Antoinette Windhurst v. Adoc

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

ANTOINETTE WINDHURST, A SINGLE/WIDOWED WOMAN, ON BEHALF OF
HERSELF, AND AS A PERSONAL REPRESENTATIVE OF THE ESTATE OF HER
DECEASED HUSBAND, D AVID WINDHURST,
Plaintiff/Appellant,

v.

ARIZONA D EPARTMENT OF CORRECTIONS, A GOVERNMENTAL ENTITY; RYAN
THORNELL, IN HIS INDIVIDUAL CAPACITY AS THE D IRECTOR
OF ARIZONA D EPARTMENT OF CORRECTIONS; STATE OF ARIZONA, A
GOVERNMENTAL ENTITY; CORIZON H EALTH, INC., A BUSINESS
DOMICILED IN ARIZONA,
Defendants/Appellees.

No. CV-21-0288-PR
Filed October 11, 2023

Appeal from the Superior Court in Pima County
The Honorable Brenden J. Griffin, Judge
No. C20175978
REVERSED AND REMANDED

Opinion of the Court of Appeals, Division Two
252 Ariz. 240 (2021)
VACATED

COUNSEL:

Rita J. Bustos (argued), Anthony J. Fernandez, Dustin A. Christner, Alyssa
R. Illsley, Quintairos, Prieto, Wood & Boyer, P.A., Scottsdale, Attorneys for
Corizon Health, Inc., Arizona Department of Corrections, Ryan Thornell,
and the State of Arizona
 ANTOINETTE WINDHURST V. ADOC, ET AL.
Opinion of the Court

Nathan S. Rothschild, Bernardo M. Velasco (argued), Mesch Clark
Rothschild, Tucson; and Michael J. Crawford, Crawford Law, PLLC,
Tucson, Attorneys for Antoinette Windhurst

Eileen Dennis GilBride, Jones, Skelton & Hochuli P.L.C., Phoenix, Attorney
for Amici Curiae Banner Health, Dignity Health, HonorHealth, Mutual
Insurance Company of Arizona, and Phoenix Children’s Hospital

David L. Abney, Ahwatukee Legal Office, P.C., Phoenix; and Daniel
Rubinov, RAJ Law PLLC, Phoenix, Attorneys for Amicus Curiae Arizona
Association for Justice/Arizona Trial Lawyers Association

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
BOLICK, and LOPEZ joined. *

JUSTICE BEENE, Opinion of the Court:
¶1 A plaintiff who brings a medical malpractice action must
prove that a medical institution or individual provider fell below the
applicable standard of care. See A.R.S. §§ 12-563, -561(1)(a); Seisinger v.
Siebel, 220 Ariz. 85, 94 ¶ 32 (2009). Expert medical testimony is necessary to
establish the applicable standard of care, and experts testifying to the
standard must satisfy the requirements of Arizona Rule of Evidence 702
and A.R.S. § 12-2604. Seisinger, 220 Ariz. at 94–95 ¶¶ 33, 39–40.

¶2 In this case, we apply these legal principles to the following
issues: (1) whether § 12-2604 applies to medical institutions, and under
what circumstances; (2) whether the court of appeals erred in concluding
that the jury could infer causation; and (3) whether a registered nurse may
testify regarding the cause of death in a medical malpractice case. For the

∗
Justices William G. Montgomery and Kathryn H. King recused themselves
from this matter.

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reasons set forth in this opinion, we hold that § 12-2604’s requirements do
not apply to claims against medical institutions not based on vicarious
liability; Windhurst presented appropriate expert causation testimony and,
therefore, the jury did not have to infer causation; and a registered nurse
may testify about the cause of death in a medical malpractice case if
Rule 702’s requirements are met.

