Rasor v. Northwest Hospital, LLC Dba Northwest Medical Center

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

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
Filed May 17, 2016

Appeal from the Superior Court in Pima County
No. C20133700
The Honorable Leslie Miller, Judge

AFFIRMED IN PART; REVERSED AND VACATED IN PART;
AND REMANDED

COUNSEL

Miniat & Wilson, LPC, Tucson
By Kevin E. Miniat
Counsel for Plaintiffs/Appellants/Cross-Appellees

Campbell, Yost, Clare & Norell, P.C., Phoenix
By Kari B. Zangerle and Mary G. Isban
Counsel for Defendant/Appellee/Cross-Appellant
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

OPINION

Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Howard and Judge Staring concurred.

E S P I N O S A, 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.

1Cardiopulmonary resuscitation.

2
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

¶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
specialty mattress. Rasor’s pressure ulcer ultimately reached “stage

2Farrand testified at his deposition that he had “not take[n]
another patient” “for [his] entire shift” because “as long as a patient
is unstable, [he would] not take a second one.” He noted, “[i]f a
patient had a difficult surgery with unexpected complications, we
generally will not pair them until we get rid of some of the extra
equipment we were not expecting.”
3 A reference provided by the Rasors below describes a
pressure ulcer as a “localized injury to the skin and/or underlying
tissue usually over a bony prominence, as a result of pressure, or
pressure in combination with shear.” European Pressure Ulcer
Advisory Panel & National Pressure Ulcer Advisory Panel,
Prevention of Pressure Ulcers: Quick Reference Guide, at 7 (2009).

3
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

IV,” eventually requiring thirty-one debridement procedures and
resulting in pain and symptoms alleged to be permanent.

¶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-load[4] . . . 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, A.R.S. § 12-2603, and A.R.S. § 12-2604 to render
standard of care or causation opinions in this matter” and
consequently the Rasors “are unable to establish that [the hospital]
breached the applicable standard of care and [the] Complaint should
be dismissed.”

¶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 Ariz. R.
Civ. P. 54(c) language was entered, dismissing the Rasors’ complaint
with prejudice, and both parties appealed. This court has
jurisdiction over the Rasors’ appeal and NWMC’s cross-appeal
pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

4According to medical literature provided by the Rasors, to
“off-load[]” is to minimize pressure. Institute for Clinical Systems
Improvement, Pressure Ulcer Prevention and Treatment Protocol, at 20
(3d ed. Jan. 2012).

4
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

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.” Ariz. R. Civ. P. 56(a). We
review de novo a trial court’s grant of summary judgment and view
the evidence and all reasonable inferences therefrom in the light
most favorable to the party opposing the motion. Felipe v. Theme
Tech Corp., 235 Ariz. 520, ¶ 31, 334 P.3d 210, 218 (App. 2014); see also
Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).

¶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 12-563, A.R.S., provides the following as the necessary
elements of proof:

(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. 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

5
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

Med. Health Care Servs., Inc., 145 Ariz. 51, 54, 699 P.2d 925, 928 (App.
1985).

Qualification of Expert Witness

¶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 A.R.S. § 12-2604. The Rasors’ medical negligence
claim centered on the care provided by NWMC’s ICU nurses
between July 19 and July 22. Ho opined that NWMC had failed to
reposition Rasor during her recovery, proximately causing the
pressure ulcer to develop, and failed to order a wound-care
consultation and specialty mattress after discovering the pressure
ulcer, causing it to worsen. Ho was the Rasors’ sole expert as to
standard of care, causation, and prognosis. NWMC contends, as it
did below in its motion for summary judgment, that while Ho may
be an expert on wound care, she is not an ICU nurse and such a
nurse is a specialist under § 12-2604. The Rasors respond that Ho’s
opinions, together with testimony by the ICU nurses, provided
sufficient evidence of the standard of care. “Apart from issues of
statutory interpretation, which we review de novo, we review trial
court determinations on expert qualifications for an abuse of
discretion.” Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, ¶ 30,
296 P.3d 42, 50 (2013). This standard of review applies to
admissibility questions in summary judgment proceedings. Id.

