Karen 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. 2 CA-CV 2015-0065.
Court of Appeals of Arizona, Division 2.
May 17, 2016.
373 P.3d 563
and -348 I 1 upon compliance with Rule 21, Arizona Rules of Civil Appellate Procedure.
Campbell, Yost, Clare & Norell, P.C. By Kari B. Zangerle and Mary G. Isban, Phoenix, Counsel for Defendant/Appellee/Cross-Appellant.
Judge ESPINOSA authored the opinion of the Court, in which Presiding Judge HOWARD and Judge STARING concurred.
OPINION
ESPINOSA, Judge:
¶ 1 In this medical malpractice action, appellants Karyn Rasor and her husband, Donald Miller, (hereafter referred to as the Rasors) appeal the trial court‘s grant of summary judgment in favor of appellee Northwest Medical Center (NWMC or “the hospital“) and its rulings on certain discovery and the denial of leave to secure additional experts. NWMC cross-appeals, asserting the court abused its discretion by ordering it to produce certain patient records. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
Factual and Procedural Background
¶ 2 In reviewing a grant of summary judgment, we view the evidence and all legitimate inferences therefrom in the light most favorable to the nonmoving party. See Gorney v. Meaney, 214 Ariz. 226, ¶ 2, 150 P.3d 799, 801 (App.2007). From July 7 to July 29, 2011, Rasor, then fifty-one years old, was a patient at NWMC, with “a long and complicated past medical history.” Rasor was diagnosed with a faulty mitral valve, coronary artery disease, and congestive heart failure. On July 18, she underwent open-heart surgery lasting over seven hours during which she lay supine. Shortly after the procedure and while in transit to her hospital bed, Rasor suffered a cardiac arrest requiring CPR1 followed by the insertion of an intra-aortic balloon pump (IABP). The IABP was threaded through the femoral artery in Rasor‘s leg to her aorta, requiring that her leg be immobilized.
¶ 3 Rasor, while connected to an external pacemaker, the balloon pump console, various intra-venous lines, and a ventilator, was transported to the intensive care unit (ICU) where she was the sole patient of Nurse Michael Farrand, RN.2 At his deposition, Farrand testified, “[a]nything that deviates the patient‘s position can theoretically cause . . . the actual balloon on the end of the pump, to go out of place” and “you have to be just extremely careful when you move the patient that the lines don‘t get kinked, that nothing gets pulled.”
¶ 4 The IABP was removed on July 21. Farrand described how, during its removal, the patient‘s catheterized leg must be clamped to the bed so tightly that for the first five minutes the patient‘s foot turns blue, with the clamp slowly released over the course of an hour to allow the blood to clot. Thereafter, the patient must lie flat for eight hours so as not to dislodge the clot. On July 22, another ICU nurse noted a discoloration to Rasor‘s coccyx which she described as a suspected deep-tissue injury, a category of pressure ulcer.3 On July 26, Rasor underwent a cardiac catheterization lasting over an hour and after which she was required to keep her leg straight for six hours. On July 27, the nursing staff requested a consult by NWMC‘s wound-care department and a wound-care nurse provided Rasor with a spe-
cialty
¶ 5 In July 2013, the Rasors brought a medical malpractice action against NWMC, alleging that during Rasor‘s hospitalization NWMC had “breached its professional duties . . . , proximately causing the development of a decubitus ulcer” by failing to “appropriately off-load4 . . . Rasor” and “negligently fail[ing] to timely discover” the ulcer. The Rasors retained one expert, a board-certified, wound-care nurse, Julie Ho, R.N., and filed a preemptive motion seeking to introduce Ho‘s expert opinion testimony concerning standard of care, causation, and prognosis. They also filed a motion for partial summary judgment alleging the hospital‘s failure to treat the pressure ulcer for five days after its discovery had violated the standard of care. NWMC then filed its motion for summary judgment, asserting that the Rasors’ “standard of care/causation expert does not qualify under Arizona Rule of Evidence, Rule 702,
¶ 6 In December 2014, the trial court ruled that the Rasors were permitted to introduce Ho‘s “expert opinion . . . regarding wound care,” but deferred the remaining issues until the hearing on NWMC‘s motion for summary judgment. In January 2015, the court denied the Rasors’ motion for partial summary judgment, granted NWMC‘s motion for summary judgment and denied the Rasors’ request to secure a new expert. A formal judgment bearing
Summary Judgment Ruling
¶ 7 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.”
