Rasor v. Nw. Hosp., LLC

• Decision Date: 18 October 2017
• Docket Number: No. CV-16-0134-PR.,CV-16-0134-PR.
• Citation: 403 P.3d 572
• Parties: Karyn D. RASOR and Donald Miller, Wife and Husband, Plaintiffs/Appellants/Cross–Appellees, v. NORTHWEST HOSPITAL, LLC dba Northwest Medical Center, Defendant/Appellee/Cross–Appellant.
• Court: Arizona Supreme Court

403 P.3d 572

Karyn D. RASOR and Donald Miller, Wife and Husband, Plaintiffs/Appellants/Cross–Appellees,

v.NORTHWEST HOSPITAL, LLC dba Northwest Medical Center, Defendant/Appellee/Cross–Appellant.

No. CV-16-0134-PR.

Supreme Court of Arizona.

Filed October 18, 2017

Kevin E. Miniat (argued), Miniat & Wilson, LPC, Tucson, Attorneys for Karyn D. Rasor and Donald Miller

Kari B. Zangerle, Mary G. Isban (argued), Robert C. Stultz, Campbell, Yost, Clare & Norell, P.C., Phoenix, Attorneys for Northwest Hospital, LLC, dba Northwest Medical Center

Stanley G. Feldman, Miller, Pitt, Feldman & McAnally, P.C., Tucson; JoJene E. Mills, Law Office of JoJene Mills, P.C., Tucson; David L. Abney, Ahwatukee Legal Office, P.C., Phoenix, Attorneys for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers Association

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL, TIMMER, GOULD, and LOPEZ joined.

JUSTICE BOLICK, opinion of the Court:

¶ 1 This case involves challenges to qualifications for expert witnesses in a medical malpractice action. We hold that a defendant may move for summary judgment based on a proposed expert's lack of requisite qualifications under A.R.S. § 12-2604 without first challenging the sufficiency of the expert affidavit under A.R.S. § 12-2603. We also hold that, pursuant to § 12-2604, an expert is unqualified to testify on standard of care if she did not engage in active clinical practice or teaching during the year immediately preceding the injury.

I. BACKGROUND

¶ 2 Plaintiff Karyn Rasor underwent surgery at Northwest Medical Center ("NWMC"). After the operation, NWMC placed Rasor in a medically induced coma in the intensive care unit ("ICU"). During this time, Rasor developed a pressure ulcer over her tailbone. The injury worsened, ultimately requiring thirty-one debridement procedures and, Rasor claims, resulting in permanent residual damage. Rasor filed this medical malpractice action against NWMC, alleging that the preventative wound care provided by ICU nursing staff, specifically faulty repositioning, caused her injuries.

¶ 3 After commencing the action, Rasor filed a certification verifying the need for expert testimony to prove her claims pursuant to § 12-2603(A). Rasor subsequently filed a preliminary expert affidavit pursuant to § 12-2603(B) identifying Julie Ho, RN, as her expert on standard of care and causation. Ho was a certified wound care nurse who worked at a long-term acute care facility performing admission assessments, reassessments, and care planning during the year preceding Rasor's injury. She opined that NWMC had failed to adequately reposition Rasor during her recovery, thereby causing a pressure ulcer to develop, and failed to take necessary steps after discovering the ulcer, which then worsened.

¶ 4 After the expert disclosure deadline, NWMC deposed Ho. Rasor subsequently filed a preemptive motion to qualify Ho as an expert on standard of care, causation, and prognosis. Rasor alternately asked to identify another expert if the court precluded any of Ho's opinion evidence.

¶ 5 Shortly after Rasor filed her motion, NWMC moved for summary judgment, arguing that Ho did not qualify as an expert on standard of care or causation under § 12-2604, and therefore Rasor could not satisfy her burden on those elements of her claim and the case should be dismissed. Among other things, NWMC argued that Rasor needed an expert who was a certified ICU nurse, not a wound-care specialist.

¶ 6 At oral argument on Rasor's motion, the trial court found that Ho was qualified to testify about the standard of care for wounds and said, "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?" But the judge also expressed that "what I'm concerned about is whether or not she could testify as to causation." The court subsequently ruled that Rasor was permitted to introduce Ho's expert opinion "regarding wound care" and reserved the remaining issues for the summary judgment hearing.

¶ 7 At oral argument on NWMC's motion for summary judgment, Rasor again requested permission to find another expert if Ho's qualifications were found wanting. The trial court denied that request and granted the summary judgment motion without explanation.