¶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

6
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

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.

§ 12-2604(A). When the testimony is offered against a health care
professional employed by the defendant health care institution,
subsection A applies “as if the health professional were the party or
defendant against whom or on whose behalf the testimony is
offered.” § 12-2604(B).

¶11 Section 12-2604(A) applies to medical malpractice cases
involving nursing care. Cornerstone Hosp. of Se. Ariz., L.L.C. v.
Marner, 231 Ariz. 67, ¶ 41, 290 P.3d 460, 472 (App. 2012). In Marner,
we held that nursing qualifies as a “health profession” for purposes
of § 12-2604(A)(2). Id.5 A “‘specialty’” pursuant to § 12-2604(A)(2)

5 The Rasors contend Marner supports their position that
critical-care nursing is not a specialty, asserting the court “declined
to distinguish the classifications of RN, LPN and CNA under § 12-

7
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

includes specialties and subspecialties. Baker, 231 Ariz. 379, ¶ 24,
296 P.3d at 49. The goal of § 12-2604 is to “ensur[e] that experts have
qualifications and experience comparable to the [medical
professional] whose conduct is at issue.” Id. As the statute
indicates, there must be symmetry as delineated in § 12-2604(A)
between the pertinent qualifications and experience of the defendant
health care provider and the expert who testifies to the standard of
care regarding the care and treatment at issue. See Baker, 231 Ariz.
379, ¶ 12, 296 P.3d at 47. Here, Ho is a certified wound-care nurse
with specialized education in wound care and ostomy, and worked
in that specialty the year before Rasor’s injury.

¶12 NWMC argues that Ho is not qualified to testify as to
the standard of care for ICU nurses under § 12-2604 because such
nurses fall under their own specialty. The Rasors disagree, asserting
that NWMC’s ICU nurses had no “additional education or certificate
beyond their general RN licenses.” They acknowledge however,
Ho’s contrary opinion that ICU nurses are, in fact, specialists.6 In

2604 . . . [and] primarily relied on the Arizona Administrative Code
[(AAC)].” In Marner, however, we relied on the AAC chiefly to
determine that “the RN is the most qualified of the three [nursing
licensures] in terms of education and experience required for
certification,” in support of our holding that “[i]t would be absurd to
conclude that an RN is not qualified to provide expert opinion on
the standard of care for professions that require more limited skills
than are required of a registered nurse on the ground the RN is
overqualified.” 231 Ariz. 67, ¶¶ 39-41, 290 P.3d at 471-72.
Specialization among RNs, however, was not addressed.
6 We note that our supreme court has held that the term
“specialty” as used in § 12-2604(A)(2) includes practice areas
certified as specialties or subspecialties by medical boards or other
certifying bodies, as well as those that are eligible for certification.
Baker, 231 Ariz. 379, ¶¶ 21, 22, 24, 296 P.3d at 49 (determining lower
court too narrowly read “‘specialty’ as embracing only the twenty-
four [American Board of Medical Specialties] member boards,
thereby excluding a broad range of practice areas certified by these
boards as subspecialties or by other certifying bodies”). The Rasors