BACKGROUND

¶3 In December 2015, David Windhurst (“David”) was
incarcerated at the Arizona State Prison in Florence. David was paraplegic
and had various chronic medical issues, including diabetes mellitus,
hypertension, obesity, kidney disease, and injuries to his back and buttocks.
Because of his medical conditions, David was placed in the prison’s
infirmary, where Arizona Department of Corrections (“ADOC”) provided
his health care through its contractor Corizon Healthcare Inc. (“Corizon”).
When Corizon began caring for David, his medical conditions were stable.

¶4 In February 2016, David went into septic shock and was
transferred to a hospital where he remained for over a month. After his
release from the hospital, David was taken to a state prison in Tucson where
he was housed in the infirmary under Corizon’s care. In November 2016,
David was admitted again to the hospital in septic shock, and on December
25, he died due to infectious complications of diabetes mellitus.

¶5 David’s widow, Antoinette Windhurst (“Windhurst”) filed a
wrongful death action against Corizon, ADOC and its director, and the
State of Arizona, claiming, among other things, medical malpractice.
Windhurst alleged both institutional negligence by Corizon and vicarious
liability based on the negligence of its medical personnel. In support of her
claims, Windhurst provided David’s medical records, as well as deposition
testimony and reports from three expert witnesses: Zachary Rosner, a
medical doctor; Tara Hood, a nurse practitioner; and Denise Panosky, a
registered nurse. At the time, Dr. Rosner was the chief of medical services
for the New York City jail system; Hood had worked for over ten years as
a nurse practitioner in a correctional facility; and Panosky had over fourteen

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years of experience as a professor, teaching students about nursing in a
correctional facility setting.

¶6 Corizon moved for summary judgment, arguing that there
was no evidence that it violated the standard of care or caused David’s
death. Specifically, Corizon asserted that Windhurst failed to provide
standard-of-care opinions regarding specific providers. It also claimed that
Dr. Rosner only alleged that “clinicians” fell below the standard of care and
did not specify which particular clinician fell below the standard of care or
how such clinician’s care caused David’s death. Corizon also argued that,
as a nurse, Panosky was not qualified to establish causation based on her
professional position.

¶7 The trial court granted Corizon’s motion on the medical
negligence claim because it did not “see the medical expert testimony that
links everything up.” The court invited Windhurst to file a motion for
reconsideration that “tied together . . . either a specific doctor or doctors, a
specific nurse or nurses; what standard of care applied and that that
particular provider or category of providers breached; how they breached
it; [and] what corresponding expert says that.”

¶8 Windhurst filed a motion for reconsideration. In her motion,
Windhurst pointed to evidence that Corizon failed to treat David’s wounds
and properly care for his catheter, failed to follow specialist
recommendations, and failed to diagnose and treat David’s sepsis. She also
cited testimony from the record where Dr. Rosner, Hood, and Panosky gave
causation testimony. The trial court denied the motion, however, finding
that Windhurst still did not “connect the dots.” Windhurst appealed.

¶9 The court of appeals vacated the trial court’s grant of
summary judgment on the medical negligence claim. Windhurst v. Ariz.
Dep’t of Corrs., 252 Ariz. 240, 249 ¶ 40 (App. 2021). After reviewing the
expert opinions of Dr. Rosner, Hood, and Panosky, the court concluded that
these witnesses gave sufficient testimony about the institutional and
individual standards of care for Corizon and its personnel, respectively. Id.
at 245 ¶ 19, 246 ¶¶ 23–27. Additionally, the court of appeals held that
Windhurst’s experts gave sufficient causation testimony. Id. at 246 ¶ 27, 247
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¶ 30, 249 ¶ 37. Finally, relying on Rasor v. Northwest Hospital LLC (Rasor I),
244 Ariz. 423 (App. 2018), the court concluded that Panosky met the expert
qualification standards of Rule 702 and could testify regarding the cause of
death. Windhurst, 252 Ariz. at 248–49 ¶ 36.

¶10 We granted review because this case presents recurring issues
of statewide concern. We have jurisdiction under article 6, section 5(3) of
the Arizona Constitution.

