rasor/miller v. Northwest Hospital LLC

IN THE

SUPREME COURT OF THE STATE OF
ARIZONA

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
Filed October 18, 2017

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

Opinion of the Court of Appeals, Division One
239 Ariz. 546 (App. 2016)
REVERED IN PART, VACATED IN PART, REMANDED

COUNSEL:

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,
 RASOR/MILLER V. NORTHWEST HOSPITAL, LLC
Opinion of the Court

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,

2
 RASOR/MILLER V. NORTHWEST HOSPITAL, LLC
Opinion of the Court

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 (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 (App. 2016). Because the trial court

3
 RASOR/MILLER V. NORTHWEST HOSPITAL, LLC
Opinion of the 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.

¶9 The court of appeals ruled, however, that Rasor should have
been allowed to find a different expert. Id. at 553 ¶ 19. Citing Preston v.
Amadei, 238 Ariz. 124 (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. 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 534 ¶ 19.

¶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 (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.

4
 RASOR/MILLER V. NORTHWEST HOSPITAL, LLC
Opinion of the Court

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 (“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 (2009); Hunter v. Benchimol, 123 Ariz. 516, 517 (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

5
 RASOR/MILLER V. NORTHWEST HOSPITAL, LLC
Opinion of the Court

. . . 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 lawsuit,” the expert must have “devoted a majority of the person’s
professional time to either or both . . . : (a) [t]he active clinical practice of the
same health profession as the defendant and . . . in the same specialty or
claimed specialty”; or (b) the instruction of students in the same healthcare
profession or specialty. § 12-2604(A)(2)(a)–(b).

¶16 Rasor argues that before NWMC could file its motion for
summary judgment challenging Ho’s qualifications, it was first required to
challenge the preliminary expert affidavit pursuant to § 12-2603(F). Rasor
asserts that by failing to follow this procedure, NWMC effectively waived
its opportunity to challenge Ho’s qualifications. NWMC’s failure to do so,
in combination with filing a motion for summary judgment after the expert
disclosure deadline expired, effectively deprived her an opportunity to
obtain a qualifying expert.

¶17 The court of appeals has reached different conclusions
regarding whether challenging an expert’s affidavit under § 12-2603 is a
prerequisite to challenging an expert’s qualifications under § 12-2604. As
did the appeals court here, the court in Preston ruled that when an expert
affidavit was timely produced and unchallenged, but the expert’s
qualifications were challenged only later in a summary judgment motion,
“the trial court should have allowed Plaintiffs additional time to substitute
another standard of care expert.” 238 Ariz. at 131 ¶ 19; see also Sanchez v.
Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 323–24 ¶¶ 20–24 (App. 2008)
(holding that § 12-2603 provides exclusive remedy for testing insufficiency
of expert affidavit).

¶18 By contrast, in St. George v. Plimpton, 241 Ariz. 163 (App.
2016), the court affirmed summary judgment dismissing a medical
malpractice claim for failure to establish expert qualifications. The court
held that once the motion for summary judgment was filed, to procure
additional time to find an alternative, the plaintiff would have to file an
affidavit pursuant to Arizona Rule of Civil Procedure 56(d) (formerly Rule
56(f)), which prescribes the procedure for seeking additional evidence to
combat a summary judgment motion. St. George, 241 Ariz. at 168 ¶ 30.

6
 RASOR/MILLER V. NORTHWEST HOSPITAL, LLC
Opinion of the Court

Because plaintiff did not file a Rule 56(d) affidavit and request for relief, the
court held that the trial court did not err in denying extra time. Id. at ¶ 32,
169 ¶ 37; see also Awsienko v. Cohen, 227 Ariz. 256, 261 ¶ 22 n. 5 (App. 2011)
(affirming summary judgment based on deficient expert qualifications
when no challenge pursuant to § 12-2603(F) was made to expert affidavit).

¶19 We conclude that challenging an expert’s affidavit under
§ 12-2603 is not a prerequisite for filing a summary judgment motion for
lack of requisite expert qualifications under § 12-2604. Rather, as the court
of appeals held in St. George, the proper recourse for a plaintiff whose
expert’s qualifications are challenged for the first time in a summary
judgment motion is to seek relief under Rule 56(d).

¶20 Our primary goal in interpreting statutes is to effectuate the
legislature’s intent. Wade v. Ariz. State Ret. Sys., 241 Ariz. 559, 561 ¶ 10
(2017). “If the statute is subject to only one reasonable interpretation, we
apply it without further analysis.” Id. (quoting Glazer v. State, 237 Ariz. 160,
163 ¶ 12 (2015)). “Words in statutes should be read in context in
determining their meaning.” Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7
(2017). Where the meaning is unclear from language and context, we may
employ secondary tools, such as considering legislative history, effects and
consequences, and spirit and purpose. Baker, 231 Ariz. at 383 ¶ 8.

