Salica v. Tucson Heart Hosp.-carondelet

• Decision Date: 27 May 2010
• Docket Number: No. 2 CA-CV 2009-0153.,2 CA-CV 2009-0153.
• Citation: 224 Ariz. 414,231 P.3d 946
• Parties: Carol SALICA, the surviving wife of Louis Salica, individually and on behalf of statutory beneficiaries, Plaintiff/Appellee,v.TUCSON HEART HOSPITAL-CARONDELET, L.L.C., an Arizona corporation, Defendant/Appellant.
• Court: Arizona Court of Appeals

224 Ariz. 414

231 P.3d 946

Carol SALICA, the surviving wife of Louis Salica, individually and on behalf of statutory beneficiaries, Plaintiff/Appellee,v.TUCSON HEART HOSPITAL-CARONDELET, L.L.C., an Arizona corporation, Defendant/Appellant.

No. 2 CA-CV 2009-0153.

Court of Appeals of Arizona Division 2, Department B.

May 27, 2010.

Piccarreta Davis PC By Barry M. Davis and Amy Hernandez, Tucson, Attorneys for Plaintiff/Appellee.

Humphrey & Petersen, P.C. By Marshall Humphrey III and Andrew J. Petersen, Tucson, Cooper & Scully, P.C. By John A. Scully, Dallas, Texas, Attorneys for Defendant/Appellant.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 This appeal by the defendant Tucson Heart Hospital-Carondelet, L.L.C., arises from a wrongful death action filed by Carol Salica, Louis Salica's widow. After a twelve-day trial, a jury found Tucson Heart and other parties had negligently caused Salica's death. The jury determined Tucson Heart was sixty percent responsible and found it liable for damages totaling $600,000.¹ On appeal, Tucson Heart argues there was insufficient evidence that its negligence caused Salica's death and urges this court to reverse the trial court's denial of its motion for judgment as a matter of law. For the reasons set forth below, we affirm.

Factual and Procedural Background

¶ 2 “We view the evidence and reasonable inferences therefrom in the light most favorable to upholding the jury's verdict.” Acuna v. Kroack, 212 Ariz. 104, ¶ 3, 128 P.3d 221, 223 (App.2006). At approximately 4:15 a.m. on September 26, 2005, fifty-year-old Louis Salica went to Tucson Heart's emergency room complaining of chest pains and shortness of breath. After being examined, tested, and treated by emergency room physicians, he was admitted to the hospital around noon in stable condition. The emergency room doctors had given him differential diagnoses of acute coronary syndrome (ACS), congestive heart failure (CHF), pneumonia, and hypoxia, or insufficient oxygen.

¶ 3 While in the hospital that day, Salica was examined by an internist and a pulmonologist. The internist believed that, although Salica had some type of “cardiac component” to his illness, he was suffering primarily from pneumonia. The pulmonologist who later examined Salica and reviewed his records disagreed. Having detected a murmur in the mitral valve of Salica's heart, the pulmonologist believed Salica was most likely suffering from a mitral-valve disease that was causing cardiac decompensation. Salica was in stable condition when the pulmonologist examined him at 5:00 p.m., but the doctor characterized him as a “really sick guy” and expected him to be cared for by a cardiologist.

¶ 4 Salica's own cardiologist and attending physician, Dr. James Myer, did not examine Salica in the hospital until 9:00 p.m. Myer had been informed of Salica's status over twelve hours earlier and originally had planned to visit him in the emergency room. When Myer saw him, Salica was receiving supplemental oxygen, and Myer ordered that he be given Lasix to reduce the fluid in his lungs and thereby ease his breathing. Because it is a diuretic, Lasix also increases a patient's urine output.

¶ 5 During his examination of Salica, Myer detected mitral-valve regurgitation and arranged for his partner, Dr. Charles Katzenberg, to perform a transesophageal echocardiogram (TEE) the next morning to identify the defect more specifically. Following Myer's visit with Salica, the on-call physician covering for Myer, Dr. Edward Byrne-Quinn, would have received any overnight calls made to Myer regarding Salica.

¶ 6 That night, while Salica was in the care of registered nurse Diane LeBlanc, his health deteriorated. His urine production was less than expected, indicating the Lasix was not having its intended effect, and his oxygen saturation consistently was below the minimum level of ninety percent, even though he had been placed on a non-rebreathing device and was receiving the maximum amount of supplemental oxygen possible without intubation. Nurse LeBlanc consulted both her charge nurse and a respiratory therapist about Salica's condition during this period. Yet she did not alert a physician about Salica's status until approximately 6:00 the next morning during a telephone conference initiated by Dr. Katzenberg.