DISCUSSION
¶11 We review the entry of summary judgment de novo, viewing
the facts in the light most favorable to Windhurst as the nonmoving party.
See S. Point Energy Ctr. LLC v. Ariz. Dep’t of Revenue, 253 Ariz. 30, 33 ¶ 10
(2022). Similarly, we review questions of statutory interpretation de novo.
State v. Ariz. Bd. of Regents, 253 Ariz. 6, 12 ¶ 22 (2022).

I.

¶12 Windhurst’s wrongful death action alleged both institutional
negligence by Corizon and vicarious liability based on the negligence of
Corizon’s medical personnel. 1 Here, we must determine whether
§ 12-2604’s standard of care requirements for an expert witness in a medical
malpractice case apply to an institutional liability claim. Answering this
question requires us to interpret § 12-2604.

¶13 “Our task in statutory construction is to effectuate the text if
it is clear and unambiguous.” BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244
Ariz. 17, 19 ¶ 9 (2018). “In doing so, we interpret statutory language in view
of the entire text, considering the context and related statutes on the same

1 Corizon insists that Windhurst failed to specifically plead institutional
negligence. Though Windhurst did not use the exact phrase “institutional
negligence” in her complaint, she alleges that Corizon breached the
applicable standard of care by failing to adhere to state law, as well as its
own policies and procedures. This allegation satisfies Arizona’s pleading
standards by indicating the type of litigation involved and putting Corizon
on notice. See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 6 (2008).
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subject,” Molera v. Hobbs, 250 Ariz. 13, 24 ¶ 34 (2020) (cleaned up) (quoting
Ariz. Chapter of the Associated Gen. Contractors of Am. v. City of Phoenix., 247
Ariz. 45, 47 ¶ 7 (2019)), giving the words “their ordinary meaning unless it
appears from the context or otherwise that a different meaning is intended.”
State ex rel. Brnovich v. Maricopa Cnty. Cmty. Coll. Dist. Bd., 243 Ariz. 539, 541
¶ 7 (2018) (citation omitted).

¶14 In all negligence actions, including medical malpractice, “the
plaintiff must prove the existence of a duty, a breach of that duty, causation,
and damages.” Seisinger, 220 Ariz. at 94 ¶ 32. For medical malpractice
specifically, a plaintiff must prove 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
v. Univ. Physicians Healthcare, 231 Ariz. 379, 384 ¶ 12 (2013) (“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.” Rasor v. Nw. Hosp., LLC (Rasor
II), 243 Ariz. 160, 163 ¶ 12 (2017).

¶15 Section 12-2604(A) provides additional expert witness
qualifications that are required to testify in a medical malpractice action:

A. In an action alleging medical malpractice, a person shall
not give expert testimony on the appropriate standard of
practice or care unless the person is licensed as a health
professional in this state or another state and the person meets
the following criteria:
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
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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 either or both of 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.
(b) The instruction of students in an accredited health
professional school or accredited residency or clinical
research program in the same health profession as the
defendant and, if the defendant is or claims to be a specialist,
in an accredited health professional school or accredited
residency or clinical research program 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
either or both of the following:
(a) Active clinical practice as a general practitioner.
(b) Instruction of students in an accredited health
professional school or accredited residency or clinical
research program in the same health profession as the
defendant.

¶16 Under subsection (A), the qualifications of a standard of care
witness are dependent on what “health profession” the defendant practices
and whether the defendant is a “specialist” or “general practitioner.”
§ 12-2604(A)(1)–(3). Because the defendant in this case, Corizon, is not
engaged in a “health profession” and is neither a “specialist” nor “general
practitioner,” § 12-2604 does not apply. Though these terms are not defined
in Title 12, their use in § 12-2604 and their definitions in related statutes
support this conclusion.
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¶17 Section 32-3201 defines “[h]ealth professional” as “a person
who is certified or licensed” to work as a member of certain professions
listed in Titles 32 and 36. 2 A.R.S. § 32-3201(2) (emphasis added). Under this
statute, doctors, nurse practitioners, and nurses are included as health
professionals. Though statutory references to “persons” generally include
both legal entities and natural persons, see A.R.S. § 1-215(29), § 32-3201(2)
only refers to natural persons and we decline to apply a statute governing
individual licenses to a legal entity. See generally Fleming v. State Dep’t of
Pub. Safety, 237 Ariz. 414, 417 ¶ 12 (2015) (refusing to apply a meaning that
“leads to impossible or absurd results”) (quoting Orca Commc’ns Unlimited,
LLC v. Noder, 236 Ariz. 180, 182 ¶ 9 (2014)).

