Salazar v. Wilson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HILDA SALAZAR, et al., Plaintiffs/Appellants,

v.

RICHARD W. WILSON, et al., Defendants/Appellees.

No. 1 CA-CV 24-0920
FILED 09-25-2025

Appeal from the Superior Court in Maricopa County
No. CV2021-012445
The Honorable John L. Blanchard, Judge

AFFIRMED

COUNSEL

Degnan Horne, Phoenix
By Mark W. Horne, Justin Fouts
Counsel for Plaintiffs/Appellants

Mac Ban Law Offices, Tucson
By Barry A. Mac Ban, David F. Toone
Counsel for Defendants/Appellees
 SALAZAR, et al. v. WILSON, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Andrew M. Jacobs joined.

C A T L E T T, Judge:

¶1 In this medical malpractice action, Araceli Maldonado
(“Maldonado”) appeals a jury verdict for Dr. Richard Wilson (“Dr.
Wilson”) and asks us to order a new trial. She argues the superior court
erred by declining to instruct the jury on a loss of chance theory.
Maldonado also argues the court incorrectly instructed the jury on
causation. Because the court did not abuse its discretion when it declined
to give a loss of chance instruction and it correctly instructed the jury on
causation, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In August 2018, Hilda Salazar (“Salazar”), Maldonado’s
mother, saw a primary care physician, Dr. Baker, after noticing an
abdominal lump. Dr. Baker performed an ultrasound and told Salazar that
she probably had fibroids. Because Dr. Baker was not a gynecologist, he
referred Salazar to Southwest Contemporary Women’s Care for a
consultation.

¶3 In December 2018, Salazar met with Dr. Wilson, a
gynecologist. He performed a physical exam and told Salazar she had
fibroids that would resolve on their own. Dr. Wilson prescribed birth
control and ibuprofen to address Salazar’s pain and cramping. He
explained that the birth control would also “shrink the fibroid.”

¶4 Salazar took the medication as prescribed, but her condition
worsened. In May 2019, Salazar again saw Dr. Baker. He was surprised
Salazar’s gynecologist had not removed the fibroid, but he did not refer her
back to Dr. Wilson or urge her to see another specialist.

¶5 The abdominal lump continued to grow, so in October 2019,
Salazar went to Dr. Wilson and requested surgical intervention. She
scheduled surgery, but it never occurred due to issues with insurance.

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¶6 The lump grew larger still, so in January 2020, Salazar went
to the emergency room; she was in great pain and had lost her appetite.
Doctors evaluating Salazar immediately suspected the lump was cancerous
and scheduled surgery. A few days later, doctors removed an eight-pound
mass from Salazar’s abdomen. Tests confirmed Salazar had an aggressive
form of cancer, and she began treatment. Salazar sued Dr. Wilson, alleging
medical malpractice for failing to diagnose the cancer, but she passed away
in 2023 before trial. Maldonado substituted as plaintiff on behalf of
Salazar’s beneficiaries.

¶7 Before trial, Maldonado requested the following loss of
chance jury instruction: “If you find that [Dr. Wilson’s] failure to exercise
reasonable care increased the risk of the harm he undertook to prevent, you
may find from this fact a ‘probability’ that [Dr. Wilson’s] negligence was
the cause of the damage.” Dr. Wilson objected, arguing that under
Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597 (1984), a jury should
not be instructed on loss of chance. At the close of trial, Maldonado again
requested a loss of chance instruction.

¶8 The court denied Maldonado’s requests for the instruction
but permitted her to argue “in closings about what you think the jury
should do with the evidence . . . including any loss of chance.” The court
instructed the jury that “[o]n any claim, the party who has the burden of
proof must persuade you, by the evidence, that the claim is more probably
true than not true.” It also instructed the jury on causation as follows:
“Negligence causes an injury if it helps produce the injury, and if the injury
would not have happened without the negligence.” The jury returned a
full defense verdict for Dr. Wilson, and the court entered judgment in his
favor.

¶9 Maldonado timely appealed. We have jurisdiction. See A.R.S.
§ 12-2101(A)(1).

DISCUSSION

¶10 Maldonado argues the court (1) erred by refusing to give a
loss of chance instruction and (2) misstated the law in its causation
instruction. We review a court’s refusal to give a requested jury instruction
for an abuse of discretion. State v. Dann, 220 Ariz. 351, 363–64 ¶ 51 (2009).
But we review de novo whether an instruction correctly states the law.
Cavallo v. Phoenix Health Plans, Inc., 254 Ariz. 99, 104 ¶ 15 (2022).