¶ 8 To establish medical malpractice, a plaintiff must prove negligence by showing that the health care provider fell below the standard of care and that such deviation from the standard of care proximately caused the claimed injury. Ryan v. San Francisco Peaks Trucking Co., 228 Ariz. 42, ¶ 23, 262 P.3d 863, 869-70 (App.2011). Section
(1) The 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.
(2) Such failure was a proximate cause of the injury.
Id.; see also Seisinger v. Siebel, 220 Ariz. 85, ¶ 32, 203 P.3d 483, 492 (2009). Typically, the standard of care must be established by expert medical testimony. Ryan, 228 Ariz. at 42, ¶ 23, 262 P.3d at 869-70; see also Boyce v. Brown, 51 Ariz. 416, 421, 77 P.2d 455, 457 (1938) (noting established law that “negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical testimony” unless negligence grossly apparent). Expert medical testimony is also generally required to establish proximate cause unless a causal relationship is readily apparent to the trier of fact. Gregg v. Nat‘l Med. Health Care Servs., Inc., 145 Ariz. 51, 54, 699 P.2d 925, 928 (App.1985).
¶ 9 The first issue on appeal is whether the Rasors’ expert witness, Nurse Ho, was qualified to testify as a standard of care expert pursuant to
¶ 10 In a medical malpractice action, a health professional may provide expert testimony on the appropriate standard of practice or care only if he or she is licensed and meets the following criteria, in relevant part:
1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered 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.
2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person‘s professional time to . . . the following:
(a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty.
. . . .
3. If the defendant is a general practitioner, the witness has devoted a majority of the witness‘s professional time in the year preceding the occurrence giving rise to the lawsuit to . . . the following:
(a) Active clinical practice as a general practitioner.
¶ 11 Section
¶ 12 NWMC argues that Ho is not qualified to testify as to the standard of care for ICU nurses under
¶ 13 The Rasors also assert that “the care at issue concerned the prevention of bed sores, which applied universally to all NW[MC] nurses in all departments; and all restricted in-patients. . . . [and] f[or] this reason, the specialty requirements set forth in
¶ 14 The Rasors further contend that “Medicare views the deep tissue injury suffered by [Rasor] as something that should not have occurred with proper nursing care[,] . . . establish[ing] a basis for the jury to conclude that below standard nursing care proximately caused the condition.” In support of this proposition, the Rasors provide one record citation, to one of their own filings, which does not include any supporting citation; they provide no legal authority and no argument beyond that quoted above. We therefore deem the issue waived. See
Request to Secure New Expert
¶ 16 The Rasors contend that even if the trial court correctly found Ho unqualified to provide standard of care testimony, the court abused its discretion by denying their request for additional time to secure a new expert. We defer to a trial court‘s rulings on discovery and related procedural matters absent an abuse of discretion. See Preston, 238 Ariz. 124, ¶ 15, 357 P.3d at 165.
¶ 17 When they filed their complaint in July 2013, the Rasors also filed a notice certifying that the action involved a breach of professional duty and “acknowledg[ing] the establishment of standard of care and breach requires expert testimony.” The deadline to disclose expert opinions was June 27, 2014. In November 2013, the Rasors disclosed Nurse Ho‘s preliminary affidavit, providing her expertise as a wound-care specialist and opinion that the NWMC intensive care staff had failed to comply with the applicable standard of care in preventing the wound by “offloading” Rasor, and in caring for the wound by “pressure prevention and treatment.” On June 27, they supplemented their disclosure statement as to Ho‘s expected testimony at trial. Ho was deposed on October 17, 2014 and on October 28, the Rasors filed a motion seeking leave to introduce Ho‘s testimony “concerning standard of care, causation and prognosis pursuant to evidence Rule 703 and
¶ 18 Recently, in Preston, a case with similar procedural facts, this court concluded the trial court had erred by denying plaintiffs additional time to substitute another standard of care expert. 238 Ariz. 124, ¶¶ 2-7, 19, 357 P.3d at 163-64, 167. We observed that
¶ 19 As noted above, the trial court had granted the Rasors’ motion to admit Ho‘s expert opinion, stating “how that operates within the context of wound care for a person in the ICU, that will come out at trial and the jury will evaluate whether or not her wound care expertise is fully responsive to the issues here.” The court additionally said, “I am telling you that I‘m going to let you go with a wound care witness rather than an ICU nurse. You can take that to the bank. . . .” Thus, the trial court strongly indicated Ho‘s opinions would be admitted at trial and it would be left to the jury to assess the credibility and weight to give them. See Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, ¶ 24, 322 P.3d 168, 176 (App.2014) (noting well-established rule that jury determines credibility and weight afforded to reliable expert testimony). Accordingly, after subsequently granting NWMC‘s motion for summary judgment, the trial court erred in denying the Rasors additional time to obtain qualifying expert testimony, and we therefore reverse its order so doing.