¶18 Section 12-2604 also distinguishes between “health
professional[s]” and institutional entities. Section 12-2604(B) expressly
applies to “health care institution[s].” It reads, in relevant part: “If the
defendant is a health care institution that employs a health professional
against whom or on whose behalf the testimony is offered, the provisions
of subsection A apply as if the health professional were the party or
defendant.” § 12-2604(B). This section applies when an institution is a
defendant in a negligence action based on the actions of a health
professional it employs. If an institution could be a “health professional,”
§ 12-2604(B) would be superfluous. It therefore follows that, under
§ 12-2604, “health professional[s]” must be individuals, as opposed to
institutions. See generally Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2018)
(disapproving of an interpretation that renders a provision superfluous).

¶19 Similarly, “[s]pecialist” is defined as an individual. See A.R.S.
§ 32-1800(21) (defining specialist as a physician who has completed
additional training or is certified by a specialty board). Although “general
practitioner” is not defined in Title 32 or 36, absent statutory definitions,
courts generally give words their ordinary meaning and may look to
dictionary definitions. Chaparro v. Shinn, 248 Ariz. 138, 141 ¶ 14 (2020). The
Oxford Advanced Learner’s Dictionary defines “general practitioner” as “a
doctor who is trained in general medicine and who treats patients in a local

2 Section 32-3201(2) references certain articles in Title 36, but those articles
are not related to health care institutions like Corizon.
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community rather than at a hospital.” General Practitioner, Oxford
Advanced Learner’s Dictionary, https://www.oxfordlearnersdictionaries.
com/us/definition/english/general-practitioner?q=general+practitioner
(last visited Sept. 13, 2023). The Merriam-Webster Dictionary defines
“general practitioner” as “a physician or veterinarian whose practice is not
limited to a specialty.” General Practitioner, Merriam-Webster,
https://www.merriam-webster.com/dictionary/general%20practitioner
(last visited Sept. 13, 2023). Both definitions refer to a general practitioner
as an individual person, rather than a group or a collective. Thus, it follows
that, like the terms “health professional” and “specialist,” the term “general
practitioner” is defined as an individual engaged in the practice of medicine.

¶20 After considering § 12-2604(A)(1)–(3), its context, and related
statutes on the subject, we conclude that an institution cannot be a licensed
health professional because an institution cannot be a natural person. See
§ 32-3201(2). And thus, in a suit against a medical institution, it would be
impossible for a plaintiff to produce an expert in the “same health
profession as the defendant.” See § 12-2604(A). Similarly, it would be
impossible for a plaintiff to present an expert under § 12-2604(A)’s
requirements because an institution, by definition, cannot be a “specialist”
or “general practitioner.” Accordingly, § 12-2604(A) is inapplicable to
claims based on a theory of institutional liability.

