Windhurst v. Ariz. Dep't of Corr.

• Decision Date: 02 November 2021
• Docket Number: No. 2 CA-CV 2020-0162,2 CA-CV 2020-0162
• Citation: 501 P.3d 752
• Parties: Antoinette WINDHURST, a single/widowed woman, on behalf of herself, and as Personal Representative of the Estate of her deceased husband, David Windhurst, Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF CORRECTIONS, a Governmental Entity; Charles Ryan, in his individual capacity as the Director of Arizona Department of Corrections, a governmental entity; State of Arizona, a governmental entity; Corizon Health, Inc., a business domiciled in Arizona, Defendants/Appellees.
• Court: Arizona Court of Appeals

501 P.3d 752

Antoinette WINDHURST, a single/widowed woman, on behalf of herself, and as Personal Representative of the Estate of her deceased husband, David Windhurst, Plaintiff/Appellant,

v.ARIZONA DEPARTMENT OF CORRECTIONS, a Governmental Entity; Charles Ryan, in his individual capacity as the Director of Arizona Department of Corrections, a governmental entity; State of Arizona, a governmental entity; Corizon Health, Inc., a business domiciled in Arizona, Defendants/Appellees.

No. 2 CA-CV 2020-0162

Court of Appeals of Arizona, Division 2.

Filed November 2, 2021

Mesch Clark Rothschild, Tucson, By Nathan S. Rothschild and Bernardo Velasco and Crawford Law PLLC, Tucson By Michael J. Crawford Counsel for Plaintiff/Appellant

Qunitairos, Prieto, Wood & Boyer P.A., Scottsdale, By Rita J. Bustos, Anthony Fernandez, Dustin Christner, and Alyssa R. Illsley Counsel for Defendants/Appellees

Chief Judge Vásquez authored the opinion of the Court, in which Judge Brearcliffe and Judge Eckerstrom concurred.

VASQUEZ, Chief Judge:

¶1 Antoinette Windhurst, individually and as the personal representative of her deceased husband David Windhurst, appeals from the trial court's partial grant of summary judgment in favor of appellees, Arizona Department of Corrections, Charles Ryan, the State of Arizona, and Corizon Health, Inc. (collectively, "Corizon"). On appeal, Windhurst argues the court erred by applying a heightened standard for her medical expert opinions and failed to view the evidence in the light most favorable to her in granting Corizon summary judgment as to her medical negligence claim. For the reasons stated below, we vacate and remand for further proceedings.

Factual and Procedural Background

¶2 We view the facts and reasonable inferences therefrom in the light most favorable to Windhurst, the party opposing the motion for summary judgment. Braillard v. Maricopa County , 224 Ariz. 481, n.11, 232 P.3d 1263 (App. 2010). In December 2015, David Windhurst was incarcerated at the Florence state prison. He was paraplegic and had numerous chronic medical conditions, including diabetes mellitus

, hypertension, obesity, kidney disease, and wounds to his lower back and buttocks. When he was first incarcerated, his conditions were stable. But because of his conditions, he was housed in the prison's infirmary, where his health care was provided by the Department of Corrections through its contractor, Corizon.

¶3 In February 2016, Mr. Windhurst was transferred to a hospital in a state of septic shock

and remained there for over a month. Upon his release from the hospital, he was transferred to the Arizona State Prison Complex in Tucson, where he was housed in the infirmary under Corizon's care.

¶4 In November 2016, Mr. Windhurst was again admitted to the hospital with septic shock

. On December 25, he died in the hospital of infectious complications of diabetes mellitus.

¶5 Antoinette Windhurst filed a wrongful death action against Corizon, the Arizona Department of Corrections and its director Charles Ryan, and the State of Arizona, claiming medical malpractice and entitlement to relief under the Adult Protective Service Act, A.R.S. §§ 46-451 to 46-461. She alleged that the defendants—Corizon as an institution and its medical personnel individually—through various failures, had "engaged in systematic repetitive negligent care" in treating her husband.

¶6 In support of her claims, Windhurst provided evidence including Mr. Windhurst's medical records and deposition testimony and reports from Dr. Zachary Rosner, Chief of Medicine for Correctional Health Services in New York City; Nurse Practitioner Tara Hood, who had worked as a nurse practitioner in a Connecticut correctional institute for ten years; and Registered Nurse Denise Panosky, who had fourteen years’ experience as a professor "teaching students and nurses about practicing in a correctional setting." Each provided an expert opinion that Corizon and various members of its staff had contributed to Mr. Windhurst's death due to their breaches of the standard of care or "lack of physician staffing, oversight, inexperience, and negligence."