Motion for Protective Order
¶ 20 The Rasors next contend the trial court abused its discretion by preventing them from conducting a
¶ 21 In January 2014, the trial court heard argument by the parties and issued the requested protective order, finding the “request for the deposition is premature” given the early stage of the case and lack of any scheduling order. The following April, the Rasors filed another
¶ 22 “A trial court has broad discretion in ruling on discovery issues, and we will not disturb its ruling absent a clear abuse of discretion.” Tritschler v. Allstate Ins. Co., 213 Ariz. 505, ¶ 41, 144 P.3d 519, 532 (App.2006). An abuse of discretion occurs if the court commits legal error in reaching a dis-
cretionary
¶ 23
I‘m going to find that the request for the deposition is premature, and let‘s get this established so that we have timelines and schedules and there has been some appropriate setting of those limits. . . . [A]t this stage . . . it would not be an effective discovery tool because . . . the defendants [must] be able to determine the necessary people to have available for you and to ensure that they can provide those people who . . . will respond to . . . the level of your inquiry.
As to the grant of the protective order, we cannot say the trial court abused its broad discretion in discovery matters by deeming the Rasors’ request for a
¶ 24 As for the Rasors’ noticed April 2014
provide a reference to any responsive motion by NWMC or an accurate record cite to any related ruling by the trial court. The issue is therefore waived. See State Farm Mut. Auto. Ins. Co. v. Novak, 167 Ariz. 363, 370, 807 P.2d 531, 538 (App.1990) (declining to consider matters insufficiently argued and without citation to authority or record). Further, the May 2014 notice exceeded the scope established by the court for the
Cross Appeal
¶ 25 In its cross appeal, NWMC contends the trial court abused its discretion in ordering it to produce patient records of all ICU patients who had developed pressure ulcers in the four years preceding Rasor‘s admission. As part of their October 2013
¶ 26 In November 2013, NWMC filed its motion for a protective order con-
tending
may lead to discovery of recognition by [NWMC] of certain policies, practices and prevention procedures affecting the assessment of standard of care. Practices and procedures designed for compliance with standard of care may depend on [NWMC]‘s responses to previous claims or incidents of the condition. Additionally, the positions advanced by [NWMC] in response to decubitus ulcer condition claims may lead to admissible evidence about claims advanced in this case.
After a hearing on the motion for protective order, the trial court implicitly denied the motion but narrowed the permitted discovery, ruling that “[the Rasors] are entitled to discovery of prior similar incidents of patients developing decubitus ulcers while in intensive care” and ordered NWMC to produce all such records “for the four years preceding [Rasor]‘s admission to Northwest Medical Center on July 7, 2011.” It later denied NWMC‘s motion for reconsideration. In its cross-appeal, the hospital argues the trial court‘s order constituted an abuse of discretion because: 1) even with confidential information redacted, the order required disclosure of privileged information; 2) the information was not relevant to the subject matter of the Rasors’ lawsuit; and 3) the burden in responding to the order “was extreme.” We address these claims in turn.
¶ 27 Pursuant to
¶ 28 NWMC first argues the trial court abused its discretion because producing the patient records would require the disclosure of privileged information. Medical records are confidential and receive statutory protection from discovery. See
¶ 29 The Rasors sought evidence of past occurrences of decubitus ulcer conditions, in part, to discover whether there had been “other incidents indicat[ing] a failure of compliance by staff with known repositioning requirements” or “evidence of knowledge on the part of [NWMC] of the need to implement changes.” If such incidents had occurred, we cannot say they would be irrelevant to the Rasors’ claims, as more fully discussed below. Cf.
394, 656 P.2d at 1255 (disclosure of non-party medical records relevant to plaintiff‘s negligent-supervision claim against hospital to show it had notice of other incidents of physician performing unnecessary procedure). And the trial court ensured sufficient privacy safeguards by ordering NWMC to “redact any confidential patient information from the records produced.” See id. at 394-95, 656 P.2d at 1255-56. Accordingly, its order did not violate Arizona‘s statutory physician-patient privilege.