¶21 In this case, Windhurst alleged claims against Corizon for
institutional negligence and vicarious liability for the negligent conduct of
its employees. See Kopp v. Physician Grp. of Ariz., Inc., 244 Ariz. 439, 441–42
¶¶ 9–12 (2018) (explaining that institutional claims can be proven either by
showing an independent duty to the patient or through vicarious liability
of the institution’s employees). As this Court has previously stated, a health
care institution has a standard of care independent from the medical
professionals it employs. See Thompson v. Sun City Cmty. Hosp., Inc., 141
Ariz. 597, 604 (1984) (noting that hospitals and physicians have distinct
standards of care). Because § 12-2604(A) is not applicable to a claim for
institutional negligence, an expert on this issue need only satisfy Rule 702,
which requires that the witness have “specialized knowledge [that] will
help the trier of fact to understand the evidence or to determine a fact in
issue.” Ariz. R. Evid. 702.
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¶22 We conclude that the trial court erred in granting partial
summary judgment based on its inability to compare the qualifications of
the Corizon employees that provided medical care with the qualifications
of Windhurst’s corresponding experts. Windhurst provided proper expert
standard-of-care testimony for each class of medical provider and these
experts presented appropriate testimony regarding how Corizon’s medical
providers’ actions, or inactions, contributed to David’s injuries. See Part
II(B)–(D) ¶¶ 34–45. Testimony of these failures supported Windhurst’s
institutional negligence claim.

¶23 Windhurst also provided competent expert evidence
regarding the standard of care that applied to Corizon as an institution.
Regarding this claim, Dr. Rosner’s general reference to clinicians provided
the requisite specificity to establish that Corizon had fallen below its
standard of care by failing to remove obstacles to the clinicians’ ability to
perform their work. See Part II(A) ¶¶ 28–33. Moreover, evidence that an
entire class of providers failed to exercise appropriate care suggests an
institutional failure. Therefore, we conclude that, when it is unclear which
provider breached the standard of care, an expert on institutional standards
of care may address an alleged breach by establishing that a class of
providers failed to exercise appropriate care.

II.

¶24 Next, we address whether the court of appeals erred in
concluding that the jury could infer causation in contravention of Sampson
v. Surgery Center of Peoria, LLC, 251 Ariz. 308 (2021).

¶25 Causation is a legal requirement for any medical malpractice
claim. See Evans v. Bernhard, 23 Ariz. App. 413, 415 (1975). “Causation is
generally a question of fact for the jury unless reasonable persons could not
conclude that a plaintiff had proved this element.” Barrett v. Harris, 207
Ariz. 374, 378 ¶ 12 (App. 2004). It requires the plaintiff to show “a natural
and continuous sequence of events stemming from the defendant’s act or
omission, unbroken by any efficient intervening cause, that produce[d] an
injury, in whole or in part, and without which the injury would not have
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occurred.” Sampson, 251 Ariz. at 311 ¶ 15 (quoting Barrett, 207 Ariz. at 378
¶ 11). Furthermore, the injury must be “probable, not merely speculative.”
Id.

¶26 In most medical malpractice cases, a plaintiff must establish
causation using expert testimony. Id. ¶ 13. The narrow exception is when
the malpractice is so “readily apparent” that a jury can infer causation. Id.
(quoting Rasor II, 243 Ariz. at 166 ¶ 32). When the standard of care or cause
of death is disputed on a matter requiring medical knowledge, causation
by inference should be limited to those situations where causation is
“grossly apparent.” Id. at 312 ¶ 19 (quoting Rasor II, 243 Ariz. at 163 ¶ 12).

¶27 Here, Corizon argues that because the cause of death is
disputed and not readily apparent, expert causation testimony is required
to explain how the alleged breaches by the institution and its employees
caused or contributed to David’s death.

A. Medical Institution

¶28 As previously indicated, Windhurst alleged institutional
negligence by Corizon and vicarious liability based on the negligence of its
personnel. In support of this claim, Dr. Rosner stated in his report that it
was appropriate to apply the standards of care set by the Centers for
Medicine and Medicaid Services (“CMS”) for long-term care facilities to a
prison infirmary. Dr. Rosner cited the CMS standard of care for the
availability of emergency services which states that a “facility must provide
or arrange for the provision of physician services 24 hours a day, in case of
an emergency.” 42 C.F.R. § 483.30(d). Rosner stated that this standard was
“clearly not met” because David became “gravely ill” and “nurses
concerned for his well-being were unable to promptly contact a higher level
of Clinician for management decisions” and “[w]hen the physician was
finally contacted there was not prompt in person evaluation that resulted.”
Dr. Rosner further stated:

When a system is structured in such a way that an infirmary
setting does not have a physician working in an infirmary
setting around the clock it must have accessible physician
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oversite [sic] and be prepared to rapidly escalate care for
unstable patients. When the on-call physician is both unable
to come in to evaluate a decompensating patient while also
not willing to remotely advise transfer to an emergency room
where physician services are available around the clock, that
system cannot be said to have provided or “arrange[d]” for
the provision of physician services 24 hours a day.