¶7 Corizon moved for summary judgment, contending, among other things, that there was "no evidence that [it had] violated the standard of care [or] caused [Mr. Windhurst's] death." In particular, Corizon argued that Windhurst had "failed to provide standard-of-care opinions against specific providers." It maintained that Windhurst's expert doctor, Dr. Rosner, had only "broadly allege[d that] ‘Clinicians’ fell below the standard of care" and "fail[ed] to name a single medical doctor that fell below the standard of care, when he fell below the standard of care and how it caused injury to Mr. Windhurst."

¶8 Likewise, although Corizon acknowledged that Windhurst's registered nurse expert, Denise Panosky, had stated that "RN-level caregivers breached the standard of care for various reasons," it argued that Panosky's testimony had not proved that "negligence by any nurse caused actual harm to Mr. Windhurst." Corizon further maintained that Panosky's and Hood's opinions were insufficient to establish causation based on their respective professional positions and their own statements.

¶9 The trial court granted Corizon partial summary judgment, including summary judgment on the medical negligence claim.¹ The court stated that as to Windhurst's medical negligence claim, although it had "spent time trying to connect the dots," it "d[id not] see the medical expert testimony that links everything up." The court invited Windhurst to file a motion for reconsideration to point out evidence establishing that particular providers or categories of providers had breached standards of care and that those breaches had caused Mr. Windhurst's death.

¶10 Although Windhurst filed a motion for reconsideration, the trial court denied it, ruling that the motion still failed to " ‘connect the dots’ to make a prima facie showing on the statutory elements for medical malpractice." The court stated that Windhurst had failed to "specifically identify Corizon's individual health-care-provider employees and agents, and with corresponding expert testimony, explain how those employees and agents fell below the applicable standard of care, and with similar expert testimony explain how such failures were a cause of injury." It noted that "most of [Windhurst's] malpractice allegations are against Corizon as an entity or as to it[s] clinicians generally, not against specified individual health-care providers." Although the court acknowledged that Windhurst had "sprinkle[d] some allegations against specific individuals," it concluded that those allegations were "so intertwined with the general allegations that it is unclear whether [Windhurst] has the requisite corresponding expert testimony to make a prima facie showing that those individuals failed to meet the applicable standard of care, never mind that such failure was also a proximate cause of injury."

¶11 The trial court's partial summary judgment was made final pursuant to Rule 54(b), Ariz. R. Civ. P., on Windhurst's medical negligence and negligence per se claims. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Discussion

¶12 Windhurst argues the trial court erred in granting partial summary judgment on her medical negligence claim because she provided sufficient evidence by qualified medical experts, establishing the necessary elements as required by Arizona law. She maintains the court failed to view the evidence in the light most favorable to her, as it was required to do. She contends that the court, in part because it failed to draw reasonable inferences in her favor, disregarded her experts’ opinions about the relevant standards of care and breaches by Corizon as an institution; breaches by individual doctors, nurse practitioners, and registered nurses employed by Corizon; and "breaches by omission" by "entire classes of providers." Finally, she argues that although she made the required showing that the breaches caused Mr. Windhurst's death, the court erroneously concluded that she had failed to show causation because she had not shown how the breaches caused injury.

¶13 We review both a grant of summary judgment and whether the trial court erred in applying the law de novo. Equihua v. Carondelet Health Network , 235 Ariz. 504, ¶ 5, 334 P.3d 194 (App. 2014). Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law," Ariz. R. Civ. P. 56(a), particularly "when a plaintiff fails to establish a prima facie case." Gorney v. Meaney , 214 Ariz. 226, ¶ 17, 150 P.3d 799 (App. 2007).

¶14 "In medical malpractice actions, as in all negligence actions, the plaintiff must prove the existence of a duty, a breach of that duty, causation, and damages." Seisinger v. Siebel , 220 Ariz. 85, ¶ 32, 203 P.3d 483 (2009). These common law elements are partially codified under A.R.S. § 12-563, which requires a plaintiff to prove that a health care provider fell below the applicable standard of care by "fail[ing] 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 that "[s]uch failure was a proximate cause of the injury." See Seisinger , 220 Ariz. 85, ¶ 39, 203 P.3d 483. A licensed health care provider can be a corporation or institution. A.R.S. § 12-561(1)(a).

¶15 Expert medical testimony is generally necessary to establish the applicable standard of care in a medical negligence case. Seisinger , 220 Ariz. 85, ¶ 33, 203 P.3d 483. Experts testifying to the standards of care of medical professionals must satisfy both the requirements of Rule 702, Ariz. R. Evid., and the "heightened" requirements of A.R.S. § 12-2604. Seisinger , 220 Ariz. 85, ¶¶...