Curtis v. Banner

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

LISA CURTIS, Plaintiff/Appellant,

v.

BANNER HEALTH, et al., Defendants/Appellees.

No. 1 CA-CV 19-0621
FILED 10-20-2020

Appeal from the Superior Court in Maricopa County
No. CV2017-055564
The Honorable Cynthia J. Bailey, Judge (Retired)

AFFIRMED

COUNSEL

Sternfels & White, PLLC, Fountain Hills
By Christopher J. Enos
Counsel for Plaintiff/Appellant

Jennings, Strouss & Salmon, P.L.C., Phoenix
By John J. Egbert, Jay A. Fradkin
Counsel for Defendants/Appellees Banner Health
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Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.

W I L L I A M S, Judge:

¶1 Lisa Curtis (“Curtis”) appeals the superior court’s denial of
her Rule 56(d) motion and grant of summary judgment for Banner Health
(“Banner”) on her claims of medical negligence. For the following reasons,
we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 On September 15, 2015, Curtis went to the emergency room at
Banner Gateway Medical Center (the “hospital”) seeking treatment for
nausea, vomiting, diarrhea and body aches. Dr. Olin Vance examined
Curtis and, among other things, ordered two blood cultures to determine if
Curtis had a bacterial infection in her blood. The results of the blood
cultures were still unknown when Dr. Vance discharged Curtis from the
hospital that same day. Dr. Vance instructed Curtis to follow up with her
primary care physician within three to four days, and to return to the
hospital for any new or worsening symptoms.

¶3 Just hours after her discharge, the initial results of Curtis’
blood cultures showed gram positive cocci. The lab informed the hospital’s
emergency room charge nurse of the results, but Curtis was not informed.
As relevant here, Banner’s hospital policy requires, in part, that staff notify
the treating physician of a patient’s critical results (Curtis’ blood culture test
results) “as soon as possible,” and consider relaying results up the chain of
command if the treating physician cannot be contacted “within 60 minutes
of [staff] receiving the [results].”

¶4 Two days later, on September 17, the lab results confirmed
staphylococcus aureus (a staph infection) and Dr. Casey Crandall, a
physician on duty, recommended that hospital staff inform Curtis and
advise her to return to the hospital if symptoms had not improved. Staff did
not notify Curtis. Yet, Curtis returned to the hospital on her own and was
admitted because of worsening conditions and severe sepsis.

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¶5 Curtis brought two claims of medical negligence against
Banner in September 2017, alleging, in part, that Banner staff “fail[ed] to
properly notify [her] of the results of the blood test” which proximately
caused her injuries. Curtis certified that expert testimony was needed to
establish her claims and timely disclosed two physician expert witnesses but
did not timely disclose a nurse expert witness. After the deadline for
disclosing expert witnesses had passed, Banner filed a motion for summary
judgment arguing that, without a qualified nurse expert witness, Curtis
could not establish the nursing staff’s conduct fell below the requisite
standard of care. Curtis filed a motion under Rule 56(d) of the Arizona
Rules of Civil Procedure, requesting authorization to depose “Dr. Vance as
well as two nurses” before responding to Banner’s motion, which the court
denied.

¶6 The superior court granted summary judgment for Banner.
Curtis timely appealed. We have jurisdiction pursuant to Article 6, Section
9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

I. Rule 56(d) Motion for Relief

¶7 Rule 56(d) affords a party, who “cannot present evidence
essential to justify its opposition” to summary judgment, to request, among
other things, the opportunity “to obtain affidavits or to take discovery”
before responding to a motion for summary judgment. Ariz. R. Civ. P.
56(d)(1) and (5)(A). We review the superior court’s denial of a Rule 56(d)
motion for an abuse of discretion. St. George v. Plimpton, 241 Ariz. 163, 165,
¶ 11 (App. 2016).

¶8 Banner’s motion for summary judgment raised the narrow
issue of Curtis’ failure to name an expert qualified to testify to nursing
standard of care, including the nursing care provided by hospital staff.
Although Curtis disclosed two expert witnesses, Dr. Lynette Zills, a board
certified urgent care physician, and Dr. Thomas Anthony Cumbo, a board
certified internal medicine physician, Curtis failed to timely disclose an
expert witness who could testify to the nursing standard of care. See A.R.S.
§ 12-2604(A); see also Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 384,
¶ 14 (2013) (the testifying expert must specialize in the same specialty or
claimed specialty as the treating medical professional).

¶9 Curtis contends the superior court’s denial of her Rule 56(d)
motion constituted an abuse of discretion because it placed an undue
burden on Curtis to sift through Banner’s disclosure, provided just two

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months before the summary judgment motion, in order to determine which
type of expert witnesses were needed. But Curtis concedes she knew before
the expert witness disclosure deadline that the conduct of hospital nurses
was central to her medical negligence claim.