¶29 Dr. Rosner provided additional expert causation testimony
regarding this claim when he expressed that “the prison was unable to
come close to approaching the standard of care that Mr. Windhurst
required” and that Corizon’s “inability to provide this level of care should
have been easily recognizable . . . and failure to acknowledge and act on
this led to Mr. Windhurst’s decompensation, development of severe
complications of an otherwise treatable infection, and ultimately his
premature death.” Dr. Rosner’s statements satisfied the requirement for
expert causation testimony because he testified that Corizon and its
employees breached the emergency-services-availability standard of care
and caused David’s death.

¶30 Dr. Rosner also discussed another institutional standard of
care he believed Corizon breached: proper maintenance of medical records.
In his report, Dr. Rosner stated that a “medical record is the commonly
accepted location for communicating clinical information from a variety of
sources.” He asserted that the standard of maintaining medical records is
to “directly populat[e] the medical record in a way which could be assessed
by multiple different care givers.” He added that “[s]uch direct population
of the medical record with lab results is standard for current electronic
health records and critical since easy access to review a patients [sic] past
lab results is a critical component of having a complete picture of the patient
being provided care.”

¶31 According to Dr. Rosner, however, Corizon breached this
standard by improperly maintaining medical records. In his report, Dr.
Rosner stated that “lab results were routinely reviewed on paper or via
email” by Corizon’s clinicians. But he also noted that a Corizon provider
“communicat[ed] only via word-of-mouth sign-out with nurses and not
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reviewing the chart for documentation of patient progress in some
instances, and in others not receiving lab results in the electronic record,”
and often, results or “concerning findings” would not reach higher level
clinicians. In discussing this breach, Dr. Rosner asserted that “[t]his
significant structural flaw was particularly contributory in this case”
because it delayed obtaining the results of a lab report “which . . . under
normal standards would have warranted a change in [care] management.”

¶32 Dr. Rosner also stated that Corizon’s clinicians “appear to
have been working in an environment and under obligations that
systematically limited their individual ability to provide a level of care that
Mr. Windhurst required.” This included “poor electronic and manual
tracking systems critical to providing adequate care to a patient with Mr.
Windhurst’s medical needs.” Thus, Dr. Rosner concluded that the “actions
and inactions” by Corizon providers represented a breach of the standard
of care that “more probably than not caused or contributed to David
Windhurst’s eventual death.”

¶33 Windhurst identified the standard of care regarding the
maintenance of medical records, discussed how the standard was breached,
and sufficiently specified how the breach caused David’s death.
Accordingly, Windhurst’s competent expert testimony would prevent the
jury from having to infer causation on the institutional negligence claim.

B. Nurse Practitioners

¶34 Next, we examine whether the jury would have to infer that
the alleged negligent conduct of Corizon’s nurse practitioners caused
David’s death.

¶35 Windhurst’s expert, Hood, stated that several nurse
practitioners who treated David breached multiple standards of care. One
standard cited by Hood required nurse practitioners to recognize the limits
of their “knowledge and experience by consulting with or referring patients
to other appropriate health care professionals if a situation or condition
occurs that is beyond the[ir] knowledge and experience . . . or if the referral

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will protect the health and welfare of the patient.” A.R.S.
§ 32-1601(23)(d)(vi).