8
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

any event, we need not decide the issue of specialization under
§ 12-2604(A)(1) because Ho does not meet the criteria of § 12-
2604(A)(2) or (3). If the ICU nurses are considered specialists, Ho
was not practicing as an ICU nurse for the year prior to Rasor’s
injury for purposes of § 12-2604(A)(2). And if ICU nurses are
instead viewed as generalists, Ho did not work as a generalist the
year before Rasor’s injury for purposes of § 12-2604(A)(3), but rather
as a wound-care specialist.7 Because Ho was neither an ICU nurse
nor a practicing generalist in the year before Rasor’s injury, she is
not qualified to testify as a standard of care expert for ICU nurses
pursuant to § 12-2604(A). See Preston v. Amadei, 238 Ariz. 124, ¶¶ 13-
14, 357 P.3d 159, 165 (App. 2015) (internist with cardiology practice
not qualified to testify to standard of care for internist without such
specialty in treating cardiac episode); see also Woodard v. Custer, 719
N.W.2d 842, 860 (Mich. 2006) (internal medicine physician with
infectious disease practice not qualified to testify regarding standard
of care of defendant physician who practiced “general internal
medicine”).

¶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 A.R.S.
§ 12-2604 d[o] not apply.” NWMC responds that “it is in the
judgment of the ICU nurse in determining how much or how
frequently a critically ill patient can be moved and needs to be
prioritized if the patient is unstable or repositioning could be

provide no support for their contention that ICU nursing does not
qualify as a specialty under § 12-2604 other than asserting NWMC’s
ICU nurses had no “additional education or certificate,” but they do
not allege that ICU nurses are ineligible for certification. We take
judicial notice that ICU nurses can indeed obtain critical care
certification through the American Association of Critical-Care
Nurses. See http://www.aacn.org/.
7 Since July 2004, Ho has worked at a long-term, acute-care
facility performing admission assessments, re-assessments, and care
planning, and the Rasors have not denied her status as a specialist.

9
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

detrimental to the patient.” And Ho acknowledged that what
interventions may be taken depend on the condition of the patient.
We therefore reject the Rasors’ claim that the hospital’s general
repositioning policy was the applicable standard of care for the
intensive care department.

¶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 Ariz. R. Civ. P. 13(a)(7); Melissa
W. v. Dep’t of Child Safety, 238 Ariz. 115, ¶ 9, 357 P.3d 150, 152-53
(2015) (failure to develop argument or cite to relevant authority
waives argument on appeal).

¶15 A trial court may properly grant summary judgment on
a claim of medical negligence when, as here, the plaintiff fails to
produce the required expert testimony concerning the “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.” § 12–563(1); see
Seisinger, 220 Ariz. 85, ¶ 33, 203 P.3d at 492 (except when it is a
matter of common knowledge, “the standard of care normally must
be established by expert medical testimony” and failure to produce
the required expert testimony mandates judgment for defendant).
Thus, to the extent the trial court found the Rasors’ standard of care
expert unqualified, it correctly granted NWMC’s motion for
summary judgment. However, we conclude the court erred by
failing to allow the Rasors to secure a new expert, as discussed next.8

8 Because NWMC’s motion for summary judgment was
correctly granted, it is unnecessary to address whether Ho was
qualified as an expert under Rule 702, Ariz. R. Evid., and whether
she was competent to testify to medical causation or prognosis.
And, for the same reason, we need not consider the Rasors’

10
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

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 A.R.S. § 12-2604.”9 In November and December 2014, and

argument that causation is “readily apparent to a jury, even without
expert testimony.” See Ryan, 228 Ariz. 42, ¶ 23, 262 P.3d at 869-70
(medical malpractice plaintiff must prove negligence by showing
health care provider fell below standard of care and such deviation
from standard of care proximately caused claimed injury).
9At a hearing on the motion, the trial court noted it had yet to
consider the summary judgment motions that had been filed, but
stated:

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

11
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

again in January 2015, the Rasors requested leave to “supplement
with additional expert testimony for any areas of deficiency
determined by the Court.” 10 Simultaneous with its summary
judgment ruling, the court, without explanation, denied the Rasors’
request for additional time to secure a new expert.