¶ 7 The plaintiff's expert witness, Nurse Halina Orawiec, testified LeBlanc's failure to call a physician between 9:00 p.m. and 6:00 a.m. fell below the standard of care for registered nurses in several respects. Specifically, LeBlanc failed to report that Salica had been placed on a non-rebreathing device at around 12:30 a.m. on September 27 without improvement; ² she failed to report that his oxygen levels were consistently below the minimum level, despite the fact that he was receiving the maximum possible amount of supplemental oxygen; ³ and she failed to report Salica's poor response to Lasix, which was evident two hours after it had been administered.

¶ 8 Dr. Mark Perlroth, the plaintiff's expert-witness cardiologist, testified that the standard of care for a cardiologist upon receiving a report about Salica's status during LeBlanc's shift would have called for prompt action. This included admitting Salica to the intensive-care unit (ICU), intubating him, performing a TEE, inserting an intra-aortic balloon, increasing his medications, and consulting with a cardiothoracic surgeon.⁴ Another expert witness, Dr. Andrew Wechsler, testified that the lack of surgical intervention during LeBlanc's shift, resulting in “hours of progression of the underlying heart failure and difficulty in getting oxygen into the body in adequate amounts,” had meaningfully decreased Salica's chance of survival.

¶ 9 The following morning, the pulmonologist who examined Salica after Nurse LeBlanc's shift had ended found Salica was “significantly worse than when [he] left him the day before.” The internist who previously had examined Salica ordered him to the ICU at approximately 8:20 a.m. Dr. Katzenberg arrived at the hospital around 10:40 a.m., requested a consultation with a cardiothoracic surgeon about thirty minutes later, and intubated Salica shortly thereafter. By noon, the TEE revealed Salica had suffered a papillary muscle rupture that would require surgery. In preparation for the surgery, Dr. Myer inserted an intra-aortic balloon pump. Doctors successfully repaired Salica's mitral valve that day, but he ultimately died from complications and infections resulting from the surgery. Dr. Paul Auwaerter, an infectious-disease specialist, testified Salica's susceptibility to those complications was a consequence of his fragile, significantly deteriorated condition at the time of the surgery.

¶ 10 At the close of the plaintiff's evidence, Tucson Heart moved for judgment as a matter of law (JMOL) pursuant to Rule 50(a), Ariz. R. Civ. P., arguing the plaintiff had failed to prove that the negligence of its employee, Nurse LeBlanc, had caused Salica's death. The trial court denied the motion. Tucson Heart renewed its motion under Rule 50(b) after the entry of judgment, and the court again denied the motion. This appeal followed.

Discussion

¶ 11 Tucson Heart challenges the denial of its Rule 50 motion, an issue we review de novo. See Felder v. Physiotherapy Assocs., 215 Ariz. 154, ¶ 36, 158 P.3d 877, 885 (App.2007). “A motion for JMOL should be granted ‘if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.’ ” A Tumbling-T Ranches v. Flood Control Dist. of Maricopa County, 222 Ariz. 515, ¶ 14, 217 P.3d 1220, 1229 (App.2009) quoting Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990); see also Ariz. R. Civ. P. 50(a)(1). When analyzing this issue, “we review the evidence in a light most favorable to upholding the jury verdict' and will affirm ‘if any substantial evidence exists permitting reasonable persons to reach such a result.’ ” Acuna v. Kroack, 212 Ariz. 104, ¶ 24, 128 P. 3d 221, 228 (App.2006) quoting Hutcherson v. City of Phoenix, 192 Ariz. 51, ¶ 13, 961 P.2d 449, 451 (1998).

¶ 12 As part of her wrongful death cause of action brought pursuant to A.R.S. § 12-611,⁵ the plaintiff had to establish medical malpractice in accordance with A.R.S. §§ 12-561(2), 12-562(A), and 12-563. Pursuant to § 12-563, she was required to prove that Salica's health care providers failed to comply with the accepted standard of care and that “[s]uch failure was a proximate cause of the injury.” The sole issue raised in this appeal is whether the evidence presented was legally sufficient to establish causation. Specifically, the question is whether that evidence allowed the jury to conclude that the actions of Tucson Heart's employee, Nurse LeBlanc, proximately caused Salica's death.

¶ 13 A “proximate cause” is defined as “that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred.” ⁶ Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546, 789 P.2d 1040, 1047 (1990). This definition includes the element of causation in fact. Jefferson L. Lankford & Douglas A. Blaze The Law of Negligence in Arizona § 4.2 at 48 (1992).

¶ 14 However, when multiple tortfeasors are alleged to have created an indivisible injury and each defendant's causal role is potentially indeterminable, such causal uncertainty will not prevent a plaintiff from recovering altogether. E.g., Piner v. Superior Court, 192 Ariz. 182, ¶¶ 3-4, 18, 26, 962 P.2d 909, 910-11, 913-14, 915-16 (1998) (sequential car accidents; extent of damage caused by each unknown); Holtz v. Holder, 101 Ariz. 247, 248-49, 251, 418 P.2d 584, 585-86, 588 (1966) (sequential car accidents; cause in fact and extent of damages caused by each defendant unknown); Summers v. Tice, 33...