Rasor v. Nw. Hosp. LLC
Rasor v. Nw. Hosp. LLC
Opinion of the Court
¶ 1 In January 2015, the trial court entered summary judgment in favor of Northwest Medical Center (Northwest or the hospital) in the medical malpractice action filed by Karyn Rasor and her husband (the Rasors). They appealed, and in an opinion filed on May 17, 2016, we concluded the Rasors' proffered expert witness was unqualified to give standard-of-care testimony; however, we reversed the trial court's denial of the Rasors' request for additional time to secure a new expert and vacated its summary judgment order. Rasor v. Nw. Hosp., LLC (Rasor I ),
¶ 2 Upon review, our supreme court agreed that the Rasors' expert did not qualify as a standard-of-care expert but remanded the case to us to determine two additional issues: whether the expert was qualified to testify to causation, or if expert testimony on causation was not required. Rasor v. Nw. Hosp., LLC (Rasor II ),
Factual and Procedural Background
¶ 3 On appeal from summary judgment, we view the facts in the light most favorable to the party against whom summary judgment was entered. See Wilson v. Playa de Serrano ,
¶ 4 Based on Karyn's allegedly permanent pain and other symptoms, the Rasors brought a medical malpractice action against Northwest in July 2013, alleging the hospital had "breached its professional duties ..., proximately causing the development of a decubitus ulcer" by failing to "appropriately off-load" Karyn and "negligently fail[ing] to timely discover" the ulcer during her intensive care. In support of their claim, the Rasors *958retained a single expert, a board-certified wound-care nurse, Julie Ho, R.N. In Ho's opinion, Northwest had not adequately repositioned Karyn during recovery, causing the development of a pressure ulcer, which worsened because of the hospital's failure to respond appropriately after discovering it. The Rasors filed a motion to qualify Ho as an expert on the standard of care, causation, and prognosis, or, in the alternative, to be permitted to identify a new expert.
¶ 5 Northwest subsequently filed a motion for summary judgment, asserting that Nurse Ho "d[id] not qualify under Arizona Rule of Evidence, Rule 702, A.R.S. § 12-2603, and A.R.S. § 12-2604" to render opinions in this matter such that the Rasors "[we]re unable to establish that [the hospital] breached the applicable standard of care and [the] Complaint should be dismissed." At the hearing on the Rasors' motion, the trial court found that Ho could testify to the standard of care and stated, "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?" However, the court also said, "[W]hat I'm concerned about is whether or not she could testify as to causation," ultimately concluding that the Rasors could introduce her expert opinion "regarding wound care."
¶ 6 At the oral argument on Northwest's summary judgment motion, the Rasors again asked that they be permitted to find a new expert witness if the trial court determined that Nurse Ho was unqualified. The court, however, denied that request and granted summary judgment without explanation.
Causation Expert Witnesses
¶ 7 Before addressing whether Nurse Ho was qualified to testify to causation in this case, we must determine whether the Rasors needed to provide a causation expert at all. See id. ¶¶ 32-33. " '[U]nless a causal relationship is readily apparent to the trier of fact,' expert medical testimony normally is required to establish proximate cause in a medical negligence case." Salica v. Tucson Heart Hosp.-Carondelet, L.L.C. ,
¶ 8 The Rasors' generalized contention is undercut by another section of their opening brief that quoted an explanation of "the mechanism of injury" from the hospital's disclosure statement:
Pressure over a bony prominence causes tissue ischemia in the skin, muscle, and the fascia between the skin surface and bone. The pressure compresses small vessels and prevents both supply of oxygen and nutrients at the capillary interface as well as venous return of metabolic wastes. Metabolic wastes accumulate and cause local vasodilatation, which contributes to edema, which further compresses small vessels and increases edema and ischemia. Local tissue death then occurs, resulting in a pressure ulcer.
The record also includes testimony from the hospital's expert regarding numerous factors contributing to development of a pressure ulcer, which he stated in Karyn's case went beyond her being "critically ill in the ICU, on vasopressors, with decreased circulation" and "the intubation with mechanical ventilation *959and an intra-aortic balloon pump" making her "difficult to mobilize in bed." He went on to identify as "additional risk factors" that Karyn was "hypoalbuminemic," "mildly anemic," "a smoker," and had "two collagen vascular disorders, rheumatoid arthritis and systemic lupus erythematosus," both of which were "pro-inflammatory conditions" that would contribute to other risk factors for development of pressure ulcers.