¶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 § 12-
2603 sets out the requirements for preliminary disclosures of expert
opinions in medical malpractice cases and provides “‘[u]pon any
allegation of insufficiency of the affidavit, the court shall allow any
party a reasonable time to cure any affidavit, if necessary.’” Id. ¶ 17,
quoting § 12-2603(F) (alteration in Preston). We noted that although
the plaintiffs in Preston had disclosed their expert’s affidavit “well
within the discovery period,” the defendant “did not raise any direct
challenge to the sufficiency of the affidavit, even upon conducting
[plaintiffs’ expert’s] deposition, and instead filed a motion for
summary judgment after the disclosure deadline had expired.” Id. ¶
19. Likewise, in this case, NWMC did not challenge the sufficiency
of the affidavit but, nearly a year after the Rasors filed it and after

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.
10The Rasors included a one sentence request to this effect at
the end of their November 2014 reply to NWMC’s opposition to
introduce Ho’s testimony and at the end of their opposition to
NWMC’s motion for summary judgment. They repeated the request
at oral argument on the two summary judgment motions.

12
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

the disclosure deadline had expired, deposed the expert and filed its
motion for summary judgment.11

¶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 Rule 30(b)(6), Ariz.
R. Civ. P. deposition “to investigate the cause of . . . Rasor’s deep
tissue injury.” In September 2013, the Rasors served a notice of
Rule 30(b)(6) deposition requesting that NWMC produce its

11In its answering brief, NWMC points out that at an April
2014 scheduling conference, its counsel requested the Rasors specify
the expert or experts they intended to call to establish standard of
care and causation. NWMC did not, however, challenge Ho’s
qualifications and foundation to testify as an expert witness until its
response to the Rasors’ motion to introduce Ho’s expert testimony in
November 2014. NWMC does not address this court’s ruling in
Preston although that decision was filed before NWMC submitted its
answering brief and involved the same law firm as represents
NWMC in this case.

13
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

representative most knowledgeable about, inter alia, the cause of
Rasor’s pressure ulcer and, in October 2013, served an amended
notice to the same effect. After corresponding with the Rasors
regarding the categories listed in their notices, NWMC filed a
motion for protective order.

¶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 Rule 30(b)(6) deposition notice seeking
information about (1) the first observation of the ulcer, (2) steps
taken by NWMC to prevent the development of ulcers, (3) steps
taken by NWMC to prevent the worsening of Rasor’s ulcer, and
(4) staff compliance with record-keeping policies. The court
permitted the Rasors to question the representatives to the extent of
“policies, procedures and training of the nurses and if the
representatives were personally involved in any aspect of [Rasor’s]
care, that aspect of her care.” In May, the Rasors filed yet another
Rule 30(b)(6) notice listing seven categories of information,
including “[t]he cause of [Rasor]’s decubitus ulcer.” The hospital
objected to the notice, and the court granted a protective order
stating “[t]he [n]otice is outside the areas that have been permitted
in this deposition. So [the Rasors] need to provide a notice for a
30(b)(6) deposition that comports to the areas that I indicated were
appropriate.”

¶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 discretionary conclusion, or
if the record lacks substantial evidence to support its ruling. Id.

¶23 Rule 30(b)(6) provides for the deposition of an
organization when “a party desiring discovery does not know what
individual in the responding organization should be called.” Ariz.
R. Civ. P. 30(b)(6) bar committee note to 1970 Amendment. When
noticed, the named organization “designate[s] one or more officers,
directors, or managing agents, or other persons who consent to

14
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

testify on its behalf” and “[t]he persons so designated . . . testify as to
matters known or reasonably available to the organization.” Ariz. R.
Civ. P. 30(b)(6). At the time of the hearing on the protective order,
no scheduling order was in place and discovery was just
commencing.12 The trial court stated:

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 Rule 30(b)(6) deposition premature when
discovery had not yet begun in the case. See Marquez v. Ortega, 231
Ariz. 437, ¶ 14, 296 P.3d 100, 104 (App. 2013) (“We do not substitute
our discretion for that of the trial court.”).

12In its answering brief, NWMC points out:

[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.