¶21 By their terms, §§ 12-2603 and -2604 do not require that a
defendant challenge a preliminary expert affidavit as a precondition for
moving for summary judgment based on a plaintiff’s inability to support
the claim with requisite expert testimony. Nor do they state that the “cure”
provision of § 12-2603(F) applies other than in the context of a challenge to
the preliminary expert affidavit.

¶22 Section 12-2603 pertains exclusively to preliminary expert
witness affidavits, which only plaintiffs must provide. The substantive
requirements of § 12-2603(B) refer three times to the affidavits as
“preliminary,” indicating that this is a threshold procedural requirement
for a plaintiff. Likewise, the remedies set forth in § 12-2603(F) apply
specifically to preliminary expert affidavits, providing that upon the court’s
or defendant’s motion, the court shall dismiss an action without prejudice
for failure to file a preliminary affidavit when required; and that where the
preliminary affidavit is insufficient, the court shall allow a party reasonable

7
 RASOR/MILLER V. NORTHWEST HOSPITAL, LLC
Opinion of the Court

time to cure it. The statute thus requires a preliminary showing that the
plaintiff can provide the expert testimony necessary to support the claim.
If the plaintiff fails to do so, the court may dismiss the case without
prejudice, thus leading to prompt resolution of meritless cases without
unnecessarily wasting time or resources.

¶23 By contrast, the later-enacted § 12-2604 sets requirements for
all expert standard-of-care witnesses on both sides in medical malpractice
cases. Section 12-2604 gives substance to the proof requirements of
§ 12-563, without which a malpractice claim cannot succeed. Preliminary
expert affidavits must be served on defense counsel shortly after the
complaint is filed. See supra ¶ 14. Thus, even after the preliminary affidavit
is served, it might not be clear to defense counsel until depositions or other
discovery that an expert is unqualified or that her testimony will be
insufficient to sustain the claim. Moreover, the preliminary affidavit expert
may be different than the testifying expert. It does not make sense,
therefore, to construe a defendant’s failure to challenge an expert affidavit
under § 12-2603 as categorically waiving the opportunity to challenge an
expert’s qualifications under § 12-2604.

¶24 Although § 12-2604 was plainly intended to define the expert
qualifications that must be evidenced by the affidavit in § 12-2603, it also
was intended to establish minimum qualifications for trial as well. Reading
§§ 12-2603, -2604, and -563 together indicates that the first provision
establishes a threshold procedural requirement, and the second establishes
overall prerequisite qualifications, to satisfy the necessary elements of proof
required by the third provision. By contrast, allowing the § 12-2603(F)
automatic substitution-of-expert provision to carry beyond the preliminary
and discovery phases would protract the litigation, thus defeating the
overall purposes of § 12-2603.

¶25 Confining § 12-2603(F)’s “cure” provision to preliminary
expert affidavits does not necessarily deprive a plaintiff of the opportunity
to produce a substitute expert. When a defendant moves for summary
judgment based on a plaintiff’s failure to produce an expert meeting the
§ 12-2604 qualifications, the plaintiff may file a Rule 56(d) affidavit and
corresponding motion for relief. See St. George, 241 Ariz. at 168 ¶ 30. Rule
56(d) applies when a party opposing summary judgment “cannot present
evidence essential to justify its opposition.” The opposing party may

8
 RASOR/MILLER V. NORTHWEST HOSPITAL, LLC
Opinion of the Court

request relief and an expedited hearing based on an affidavit “establishing
specific and adequate grounds” and addressing, inter alia, the evidence
beyond the party’s control, what the party expects it to reveal, and an
estimate of the time needed to obtain it. Ariz. R. Civ. P. 56(d)(1). After
holding a hearing, the judge may defer considering the summary judgment
motion and allow time to obtain the evidence, deny the requested relief, or
issue any other appropriate order. Ariz. R. Civ. P. 56(d)(5). The court may
consider both the good faith or lack thereof of the plaintiff in proposing the
initial expert whose qualifications are questioned on summary judgment,
as well as the defendant’s waiting to challenge the proposed expert until
this later stage of litigation rather than under § 12-2603 if the qualifications
were plainly inadequate in the affidavit. This process provides fairness to
plaintiffs while serving the statutes’ purposes of ensuring efficient litigation
of potentially meritorious claims.

¶26 We therefore reverse the court of appeals’ holding that the
provisions of § 12-2603(F) apply to a motion for summary judgment and
automatically entitle plaintiff to an opportunity to substitute a new expert.
Rasor, 239 Ariz. at 552–53 ¶¶ 17–19, 557 ¶ 38. To the extent Preston and
Sanchez contain similar holdings, we disapprove of them as well.