¶36 In her report, Hood documented numerous breaches of this
standard. Regarding one such breach, Hood noted that in November 2016,
Castillo, a Corizon nurse practitioner, failed to realize David’s deteriorating
condition and subsequently did not raise any concerns to an attending
physician, despite a serious decline in David’s health. Hood also stated that
another Corizon nurse practitioner, Ross, breached the standard of care
regarding several aspects of David’s case including prescribing a
contraindicated medication for David, who suffered from chronic kidney
disease. Despite repeated encounters with David, Hood noted that Ross
prolonged David’s pain and suffering by failing to consult with a physician
or order testing regarding his skin condition. Hood then concluded that the
“actions and inactions by nurse practitioners . . . working with or for
Corizon Health, represent breaches of the applicable standards of care that
more probably than not caused or contributed to David Windhurst’s
death.”

¶37 Hood’s expert causation testimony corresponds with the
causation opinion reached by Dr. Rosner. After reviewing the health care
services provided by Corizon, Dr. Rosner opined that the “actions and
inactions by Clinicians . . . working with or for Corizon Health, represented
breaches of the applicable community standards of care that more probably
than not caused or contributed to David’s . . . eventual death.”

¶38 Windhurst’s experts identified the appropriate standards of
care for nurse practitioners, discussed how these standards were breached,
and specified how these breaches caused David’s death. Thus, the jury will
not have to infer causation.

C. Registered Nurses

¶39 Finally, we consider whether the jury would have to infer
causation regarding the alleged negligent conduct of Corizon’s registered
nurses.

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¶40 In her report, Windhurst’s nursing expert, Panosky, identified
several standards of care that were breached by Corizon’s nurses. One
standard requires nurses to “intervene on behalf of a client when problems
are identified.” Ariz. Admin. Code R4-19-402(C)(4)(e) (cleaned up).
Panosky listed numerous breaches of this standard. She stated that
Corizon’s nurses should have escalated care when David’s urine output fell
below a certain amount for two consecutive nights in November 2016. She
also noted that during this time, Hughes, a Corizon nurse, reported that
David had no appetite, consistently had critically low blood sugars, and
had gray-tinted skin. Despite this, Hughes did not notify a higher-level
provider for over forty-eight hours. Panosky noted that another breach of
this standard occurred on November 18, 2016, the day that David was
admitted to the hospital for a second time. Panosky stated that David was
in respiratory distress on this day and that the treating nurse could not
reach a higher-level provider for over nine hours. In her deposition,
Panosky testified that if a nurse could not reach a higher-level provider for
such an extended period and the patient is in respiratory distress, the nurse
should have called 911.

¶41 In addition, Panosky testified about breaches of a different
nature: following orders. Panosky stated that “it’s the nurse’s job to follow
the orders that were written” and to make sure that an order gets done “the
day it’s ordered.” She testified that, especially given David’s condition
before his November 18 hospitalization, the Corizon nurse Daemmer
breached this standard by waiting three days to complete one of David’s
lab tests. A provider ordered the test on November 11. Panosky opined
that, had Daemmer made sure the order was completed according to the
standard, the results would have led any reasonable provider to send David
to the hospital sooner, which would have increased his chance of survival.

¶42 Because Panosky provided competent expert opinion that
Corizon’s nurses collectively breached identified standards of care, and Dr.
Rosner opined that these breaches caused David’s death, see Part II(B) ¶ 37,
the jury will not be left to infer causation regarding this claim.

¶43 Contrary to Corizon’s claims, Windhurst presented sufficient
expert causation evidence to satisfy Sampson. A jury could reasonably rely
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on this expert evidence to determine the cause of David’s death without
making any impermissible inferences. Accordingly, when considering the
causation evidence in the light most favorable to Windhurst, we conclude
that the trial court erroneously granted summary judgment for Corizon.