¶ 30 NWMC contends, however, that its non-party patient records are further privileged under the federal Patient Safety and Quality Improvement Act (hereafter patient safety act),
¶ 31 NWMC acknowledges, however, that “medical record[s] . . . or any other original patient or provider record[s]” are expressly excluded from patient safety work product.
¶ 32 The act expressly notes that patient safety work product “does not include information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.”
that “[s]uch separate information or a copy thereof reported to a [PSO] shall not by reason of its reporting be considered patient safety work product.” Id. Clearly, the non-party medical records at issue here were not specifically created for safety or quality control purposes; instead, they were created to diagnose, treat, and/or evaluate a medical condition. Thus, even if identifying the “specific patients whose records were to be produced” requires accessing patient safety work product through the PSO, doing so would not violate the act because the information sought is exempt from protection. Id.; see also
¶ 33 NWMC next argues the medical records were not relevant and the trial court‘s reliance on Purcell v. Zimbelman, 18 Ariz. App. 75, 500 P.2d 335 (1972) was “misplaced” because “knowledge of a danger was not an issue in the case.” In its ruling ordering NWMC to produce the medical records, the trial court quoted Purcell, stating:
In a negligence case, where knowledge of a danger is an issue, “evidence of the occurrence of other accidents or injuries from the doing of a particular act or the employment of a particular method on occasions prior to the one in question is admissible to show that the person charged knew or should have known of the danger therein, provided it is shown that the conditions of the previous occurrences were the same or substantially similar to those of the one in question.”
18 Ariz. App. at 83, 500 P.2d at 343. NWMC apparently interprets the “danger” in the court‘s ruling to mean the potential danger
¶ 34 To the extent the trial court‘s ruling on NWMC‘s motion for a protective order was predicated on the mistaken assumption that “knowledge of a danger” was in dispute, it erred in allowing discovery of prior similar incidents on that basis. The Rasors, however, as previously noted, argued that the requested discovery would be relevant to proving NWMC‘s staff had a habit or routine of not following the hospital‘s repositioning procedures. See
¶ 35 Evidence of a person‘s habit or the routine practice of an organization may be admitted to prove that the person or organization on a particular occasion “acted in accordance” with the habit or routine practice.
¶ 36 We emphasize that the issue here, unlike in Gasiorowski, is not relevance for admissibility at trial, but whether the standard for pretrial discovery of the medical records is met. See Catrone v. Miles, 215 Ariz. 446, ¶ 25, 160 P.3d 1204, 1212 (App.2007). Thus, we assess the relevancy requirement more broadly than we would when evaluating admissibility. Brown v. Superior Court, 137 Ariz. 327, 332, 670 P.2d 725, 730 (1983) (relevancy requirement at discovery stage “more loosely construed than that required at trial” and need only be “reasonably calculated to lead to the discovery of admissible evidence“). In so doing, we conclude the medical records the Rasors sought were reasonably calculated to lead to the discovery of admissible evidence that the ICU nurses who had treated Rasor had a habit or routine practice of failing to follow ICU repositioning requirements. See
¶ 37 Finally, NWMC contends the trial court‘s order was “overly broad and unduly burdensome” because it would require the hospital to review four years of “voluminous” patient records “to identify patients in the ICU.” NWMC presented this argument below, and the court afforded it the opportunity to submit an affidavit providing specific reasons as to why it “[w]ouldn‘t be able to generate that [information].” NWMC failed to supply such an affidavit. In light of this, it has not demonstrated the request was unduly burdensome. See
Disposition
¶ 38 For the foregoing reasons, the trial court‘s January 2014 ruling on the Rasors’
Notes
I am going to grant the motion to introduce [Ho‘s] expert opinion . . . regarding wound care. And then as it‘s applied to how that operates within the context of wound care for a person in the ICU, that will come out at trial and the jury will evaluate whether or not her wound care expertise is fully responsive to the issues here. . . . [W]ound care is a critical issue of this case. Whether or not it‘s dispositive of the care that . . . Rasor received will be a question for the jury to determine.
[a]s of the date of the filing of the motion [for protective order], the Rasors had not submitted a preliminary expert opinion affidavit required by A.R.S. § 12-2603 demonstrating that the case ha[d] any merit, had not requested a Rule 16(c)[, Ariz. R. Civ. P.,] pretrial conference, no discovery or pretrial deadlines had been established, and fact witness depositions . . . had not been requested.