¶ 8 Rasor appealed. (NWMC filed a cross-appeal regarding a discovery issue, which is not before us.) The court of appeals concluded that Ho was not qualified as a standard-of-care expert, holding that a certified ICU specialist rather than a wound-care expert was required under § 12-2604(A) and Baker v. Univ. Physicians Healthcare , 231 Ariz. 379, 296 P.3d 42 (2013), and, alternatively, if ICU nurses are considered generalists, Ho was not a practicing generalist in the year prior to Rasor's injury. Rasor v. Nw. Hosp., LLC , 239 Ariz. 546, 550–51 ¶¶ 9–12, 373 P.3d 563, 567–68 (App. 2016). Because the trial court properly granted NWMC's motion for summary judgment on this basis alone, the court of appeals did not address whether Ho was qualified under Evidence Rule 702 or whether she was competent to testify about causation. Id. at 552 ¶ 15 n.8, 373 P.3d at 569 n.8.

¶ 9 The court of appeals ruled, however, that Rasor should have been allowed to find a different expert. Id. at 553 ¶ 19, 373 P.3d at 570. Citing Preston v. Amadei , 238 Ariz. 124, 357 P.3d 159 (App. 2015), the court noted that when a defendant in a malpractice case challenges a plaintiff's preliminary disclosures of expert opinions, the plaintiff must be allowed to correct any deficiency pursuant to § 12-2603(F) ("Upon any allegation of insufficiency of the [expert] affidavit, the court shall allow any party a reasonable time to cure any affidavit, if necessary."). Rasor , 239 Ariz. at 553–54 ¶ 18, 373 P.3d at 570. The court noted that, as in Preston , the defendant did not challenge the sufficiency of the preliminary expert affidavit, but rather challenged the expert's qualifications in a summary judgment motion after the expert disclosure deadline had passed. Id. For the reasons expressed in Preston , and because the trial court had previously "strongly indicated Ho's opinions would be admitted at trial," the court of appeals held that the trial court erred by denying Rasor's request to substitute a new expert. Id. at 553 ¶ 19, 373 P.3d at 570.

¶ 10 Both parties sought review in this Court. We granted review to determine whether as a matter of law Ho was qualified to serve as an expert and, if not, whether the trial court should have granted Rasor an opportunity to find a new expert. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II. DISCUSSION

¶ 11 In reviewing a grant of summary judgment, we view the facts and reasonable inferences in the light most favorable to the non-prevailing party. BMO Harris Bank, N.A. v. Wildwood Creek Ranch, LLC , 236 Ariz. 363, 365 ¶ 7, 340 P.3d 1071, 1073 (2015). "Apart from issues of statutory interpretation, which we review de novo, we review trial court determinations of expert qualifications for an abuse of discretion." Baker , 231 Ariz. at 387 ¶ 30, 296 P.3d at 50.

A. Establishing and challenging expert qualifications

¶ 12 A plaintiff establishes medical malpractice by proving that (1) "[t]he health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances," and (2) "[s]uch failure was a proximate cause of the injury." A.R.S. § 12-563 ; see also Baker , 231 Ariz. at 384 ¶ 12, 296 P.3d at 47 ("In medical malpractice cases, plaintiffs must show that a health care provider breached the appropriate standard of care and the breach resulted in injury."). Unless malpractice is grossly apparent, the standard of care must be established by expert medical testimony. Seisinger v. Siebel , 220 Ariz. 85, 94 ¶ 33, 203 P.3d 483, 492 (2009) ; Hunter v. Benchimol , 123 Ariz. 516, 517, 601 P.2d 279, 280 (1979).

¶ 13 The dispute here involves the relationship between §§ 12-2603 and -2604. Section 12-2603 was enacted in 2004 and sets forth the requirements for preliminary expert affidavits. Section 12-2604 was enacted the following year and sets forth the requisite expert qualifications to testify on standard of care.

¶ 14 When an expert is deemed necessary under § 12-2603(A), the plaintiff must file with her initial disclosure statement a preliminary expert opinion affidavit setting forth, among other things, the "expert's qualifications to express an opinion on the health care professional's standard of care or liability for the claim." § 12-2603(B)(1) ; see also Ariz. R. Civ. P. 26.1(d)(1) (requiring initial disclosure statements to be served on opposing party within forty days of last responsive pleading). Section 12-2603(F) provides that the court "shall dismiss the claim ... without prejudice" if the affidavit is not filed and served as required. Subsection F further provides that "[u]pon any allegation of insufficiency of the affidavit, the court shall allow any party a reasonable time to cure any affidavit, if necessary." § 12-2603(F). There is no specified time by which a defendant must challenge a preliminary affidavit under § 12-2603.

¶ 15 Section 12-2604 states the requisite qualifications for standard-of-care experts, three of which are pertinent here. First, "[i]f the party against whom or on whose behalf the testimony is offered is or claims to be a specialist," the expert must specialize "at the time of the occurrence ... in the same specialty." § 12-2604(A)(1). Second, if the defendant "is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty."Id. Third, "[d]uring the year immediately preceding the occurrence giving rise to the...