D. Doctor Young

¶44 In partially granting Corizon’s summary judgment motion,
the trial court also overlooked crucial details in Dr. Rosner’s report and
deposition. Like the evidence establishing Corizon’s standard of care, see
Part I ¶¶ 20–23, the report and deposition allege that Dr. Young’s breach of
the relevant standard caused David’s death. The court based its ruling on
its assessment that Windhurst failed to “specifically identify Corizon’s
individual health-care-provider employees and agents,” and “explain [with
corresponding expert testimony] how those employees and agents fell
below the applicable standard of care . . . [and] how such failures were the
cause of injury.” It also noted that “most of [Windhurst’s] malpractice
allegations are against Corizon as an entity or as to its clinicians generally,
not against specified individual health-care providers.” The trial court
added that although Windhurst had “sprinkle[d] some allegations against
specific individuals, . . . those allegations are so intertwined with the
general allegations that it is unclear whether [Windhurst] has the requisite
corresponding expert to make a prima facie showing that those individuals
failed to meet the applicable standard of care, never mind that such a failure
was also a proximate cause of injury.”

¶45 The record in this case, however, belies the trial court’s
inability to “connect the dots” between Corizon’s individual health care
providers and corresponding expert testimony on the standard of care and
causation. For example, Dr. Rosner identified Dr. Murray Young, a Corizon
employee, concluding that Dr. Young breached the applicable standard of
care in treating David and that his breach contributed to David’s injuries.
Specifically, Dr. Rosner noted that Dr. Young overlooked uremia as a cause
of David’s itching and instead assumed that his skin condition resulted
from “self-mutilation.” This assumption, Dr. Rosner opined, was not
within the standard of care and caused David’s condition to worsen. The

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trial court therefore erred by granting partial summary judgment to
Corizon on the vicarious liability claim for Dr. Young’s breach.

III.

¶46 We conclude by turning to whether a registered nurse may
testify regarding the cause of death in a medical malpractice case.

¶47 While the standard of care must be proven by expert medical
testimony, Seisinger, 220 Ariz. at 94 ¶ 33, causation experts need only meet
the requirements of Rule 702. See Rasor I, 244 Ariz. at 428 ¶ 18. As
previously indicated, under Rule 702, “[f]or a witness to be qualified as an
expert, he or she need only possess ‘skill and knowledge superior to that of
[people] in general.’” State v. Romero, 239 Ariz. 6, 10 ¶ 17 (2016) (second
alteration in original) (quoting State v. Girdler, 138 Ariz. 482, 490 (1983)). If
a registered nurse possesses “specialized knowledge” that would “help the
[jury] to understand the evidence or to determine a fact in issue” such as
cause of death, then that individual may testify as an expert regarding that
issue. See Ariz. R. Evid. 702.

¶48 Here, Corizon argued to the trial court that Panosky testified
outside the scope of her practice and that she was not qualified to testify as
an expert under Rule 702. However, because the trial court did not decide
this issue, we decline to address the merits of this question on appeal. See
State v. Salazar-Mercado, 234 Ariz. 590, 594 ¶ 13 (2014) (noting that the trial
court determines whether Rule 702 is met, and appellate courts view that
determination for an abuse of discretion). On remand, the trial court shall
consider whether Panosky is qualified to testify as an expert regarding
causation under Rule 702.

¶49 Corizon also asserts that Panosky’s causation testimony is
duplicative and violates Arizona Rule of Civil Procedure 26(b)(4)(F)(i),
which allows each side in a case to presumptively call only one retained or
specially employed expert to testify on an issue. Although Corizon
concedes in its supplemental brief that this “was not an issue in the court of
appeals,” it nonetheless requests that we address this claim. Because the
issue was not raised in the court of appeals or in Corizon’s petition for
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review, and was not fully briefed, we decline to do so. See Ariz. R. Civ.
App. P. 23(d)(1) (requiring petition for review to set forth the “issues that
were decided by the Court of Appeals that the petitioner is presenting for
Supreme Court review”).

CONCLUSION

¶50 Although we largely affirm its conclusions and approve of its
reasoning, we vacate the court of appeals’ opinion to replace its reasoning
with our own. We reverse the trial court’s grant of summary judgment and
remand for the court to consider Corizon’s Rule 702 argument regarding
Panosky and for further proceedings consistent with this opinion.

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