¶10 The superior court denied Curtis’ Rule 56(d) request because:
(1) “report[s] and other discovery regarding the necessity of a nursing
standard of care expert were timely disclosed in August 2018, almost 60
days prior to the deadline for expert disclosure reports”; (2) Curtis
“concede[s] in the Rule 56[d] motion that she knew in August, 2018, that a
nurse received the blood testing results”; (3) Curtis “failed to prove that
[Banner] possessed any undisclosed evidence that could provide any
insight into the narrow issue raised in the [m]otion for [s]ummary
[j]udgment”; and (4) “the [c]ourt was not persuaded . . . that the name of
the specific nurse or nurses involved in the transmission of [Curtis’] blood
test results was necessary prior to disclosure of an expert opinion report.”

¶11 The court did not abuse its discretion in denying Curtis’
request for more discovery because that discovery did not influence the
narrow issue presented in Banner’s summary judgment motion. Ader v.
Estate of Felger, 240 Ariz. 32, 36, ¶ 7 (App. 2016). And, Curtis knew nearly
two months before the expert witness disclosure deadline that she needed
to establish the requisite nursing standard of care.

II. Motion for Summary Judgment

¶12 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). On appeal, we review a grant of
summary judgment de novo, Dreamland Villa Cmty. Club, Inc. v. Rainey, 224
Ariz. 42, 46, ¶ 16 (App. 2010),“view[ing] the facts and reasonable inferences
in the light most favorable to the non-prevailing party,” Rasor v. Nw. Hosp.,
LLC, 243 Ariz. 160, 163, ¶ 11 (2017).

¶13 In a medical negligence action, a plaintiff must prove both:
(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 Ryan v. S.F. Peaks Trucking Co., Inc., 228
Ariz. 42, 48–49, ¶ 23 (App. 2011).

¶14 Typically, the standard of care “must be established by expert
medical testimony.” Id. at 49, ¶ 23; Seisinger v. Siebel, 220 Ariz. 85, 94, ¶ 33

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(2009); see also Phillips v. Stillwell, 55 Ariz. 147, 149 (1940). The testifying
expert must “specialize ‘in the same specialty or claimed specialty’ as the
treating [medical professional].” Baker v. Univ. Physicians Healthcare, 231
Ariz. 379, 384, ¶ 14 (2013) (quoting A.R.S. § 12-2604(A)); see also Rasor, 243
Ariz. at 165–66, ¶ 27. “Similarly, unless a causal relationship is readily
apparent to the trier of fact, expert medical testimony is normally required
to establish proximate cause.” Ryan, 228 Ariz. at 49, ¶ 23; see also Salica v.
Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 419, ¶ 16 (App. 2010).
As an exception to the general rule requiring expert testimony, the standard
of care need not be established by expert medical testimony if the
negligence is “so grossly apparent that a layman would have no difficulty
in recognizing it.” Riedisser v. Nelson, 111 Ariz. 542, 544 (1975).

¶15 In Potter v. H. Kern Wisner, M.D., P.C., 170 Ariz. 331, 335 (App.
1991), this court indicated there appears to be “a split in authority in
Arizona” whether “evidence of a practice by an individual doctor or a
limited group of health care professionals is []sufficient to establish the
necessary standard of care.” For example, in Bell v. Maricopa Med. Center,
157 Ariz. 192, 195 (App. 1988), this court reasoned that a jury could not
conclude “that [a] hospital’s violation of its [own] protocols constituted
evidence of negligence unless it first found that the protocols were not
merely evidence of the applicable standard, but were synonymous with it.”
But in Peacock v. Samaritan Health Serv., 159 Ariz. 123, 127 (App. 1988),
decided just two months after Bell, this court held that, although “a policy
adopted by a health care provider will [not] always equate with the
standard of care to be applied by the jury in determining if the care and
supervision of a patient were negligent . . . the existence of a hospital
protocol is nevertheless some evidence of the standard of care.” (Emphasis
added.) Further, when a hospital protocol exists, “[a jury] could conclude
that the protocol [is] the standard of care and that the failure to follow that
standard was negligence.” Id. Whether Bell and Peacock actually conflict
with one another, however, is not clear to us.

¶16 In granting summary judgment for Banner, the superior court
concluded that “the issues involved with the duty of care for nursing staff
in documenting and disseminating blood culture reports is not analogous
to the standard of care at issue in Peacock.” We agree. In Peacock, the plaintiff
was suffering from a “manic episode” and admitted into a hospital’s mental
health unit where he needed to “be observed, monitored and watched for
worsening of [] symptoms or evidence of a delirium.” Id. at 124. Once
admitted, the plaintiff “either jumped or fell through the fourth floor
window of his room and suffered severe physical injuries.” Id. at 125. The
hospital had a protocol in place requiring that “the window in [plaintiff’s]

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room . . . be secured by a lock mechanism.” Id. at 127. It was not. Id. This
court reasoned that evidence of the “[hospital’s] own protocol together with
reasonable inferences that can be drawn from the act of placing a reportedly
suicidal patient in a fourth floor room with an unsecured window” could
be enough for a jury to conclude that the protocol was the standard of care.
Id. (Emphasis added.)

¶17 Here, however, “reasonable inferences” as to the time in
which blood culture results ought to be relayed to an attending physician,
or the patient herself, are not commonly known, but instead require
medical training and knowledge. Consequently, because a jury could not
conclude, absent expert testimony, that Banner’s own protocol is
synonymous with the standard of care, the superior court appropriately
granted summary judgment for Banner.

CONCLUSION

¶18 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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