¶ 9 We cannot conclude a jury would find the process of developing a pressure ulcer and attendant contributing factors, particularly in Karyn's case, as well as the resulting existence or lack of a causal relationship "readily apparent." Accordingly, this case requires expert testimony regarding causation. Cf. Frausto v. Yakima HMA, LLC ,
¶ 10 We next turn to the issue of expert qualifications. "Apart from issues of statutory interpretation, which we review de novo, we review trial court determinations on expert qualifications for an abuse of discretion," applying this standard of review "equally ... to admissibility questions in summary judgment proceedings." Baker v. Univ. Physicians Healthcare ,
¶ 11 As it did below, the hospital primarily relies on the fact that the Rasors' proffered witness was a nurse, and not a doctor, to argue she was unqualified to testify as a causation expert. Specifically, Northwest asserts, "Given the complex pre-existing conditions that Ms. Rasor had, along with her complex medical problems, surgery and post-surgical complications, conditions and interventions, it is beyond the scope of a nurse to render a medical causation opinion," particularly "in this case where Ms. Ho admitted that the development of a pressure ulcer is multifactorial and depends on the patient's co-morbidities and conditions-areas which she did not even consider." In the hospital's supplemental brief, it requests that we "state a bright line rule that a nurse cannot offer causation opinions in a medical malpractice action."
¶ 12 Section 12-2603(A), A.R.S., governs expert testimony in medical malpractice cases and requires the filing of an affidavit stating "whether or not expert opinion testimony is necessary to prove the health care professional's standard of care or liability for the claim." If such affidavit asserts the need for expert testimony, claimants must then file a "preliminary expert opinion affidavit" including "[t]he 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). Section 12-2603(H)(2) defines an expert in the same terms as Rule 702 : " 'Expert' means a person who is qualified by knowledge, skill, experience, training or education to express an opinion regarding a licensed health care professional's standard of care or liability for the claim."
¶ 13 Our supreme court has previously noted that "[t]he overall purpose of Rule 702... is simply to ensure that a fact-finder is presented with reliable and relevant evidence." State v. Bernstein ,
¶ 14 But for standard-of-care experts in such cases, A.R.S. § 12-2604(A) imposes additional criteria that must be met for the expert to testify. Section 12-2604(A) specifically limits its application to "expert testimony on the appropriate standard of practice or care." But no corresponding statute or rule imposes additional requirements on causation experts in medical malpractice cases. See State v. Christian ,
¶ 15 The issue still remains whether a nurse, and Nurse Ho in particular, is qualified to testify regarding causation. At the outset, we reject the hospital's request for a bright line rule prohibiting nurses from testifying as causation experts in medical malpractice cases. As noted above, through § 12-2604, the legislature expressly created stricter criteria for standard-of-care experts in such cases than for other experts, including those testifying to causation. As our supreme court recognized in Seisinger , quoting from our decision in that case on appeal, § 12-2604"precludes a witness who is otherwise qualified under Rule 702 from testifying [to the standard of care] in a medical malpractice case unless he or she meets the additional criteria set forth in the statute."
¶ 16 Our conclusion also comports with those of several other jurisdictions. See Frausto ,
*961¶ 17 Northwest seeks to distinguish Frausto on the basis that the proffered expert there was a nurse practitioner while this case involves a nurse, asserting, "A nurse does not have the education, nor is a nurse allowed by law to make a medical diagnosis. A nurse cannot diagnose or treat any medical condition." Section 32-1601(23)(a), A.R.S., however, provides, " 'Registered nursing' includes ... [d]iagnosing and treating human responses to actual or potential health problems." Section 32-1601(23)(d) additionally allows a registered nurse to "[e]stablish[ ] a nursing diagnosis," which Ariz. Admin. Code R4-19-101 defines as "a clinical judgment, based on analysis of comprehensive assessment data, about a client's response to actual and potential health problems or life processes. Nursing diagnosis statements include the actual or potential problem, etiology or risk factors, and defining characteristics, if any." Moreover, "etiology" means "[t]he branch of medicine that deals with the causes or origins of disease" or "[t]he cause or origin of a disease or disorder as determined by medical diagnosis." The American Heritage Dictionary 611 (5th ed. 2011).
