considered extraneous information. In its cross-appeal, PHM contends the court erred by granting a co-defendant summary judgment on a basis not raised in the motion and therefore erroneously denying its request to list the dismissed defendant as a non-party at fault. 4C Medical Group also cross-appeals, arguing the court improperly denied its request for costs as the prevailing party. For the following reasons, we reverse and remand for a new trial and dismiss both cross-appeals.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the verdict. See Stafford v. Burns , 241 Ariz. 474, n.2, 389 P.3d 76, n.2 (App. 2017). On July 17, 2011, Haught fell from a dirt bike and lacerated his right knee. He received treatment at the Payson Regional Medical Center's emergency room and was discharged the same day. Haught then returned around 1:00 a.m. with "severe pain." The hospital discharged him again, with directions to see his primary care physician, which he did the following day, along with an orthopedic surgeon, Dr. Michael Darnell. The physicians ordered laboratory tests, but Darnell incorrectly recorded the result of a C-Reactive Protein (CRP) test as 45 milligrams per deciliter in his notes when the lab had actually reported 138.79 mg/dL—an abnormally high level.¹ The following day, Darnell "drain[ed] and debride[d] the wound" and ordered Haught to be transferred to Scottsdale Shea Medical Center (Shea MC) via "Air Ambulance," which was later changed to "ground ambulance" due to weather.

¶3 At Shea MC, Dr. Sharma, an owner of 4C Medical Corporation and hospitalist, and Dr. John Cory, an orthopedic surgeon, initially treated Haught. Sharma collected and organized Haught's medical records and test results for the other physicians. He apparently saw the incorrect CRP result of 45, not 138.79, and ultimately, he entirely omitted the CRP results from his report. Dr. John Burge, an infectious disease physician, saw Haught on July 22. The following day, Dr. David Friedman, an infectious disease physician, and a different hospitalist assumed responsibility for Haught's care in place of Burge and Sharma, respectively. That day, Cory operated on Haught to "deal[ ] with increased compartment pressures." Later, he performed a second operation to drain Haught's knee.

¶4 On July 26, Dr. Timothy Schaub, a plastic surgeon, examined Haught and, in his consultation report, expressed concerns regarding potential necrotizing fasciitis. The following day, in consultation with Dr. Cory, Schaub confirmed necrotizing fasciitis and performed a "[r]adical debridement" on Haught's right leg, in which he removed affected skin and soft tissue, including "scant muscle tissue." Haught was then transferred to Arizona Burn Center for additional treatment and rehabilitation. Over the next ten weeks, several additional procedures were performed. The burn center discharged Haught in early October.

¶5 Haught and his parents filed a complaint alleging medical negligence against some of the physicians and their associated hospitals and business entities, including Dr. Cory, PHM, and 4C Medical Group.² In opposing summary judgment, Haught argued that the defendants had "failed to timely manage, investigate, diagnose or treat both his life threatening infection (necrotizing fasciitis ) and his worsening compartment syndrome," which resulted in all of the skin on his entire right leg having to be surgically removed. The trial court granted Cory's motion for summary judgment and denied PHM's request to list Cory as a non-party at fault. In 2018, after a sixteen-day trial, the jury returned a verdict in favor of PHM and 4C Medical Group. The court entered final judgment against Haught and in favor of 4C Medical Group and PHM and denied 4C Medical Group's request for costs. Haught timely filed a motion for new trial, which the court denied.

¶6 Haught's appeal and cross-appeals by PHM and 4C Medical Group followed. We have jurisdiction over Haught's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1), (5)(a).

Treating Physicians

¶7 Haught argues he was prejudiced by the testimony provided by Drs. Friedman, Schaub, Burge, and Cory, all treating physicians, who provided expert testimony, violating the one-expert-per-side rule set forth in Rule 26(b)(4)(F), Ariz. R. Civ. P. The parties disagree over the appropriate standard of review.