15
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

¶24 As for the Rasors’ noticed April 2014 Rule 30(b)(6)
deposition, they do not present any argument on the matter13 nor do
they 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 Rule 30(b)(6) deposition, and the
Rasors do not appear to have raised the issue of the cause of the
ulcer with the court at the hearing or elsewhere.14 We cannot say the
trial court abused its discretion in granting NWMC’s motion for
protective order relating to the Rasors’ May 2014 notice of
deposition.

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
Rule 30(b)(6) notice of deposition, the Rasors had requested that
NWMC produce the representative most knowledgeable about
“[o]ther incidents of patients developing decubitus ulcer conditions
while hospitalized at [NWMC’s] facilities,” “[r]ecords identifying
other incidents of the development of pressure sore ulcer conditions
during hospitalization at [NWMC’s] facilities from 2001 through
2011[,]” and “[a]ny assessments, evaluations or reports discussing
the incidence of pressure sore ulcer conditions in [NWMC’s]

13The Rasors’ argument focuses on their inability to question
NWMC regarding the cause of the ulcer, a topic not listed in the
April 2014 notice of deposition. Although their May 2014 notice of
deposition included as a topic, “[t]he cause of [Rasor]’s decubitus
ulcer,” the court had previously established the boundaries of the
deposition.
14In
their briefs, the Rasors provide no record citation to the
May 2014 notice or any other related records.

16
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

facilities and/or any discussion concerning reducing the incidence
of the conditions.”

¶26 In November 2013, NWMC filed its motion for a
protective order contending the Rasors’ request for information
about other patients who had developed pressure ulcers was
“overly broad, unduly burdensome, irrelevant, not reasonably
calculated to lead to the discovery of any admissible evidence, and
would violate peer review/quality assurance processes—not to
mention federal HIPAA[ 15 ] rules and regulations.” In their
response, the Rasors asserted “[t]h[e] discovery is calculated to lead
to evidence of habit or routine,” citing Gasiorowski v. Hose, 182 Ariz.
376, 897 P.2d 678 (App. 1994), and that it

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

15Health Insurance Portability and Accountability Act.
NWMC has not meaningfully re-urged this specific argument on
appeal.

17
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

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 Rule 26(b)(1)(A), Ariz. R. Civ. P., unless
otherwise limited, “[p]arties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to the claim or
defense of the party seeking discovery or to the claim or defense of
any other party.” A trial court has broad discretion over discovery
matters, and we will not disturb that discretion absent a showing of
abuse. Blazek v. Superior Court, 177 Ariz. 535, 537, 869 P.2d 509, 511
(App. 1994). Such abuse occurs when the court misapplies the law
or predicates its decision upon irrational bases. Id. The existence
and scope of an evidentiary privilege is a question of law we review
de novo. See Adv. Cardiac Specialists, Chartered v. Tri-City Cardiology
Consultants, P.C., 222 Ariz. 383, ¶ 6, 214 P.3d 1024 (App. 2009).

¶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 A.R.S. §§ 12-2235,
12-2294.01. Notwithstanding these protections, redacted non-party
medical records may still be subject to discovery if the records are
relevant and certain precautions are taken to protect patient
identities. See Ziegler v. Superior Court, 134 Ariz. 390, 394-95, 656
P.2d 1251, 1255-56 (App. 1982).