B. Nurse Ho’s expert qualifications

¶27 Although the trial court did not specify its grounds for
granting summary judgment, the court of appeals ruled as a matter of law
that Ho was unqualified to provide expert standard-of-care testimony. Id.
at 550–52 ¶¶ 9–15. We agree. As this Court held in Baker, an expert must
establish the same specialization as the health care provider under
§ 12-2604(A) “when the care or treatment at issue was within that
specialty.” 231 Ariz. at 384 ¶ 14. Thus, the trial court must initially
determine whether the care or treatment involved a specialty or
subspecialty. Id. at 386 ¶ 27. If it did, the testifying expert must share the
same specialty. Id. If the health care provider is board certified, the expert
must also be certified in that specialty. Id. Here, the trial court did not
identify whether the treatment at issue involved a specialty.

¶28 The parties disagree over the extent of specialized expertise
exercised by NWMC’s ICU nurses who allegedly caused Rasor’s injuries.
NWMC argues, and Ho agreed in her deposition, that ICU nurses fall under

9
 RASOR/MILLER V. NORTHWEST HOSPITAL, LLC
Opinion of the Court

their own specialty. Rasor contends they are not specialists because they
have no additional education or certificate beyond their licenses as
registered nurses. The court of appeals noted that ICU nurses can obtain
critical care certification, Rasor, 239 Ariz. at 551 ¶ 12 n.6, but found it
unnecessary to resolve whether the care provided involved a medical
specialization or whether Ho possessed that same specialization under
§ 12-2604(A)(1) “because Ho does not meet the criteria of § 12-2604(A)(2) or
(3).” Id. at 551 ¶ 12.

¶29 We agree that Ho did not qualify as a standard-of-care expert
regardless of whether the care at issue involved one specialty as opposed
to another, or instead general practice. In addition to the symmetrical
specialty requirements of § 12-2604(A)(1), the proposed expert must have
spent “a majority of . . . professional time” in the year preceding the injury
either in (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”; or (b) “[i]f the defendant is a general
practitioner . . . in [a]ctive clinical practice as a general practitioner.”
§ 12-2604(A)(2)(a), -2604(A)(3)(a); see also § 12-2604(A)(2)(b), -2604(A)(3)(b)
(allowing expert qualification for a person providing comparable
instruction of students).

¶30 Ho is a wound-care specialist. Apart from the requirements
of § 12-2604(A)(1), and whether the care involved a medical specialty or was
provided by a general practitioner, an expert must have devoted a majority
of his or her professional time in the year preceding the injury to some
combination of clinical treatment or student instruction. Ho does not meet
these requirements, because, as she testified in her deposition, in the year
preceding Ms. Rasor’s surgery, she worked at a long-term acute care facility
as a wound care coordinator while “pick[ing] up extra shifts as a house
supervisor or in the ICU” and did not work as an ICU nurse.

C. Disposition

¶31 Ordinarily, in the absence of proceeding under Rule 56(d), a
plaintiff’s failure to provide a qualified standard-of-care expert would
justify summary judgment for the defense. See, e.g., Seisinger, 220 Ariz. at
94 ¶ 33. However, two factors here weigh against it. First, as we have
noted, judicial opinions construing the relationship between §§ 12-2603 and

10
 RASOR/MILLER V. NORTHWEST HOSPITAL, LLC
Opinion of the Court

-2604 were conflicting, making justifiable the court of appeals’ remand to
the trial court to allow plaintiff to find a different expert, a request plaintiff
made of the trial court at least twice. Second, the trial court repeatedly
indicated that it would allow Rasor to use Ho as a standard-of-care witness
(“You can take that to the bank, okay?”). Because the trial court did not
explain the basis for granting summary judgment in favor of NWMC, we
cannot know whether the court changed its mind and found that Ho could
not serve as a standard-of-care witness.

¶32 However, the trial court also repeatedly expressed doubts as
to whether Ho was qualified to provide expert testimony on causation.
Proof is required on both issues. A.R.S. § 12-563; see also Baker, 231 Ariz. at
384 ¶ 12. Because it concluded that Ho was not qualified as a standard-of -
care expert, the court of appeals did not decide (1) whether Ho was
qualified as a causation expert; (2) whether, as Rasor argued, expert
causation testimony is legally unnecessary as causation would be readily
apparent to the jury on the facts; or (3) whether Ho was qualified as an
expert under Arizona Rule of Evidence 702 (expert must be qualified by
“knowledge, skill, experience, training, or education”). These issues are not
before us. Because it would not matter whether Ho is qualified as a
standard-of-care expert if expert causation evidence is needed and Ho is
unqualified as a matter of law to provide it, we remand the case to the court
of appeals to address these issues in the first instance.

¶33 If the court of appeals determines that expert testimony on
causation is required and Ho is not qualified to provide it, it should affirm
the trial court’s grant of summary judgment to NWMC. If it decides
otherwise, it should remand to the trial court to provide Rasor an
opportunity to file a Rule 56(d) motion and for any other appropriate
proceedings.

III. CONCLUSION

¶34 We vacate paragraphs 17–19 and 38 of the court of appeals’
opinion and remand the case to that court for further proceedings
consistent with this opinion.

11