Opinion
No. 1 CA-CV 19-0321
02-18-2020
ANDREA ADAMS-HUFF, Plaintiff/Appellant, v. RENEE OSTIN, FNP, et al., Defendants/Appellees.
COUNSEL Palumbo Wolfe & Palumbo PC, Phoenix By Elliot G. Wolfe Counsel for Plaintiff/Appellant Broening Oberg Woods & Wilson PC, Phoenix By Megan E. Gailey, James R. Broening, Alice Jones Counsel for Defendants/Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2015-005913
The Honorable James D. Smith, Judge
AFFIRMED
COUNSEL Palumbo Wolfe & Palumbo PC, Phoenix
By Elliot G. Wolfe
Counsel for Plaintiff/Appellant Broening Oberg Woods & Wilson PC, Phoenix
By Megan E. Gailey, James R. Broening, Alice Jones
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Diane M. Johnsen joined. HOWE, Judge:
¶1 Plaintiff Andrea Adams-Huff appeals from a grant of summary judgment to Defendants Renee Ostin, F.N.P., and Desert Bloom Medicine, L.L.C. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Ostin worked for Desert Bloom Medicine as a licensed family nurse practitioner. On December 11, 2013, she examined Adams-Huff, who complained of pain in her right foot. Ostin diagnosed Adams-Huff with uncontrolled diabetes, cellulitis, and an abscess on her foot. According to Ostin, she then advised Adams-Huff to go to the emergency room for an ultrasound to investigate possible blood clot formation. Adams-Huff claimed, in contrast, that Ostin told her to get an ultrasound "if the pain didn't get better within a few days[.]"
¶3 Adams-Huff went to Banner Estrella Medical Center on December 13 complaining again of pain in her right foot and was admitted. The on-call vascular surgeon, Dr. Michael Kralik, who was affiliated with Metro Heart Care, L.L.C., evaluated Adams-Huff the following morning and observed blood clots in her calf. He then conducted a "mechanical thrombolysis" to remove the clots.
¶4 Adams-Huff was discharged from Banner on December 22. Four days later, she was readmitted to Banner with a diagnosis of irreversible ischemia in her right foot. The attending physician recommended a "below-the-knee amputation." Adams-Huff's right leg was amputated two days later.
¶5 In April 2015, Adams-Huff filed a medical malpractice claim against various medical professionals, including Desert Bloom, Ostin, Banner, Metro, Dr. Kralik, and Heart Care, L.L.C. The complaint alleged, among other things, that (1) Ostin negligently examined, diagnosed, and treated Adams-Huff; (2) Ostin's negligence caused or contributed to Adams-Huff's loss of her right foot; and (3) Desert Bloom was vicariously liable for any fault on Ostin's part. The defendants answered, each asserting Adams-Huff's comparative fault as an affirmative defense.
¶6 The parties stipulated to complete all discovery by March 2018 but then informally agreed to extend the discovery deadline to May 2018. During discovery, Adams-Huff disclosed Victoria LaPorte, F.N.P., as her standard of care expert with respect to Ostin and Desert Bloom. Although LaPorte opined that Ostin deviated from the proper standard of care, she did not opine on causation, and, when deposed, LaPorte testified that she would not provide any causation opinions. Adams-Huff identified two other experts, Drs. Willis H. Wagner and Gregg D. Alzate, who opined about the cause of her injury. The disclosed opinions of Drs. Wagner and Alzate, however, did not mention anything about Ostin's acts or omissions being a cause of Adams-Huff's injury.
¶7 After the close of disclosure and discovery, Ostin and Desert Bloom moved for summary judgment, contending that none of Adams-Huff's experts had opined that an act or omission of Ostin caused or contributed to her injury. In response, Adams-Huff cited Dr. Alzate's testimony that Adams-Huff "had an 80-90% chance of keeping her limb" if a different type of thrombolysis had been performed immediately on December 14. She argued that Dr. Alzate's statement "logically" established that "there was at least an 80-90% chance, or more, of saving her leg earlier, on December 11, when [Adams-Huff] was negligently diagnosed and treated by [] Ostin." She also highlighted Dr. Wagner's testimony that "Dr. Kralik still had a better than 50% chance of saving [Adams-Huff's] leg surgically on and after December 14, if he had not been negligent, because the leg was still viable." She maintained that the "plain meaning" of Dr. Wagner's testimony was that Adams-Huff "had a good chance of her leg being saved on December 11, 12, and 13, as well as thereafter." Adams-Huff also submitted a declaration dated July 4, 2018, in which Dr. Alzate stated that "if there was an 80-90% chance of saving her foot on December 14, there was at least as good, or better, chance on December 11, 12, 13," 2013.
¶8 After full briefing and oral argument, the court granted the motion, noting that no expert opined that Ostin's acts caused Adams-Huff's injury. The court further noted that Adams-Huff failed to cite any authority that the "mechanism of injury" would be "readily apparent" to the jury without an expert's opinion, adding that the jury would be speculating if the court allowed it to decide whether Ostin caused the injury. The court also declined to consider Dr. Alzate's declaration, insofar as it disclosed new opinions, because it was provided after the close of disclosure and discovery and, accordingly, was untimely.