¶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. Ariz. R. Evid.
406 (evidence of habit of person or routine practice of organization
relevant to prove conduct of that person or organization was in

18
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

conformity with habit or routine practice on a particular occasion);
Gasiorowski, 182 Ariz. at 379, 897 P.2d at 681 (other similar incidents
relevant to show defendant physician had habit or routine practice
of threading epidural catheters to excessive depth); Ziegler, 134 Ariz.
at 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), 42 U.S.C.
§ 299b-21—299b-26. That act protects documents, communications,
and other information that qualifies as “patient safety work
product,” 42 U.S.C. § 299b-22, including “any data, reports, records,
memoranda, analyses . . . or . . . statements . . . assembled or
developed by a provider for reporting to a patient safety
organization and are reported to a patient safety organization[,] or . .
. developed by a patient safety organization for the conduct of
patient safety activities.” 42 U.S.C. § 299b-21(7)(A). Such
information is not subject to discovery in legal proceedings. See
§ 299b-22(a)(2). A “patient safety organization” (PSO) is one
certified by the Secretary of the Department of Health and Human
Services whose “mission and primary activity. . . [is] to conduct
activities . . . to improve patient safety and the quality of health care
delivery.” 42 U.S.C. §§ 299-21(4), 299-24(a), (b)(1)(A).

¶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. § 299b-
21(7)(B). It nonetheless contends the privilege applies because
“identify[ing] specific patients whose records were to be produced”
would require the work product “to be accessed.” We find this
argument unpersuasive.

19
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

¶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.” § 299b-21(7)(B)(ii). It further elaborates 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 § 299b-22(c)(2)(B) (exempting “nonidentifiable” patient
safety work product from confidentiality requirements). And even
if the medical records could be regarded as safety work product, the
hospital has not met its burden of establishing the medical records
were reported to its PSO as required by the Act. See § 299b-21(7)(A)
(for record “assembled or developed” by a provider to a PSO to
qualify as patient safety work product, it must actually be reported
to the PSO). Although NWMC provided the name of its PSO and
claims it duly submitted the patient records at issue, it offered no
proof to support the latter assertion. We conclude the patient safety
act is inapplicable.

¶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

20
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

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 that
a patient may develop pressure ulcers, as well as the harm they can
cause. And it correctly notes that the hospital has never claimed to
have been unaware of the potential danger of pressure ulcers and
that the Rasors acknowledge NWMC “recognized th[e] risk [of
pressure ulcers]” and had procedures in place to prevent them.

¶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 Ariz. R.
Evid. 406. We will affirm a trial court’s decision if legally correct for
any reason. See Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9, 130 P.3d 538,
540 (App. 2006).

¶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. Ariz. R. Evid. 406. Habit is a regular
response to a repeated specific situation. See Gasiorowski, 182 Ariz. at
379, 897 P.2d at 681. In Gasiorowski, this court held that the trial
court erred in excluding evidence of other similar incidents to prove
the defendant physician’s alleged habit or “general pattern” of
failing to observe the standard of care, noting that “[e]vidence is
relevant and probative if it has any tendency to make any fact of
consequence more or less probable.” Id. at 380, 897 P.2d at 682. We
reasoned that “[j]ust as Rule 406 supported [defendant’s]
introduction of routine practice evidence to attempt to establish his
habitual compliance with the standard of care, it also supported
plaintiff’s attempt to establish through the observations of delivery

21
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

room nurses that [defendant] had a routine practice of threading
epidural catheters to excessive depth.” Id.

¶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 Ariz. R. Civ. P. 26(b)(1); Catrone, 215
Ariz. 446, ¶ 25, 160 P.3d at 1213-14. Accordingly, we will not disturb
the trial court’s discovery ruling on this basis.

¶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 Ariz. R. Civ. P. 26(b)(1)(B) (party seeking
non-disclosure because of “undue burden or expense” must first
show information not reasonably accessible).

Disposition

¶38 For the foregoing reasons, the trial court’s January 2014
ruling on the Rasors’ Rule 30(b)(6) deposition and its May 2014
ruling permitting the Rasors discovery regarding other NWMC ICU
patients are affirmed, but its denial of the Rasors’ request for
additional time to secure a new expert witness is reversed, its

22
 RASOR v. NORTHWEST MEDICAL CENTER
Opinion of the Court

judgment in favor of NWMC is vacated, and the case is remanded
for further proceedings consistent with this decision.

23