¶8 We review legal questions and interpretations of the Arizona Rules of Civil Procedure de novo. Stafford , 241 Ariz. 474, ¶¶ 25, 35, 389 P.3d 76 ; see also McNamara v. Citizens Protecting Tax Payers , 236 Ariz. 192, ¶ 5, 337 P.3d 557 (App. 2014) (legal questions). Whether testimony is expert in nature and admitted in violation of the one-expert-per-side rule is likewise reviewed de novo. See Stafford , 241 Ariz. 474, ¶ 25, 389 P.3d 76 (examining former one-expert-per-side rule). We defer, however, to the trial court's factual findings. See W. Valley View, Inc. v. Maricopa Cty. Sheriff's Office , 216 Ariz. 225, ¶ 7, 165 P.3d 203 (App. 2007). We will only reverse and remand if an error is prejudicial. See Felipe v. Theme Tech. Corp. , 235 Ariz. 520, ¶ 24, 334 P.3d 210 (App. 2014).

¶9 While "a bright-line rule for determining when a treating physician crosses the line from fact witness to expert witness" is impossible to create, this court has provided some guidelines. State ex rel. Montgomery v. Whitten , 228 Ariz. 17, ¶ 12, 262 P.3d 238 (App. 2011). Generally, when treating physicians answer "who, what, when, where, and why" questions regarding their patient treatment and their own records, the resulting answers comprise fact testimony. Id. ¶ 15. But "when the treating physician goes beyond the observations and opinions obtained by treating the individual and expresses opinions acquired or developed in anticipation of trial, then the treating physician steps into the shoes of an expert," Sanchez v. Gama , 233 Ariz. 125, ¶ 12, 310 P.3d 1 (App. 2013) (quoting Indem. Ins. Co. of N. Am. v. Am. Eurocopter LLC , 227 F.R.D. 421, 423-24 (M.D.N.C. 2005) ), because "[g]enerally speaking, a witness asked to form an opinion for purposes of testifying is providing expert testimony," Whitten , 228 Ariz. 17, ¶ 17, 262 P.3d 238. "[Q]uestions that require a physician ... to opine regarding the standard of care or treatment given by another provider are generally inconsistent with the role of treating physician as fact witness." Id. ¶ 16 ; see also Solimeno v. Yonan , 224 Ariz. 74, ¶¶ 10-12, 227 P.3d 481 (App. 2010) (concluding defendant's testimony about whether treatment of patient complied with standard of care was expert testimony); cf. W.A. Krueger Co. v. Indus. Comm'n , 150 Ariz. 66, 68, 722 P.2d 234, 236 (1986) (describing treating physicians’ testimony regarding "their belief that respondent had no permanent impairment" as expert testimony).

¶10 Rule 26(b)(4)(F) presumptively limits each side to one expert to testify on a particular issue. However, the rule permits a defendant in a medical malpractice case to "testify on the issue of that defendant's standard of care" in addition to defendant's standard-of-care expert witness. Ariz. R. Civ. P. 26(b)(4)(F)(ii). We interpret rules under the same principles as statutes, looking first to the plain language and then to the rule as a whole, giving "meaningful application to all its provisions." See Devenir v. City of Phoenix , 169 Ariz. 500, 503, 821 P.2d 161, 164 (1991). The one-expert-per-side rule is intended to limit cumulative evidence. See Sanchez v. Old Pueblo Anesthesia, P.C. , 218 Ariz. 317, ¶ 18, 183 P.3d 1285 (App. 2008) (citing Ariz. R. Civ. P. 26 cmt. to 1991 amend.), disapproved of on other grounds by Rasor v. Nw. Hosp., LLC , 243 Ariz. 160, 403 P.3d 572 (2017). Accordingly, if an expert witness and a non-defendant, treating physician present expert opinions on the same issue for the same side in a medical malpractice case, the testimony is cumulative and presumptively limited by Rule 26(b)(4)(F). Cf. Stafford , 241 Ariz. 474, ¶ 25, 389 P.3d 76 (determining if defendant physician violated one-expert-per-side rule by offering expert causation testimony).

¶11 Dr. Schaub, the plastic surgeon, testified regarding the CRP results, which had not been in his chart and he had not seen.³ Specifically, on direct examination, 4C Medical Group asked him, "[CRP] doesn't really tell you much, other than the fact that there's an inflammatory process going on," to which he responded, "No, it's not specific." Additionally, he testified that he did not "think at that time it would have pushed [him] one way or another" to know the abnormally high CRP result. Then on redirect, over Haught's objection, 4C Medical Group read portions of Schaub's deposition regarding CRP's...