¶9 Adams-Huff then moved to reconsider, citing for the first time Dr. Kralik's response, filed two years before, to her partial summary judgment motion on the issue of her own alleged comparative fault before she sought treatment from Ostin. The Kralik opinion in turn referenced excerpts from Dr. Kralik's September 2016 disclosure statement. Adams-Huff highlighted the opinion by Dr. Kralik's disclosed expert, Dr. Aaron Braun, that "had Plaintiff undergone the atrial duplex study ordered by NP Ostin on 12/11/2013, the chance of saving the limb would have been greater." The court denied Adams-Huff's motion to reconsider and entered judgment pursuant to Arizona Rule of Civil Procedure 54(b). Adams-Huff timely appealed.
DISCUSSION
¶10 Adams-Huff argues that the trial court erred in granting summary judgment for Ostin and Desert Bloom. On review of a grant of summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law. Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 46 ¶ 16 (App. 2010). At the same time, we view the facts and reasonable inferences in the light most favorable to the party against whom the court entered judgment. Williamson v. PVOrbit, Inc., 228 Ariz. 69, 71 ¶ 11 (App. 2011).
¶11 To establish a claim for medical malpractice, a plaintiff must prove that "[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 that "[s]uch failure was a proximate cause of the injury." A.R.S. § 12-563. Whether proximate cause exists "requires consideration of all the facts," and "is usually a question for the jury, unless reasonable people could not differ." McMurty v. Weatherford Hotel, Inc., 231 Ariz. 244, 256 ¶ 38 (App. 2013). "'Unless 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." Silica v. Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 419 ¶ 16 (App. 2010) (quoting Gregg v. Nat'l Med. Health Care Servs., Inc., 145 Ariz. 51, 54 (App. 1985)).
¶12 The trial court correctly concluded that Adams-Huff had not met her burden to offer admissible evidence showing that any negligent act by Ostin caused her injury. See United Servs. Auto. Ass'n v. DeValencia, 190 Ariz. 436, 441 (App. 1997) ("When confronted with a motion for summary judgment, the responding party has the burden of presenting evidence that justifies trial."). On appeal, Adams-Huff concedes that none of her experts opined that an act or omission by Ostin was a cause of, or increased the risk of, the amputation of her leg. And to the extent that Dr. Alzate's tardy declaration might speak to causation, nothing required the trial court to consider it. See Ariz. R. Civ. P. 37(c)(1) ("[A] party who fails to timely disclose information, a witness, or document required by Rule 26.1 may not use the information, witness, or document as evidence at trial, at a hearing, or with respect to a motion."). Because Adams-Huff failed to provide the trial court with admissible evidence to establish that Ostin and Desert Bloom's alleged medical negligence proximately caused or contributed to the amputation of her leg, the court's entry of summary judgment was proper.
¶13 Adams-Huff cites an opinion by Dr. Wilson (an expert retained by Dr. Kralik) to show that Ostin was a cause of her harm. However, that opinion was disclosed in February 2019, after the trial court ruled on the Ostin motion for summary judgment and Adams-Huff's motion for reconsideration. Because Adams-Huff did not cite the opinion on summary judgment, we will not consider it on appeal. See GM Dev. Corp. v. Cmty. Am. Mortgage Corp., 165 Ariz. 1, 4 (App. 1990) (stating that this Court cannot consider evidence that was not part of the record before the trail court entered its decision). Likewise, we need not consider Adams-Huff's argument that Dr. Braun (another of Dr. Kralik's experts) "was disclosed to testify that had plaintiff undergone the atrial duplex study allegedly ordered by Ostin on 12/11/13, 'the chance of saving the limb would have been greater.'" Adams-Huff did not cite this opinion until she moved for reconsideration of the order granting summary judgment. See Evans Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, 240 ¶ 15 (App. 2006) (noting that appellate courts generally do not consider arguments or evidence first raised in a motion for reconsideration).
¶14 Adams-Huff maintains nonetheless that the trial court abused its discretion in ruling on the motion for reconsideration by disregarding Dr. Kralik's expert disclosure statements concerning Dr. Braun's opinion. But Dr. Kralik served those disclosure statements long before the summary judgment briefing, and Adams-Huff offers no explanation for her failure to cite them in her response to Ostin's motion. Nor does she claim that the evidence represents new facts or circumstances that came to light later. Cf. Union Rock & Materials Corp. v. Scottsdale Conference Ctr., 139 Ariz. 268, 273 (App. 1983) (noting that the trial court may consider new matters raised in a motion for reconsideration when the new facts or circumstances come to light between the granting of the motion for summary judgment and the motion for reconsideration).
¶15 Similarly, citing Ostin and Desert Bloom's initial disclosure statement, Adams-Huff argues that they made a judicial admission of causation when they joined Dr. Kralik and Metro Health Care in their position that "Plaintiff was contributorily negligent" and that "Plaintiff's contributory negligence include [sic] . . . failing to comply with care recommended and/or ordered by her treating providers[.]" The language is insufficient, however, because it pertains only to Adams-Huff's comparative fault, not Ostin's fault. Accordingly, the trial court did not err in its summary judgment ruling.
In her reply brief on appeal, Adams-Huff asserts the trial court applied the wrong standard in granting summary judgment, asserting that the court improperly focused only on what her experts directly opined and that the court required a showing that Ostin's acts were the cause of her injury. Those arguments are waived, see State v. Edmisten, 220 Ariz. 517, 522 ¶ 10 n.2 (App. 2009), and also not supported by the trial court's detailed minute entry addressing summary judgment when read in its entirety.
CONCLUSION
¶16 For the foregoing reasons, we affirm. Ostin and Desert Bloom may recover their taxable costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.