¶ 18 To the extent there is a distinction between the "diagnosing" that nurses are permitted to do under Arizona law and a "medical diagnosis," we find it a distinction without a difference as it pertains to the threshold question of whether nurses in general may give causation testimony in medical malpractice cases. Like Washington's supreme court, we conclude that "[a] sweeping ban on causation testimony from expert [nurses] is unnecessary and inconsistent with" the authority granted to them under Arizona statutes and the Arizona Administrative Code. Frausto ,
¶ 19 Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
In the context of this rule, our supreme court has stated, "The test of whether a person is an expert is whether a jury can receive help on a particular subject from the witness. The degree of qualification goes to the weight given the testimony, not its admissibility." Seisinger ,
¶ 20 In this case, when the Rasors identified Nurse Ho as an expert witness they intended to call at trial, she was a registered and certified wound-care nurse, then working as a director of wound care at a long-term, acute-care hospital. During Ho's deposition, she stated that her role at that hospital included "admission assessments," "weekly re-assessments," and "care planning," and she "provided treatments and collaborat[ed] with physicians[ and others] for the plan and care for the patients." Additionally, although she was then working in a long-term, acute-care hospital, she had spent the first nine years of her career in a coronary care unit of an acute-care hospital like Northwest, was cross-trained for the ICU, *962and had gained experience working with patients recovering from open-heart surgery.
¶ 21 According to the Rasors' disclosure, Nurse Ho had reviewed Karyn's medical records, the hospital's policies for preventing pressure ulcers, and information from the nurses regarding their interaction with Karyn. The Rasors proffered that Ho would testify Northwest "should have relieved the pressure created over Ms. Rasor's coccyx by repositioning her correctly and utilizing a specialty pressure relieving surface" and "[h]ad Northwest Hospital properly provided these standard interventions, the deep tissue injury should have been avoided." Ho would also testify that after one of the nurses observed "bruising over the coccyx," she should have "[a]t a minimum" "attempt[ed] to remove all pressure which caused the deep tissue injury" and the "failure to intervene likely le[ ]d to a worsening of the injury, which ultimately ended in a stage IV decubitus ulcer open to the coccyx bone."
¶ 22 During Nurse Ho's deposition, the hospital elicited her testimony that she did not "intend to give an opinion with regard to any predisposing or premorbid conditions that Ms. Rasor had with respect to the development of the pressure ulcer" and had not been given access to Karyn's entire medical chart for the time she was at Northwest. Additionally, although Ho stated that her opinion was "to a reasonable degree of medical probability," "relying on best practice[s] and research," she also stated she was not making a medical diagnosis as to causation but rather "an assessment" because "[a] pressure ulcer is not a medical diagnosis."
¶ 23 On appeal, Northwest points to these portions of Nurse Ho's testimony and argues "her opinions are not based on sufficient facts or data, the product of reliable principles and methods, and principles and methods reliably applied to the facts of this case" and "she disqualif[ied] herself based on her testimony." Initially, we disagree with the hospital's conclusion that Ho disqualified herself by stating she was making "an assessment" of causation rather than a medical diagnosis of causation. Northwest has identified no authority, nor are we aware of any, for the proposition that testimony on the causation of injuries must be a "medical diagnosis" as opposed to "an assessment." As we concluded in Lohmeier v. Hammer , "under Arizona law, it is not necessary that an expert witness be a medical doctor in order to offer testimony regarding the causation of physical injuries so long as ... the expert has specialized knowledge that will assist the jury in its resolution of that issue."
¶ 24 As for the hospital's argument that Nurse Ho's opinion is not sufficiently well-founded, we note that in both its answering and its supplemental brief, Northwest falls back on its assertion that a nurse is not qualified to give causation expert testimony, a premise we have already rejected. Additionally, although the hospital may question the foundation and strength of Ho's opinion given that she did not review Karyn's complete medical records, that issue goes to the weight of her testimony and is not sufficient to render the opinion so unreliable as to preclude it altogether. See Bernstein ,
*963scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies."), quoting Langill ,
Conclusion
¶ 25 As our supreme court has observed, 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 ,
Disposition
¶ 26 For the foregoing reasons, summary judgment is vacated and the case is remanded to the trial court for the Rasors to seek Rule 56(d) relief and for any other proceedings consistent with this opinion.
Our supreme court specifically directed that should we determine summary judgment was inappropriate on causation, on remand to the trial court, the Rasors should be provided an opportunity to use Rule 56(d) to seek to obtain a qualified standard-of-care expert. See Rasor II ,
Rule 56(a), Ariz. R. Civ. P., directs that trial courts "should state on the record the reasons for granting or denying" a motion for summary judgment.
To the extent that Nurse Ho's proposed testimony may blend causation and standard of care, the parties and trial court are not prevented from addressing the issue and, if necessary, restricting it to the former by way of further proceedings, such as a motion in limine and/or limiting instruction.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.