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 SALAZAR, et al. v. WILSON, et al.
Decision of the Court

I. Loss of Chance

¶11 “A party is entitled to an instruction on any theory of the case
if reasonably supported by the evidence.” A Tumbling-T Ranches v. Flood
Control Dist. of Maricopa Cnty., 222 Ariz. 515, 533 ¶ 50 (App. 2009). A court
must give an instruction if (1) the evidence supports the instruction, (2) the
instruction is appropriate under the law, and (3) the instruction pertains to
an important issue and is not adequately covered by another instruction.
Paz v. City of Tucson, 256 Ariz. 391, 395 ¶ 7 (App. 2023).

¶12 Maldonado requested that the court instruct the jury that it
could find causation if “[Dr. Wilson’s] failure to exercise reasonable care
increased the risk of the harm he undertook to prevent[.]” But our supreme
court has already decided that loss of chance “is not a subject of instruction;
it is for the court.” Thompson, 141 Ariz. at 608; see id. at 607 n.10. Under
Thompson, the superior court was not required to give the instruction, and
it did not abuse its discretion by refusing to do so.

¶13 Maldonado acknowledges that Thompson rejected any
entitlement to a loss-of-chance instruction. But she urges that the portions
of that opinion doing so were non-binding dicta. If not, she urges us to
overrule Thompson. Maldonado misreads Thompson, and we are powerless
to overrule our supreme court.

¶14 Our supreme court’s discussion about a loss-of-chance
instruction was not dicta. One primary issue in Thompson was whether the
superior court erred by refusing a loss-of-chance instruction. See id. at 605–
06 (discussing a plaintiff’s request for an instruction that causation could be
proven by showing that the defendant increased the risk of harm to the
plaintiff). The court held that a loss of chance can satisfy causation and
adopted Restatement (Second) of Torts § 323. Id. at 608. The court then
narrowed how § 323 applies by further holding that loss of chance “is not a
subject of instruction.” Id. That statement directly addressed whether the
superior court in Thompson erred in refusing to give an instruction, so it was
not dictum. Id.; cf. Swenson v. County of Pinal, 243 Ariz. 122, 126 ¶ 10 (App.
2017) (“A court’s statement on a question not necessarily involved in the
case before it is dictum.” (citation omitted)).

¶15 We also cannot overrule Thompson. We are bound by the
Arizona Supreme Court’s opinions and have “no authority to overrule,
modify, or disregard them.” Prosise v. Kottke, 249 Ariz. 75, 79 ¶ 20 (App.
2020) (quoting State v. Thompson, 194 Ariz. 295, 298 ¶ 20 (1999)). If

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Decision of the Court

Maldonado wants Thompson overruled, she must ask the supreme court to
do so—and we express no view on whether it should.

II. Causation

¶16 Maldonado next argues the superior court incorrectly
instructed the jury on causation. Causation is a legal requirement for any
medical malpractice claim and generally is a question of fact for the jury.
Windhurst v. Ariz. Dep’t of Corr., 256 Ariz. 186, 194 ¶ 25 (2023). The superior
court instructed the jury on causation as follows: “Negligence causes an
injury if it helps produce the injury, and if the injury would not have
happened without the negligence.” Maldonado argues the court erred in
saying causation requires that “the injury would not have happened
without the negligence.”

¶17 The court did not err. Its causation instruction mirrors how
our supreme court has defined causation for nearly a century. See id. at 194
¶ 25 (defining causation as “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 occurred. (emphasis added)”); Sampson v.
Surgery Ctr. of Peoria, LLC, 251 Ariz. 308, 311 ¶ 15 (2021) (same); Chapman v.
Salazar, 40 Ariz. 215, 219 (1932) (“Proximate cause was defined by the court
as follows: ‘Now, the proximate cause of an injury is that which, in a natural
and continuous sequence, unbroken by any new cause, produces an injury,
and without which the injury would not have occurred.’ Appellants object
to this definition but do not point out wherein it is wrong. It is a definition
frequently given and entirely correct.”).

¶18 The court also instructed the jury that it could find for
Maldonado if she persuaded them that her “claim is more probably true
than not true.” Thus, the court’s instructions were consistent with the
court’s comment in Thompson that the “jury is still instructed that they must
find for the defendant unless they find a probability that defendant’s
negligence was a cause of plaintiff’s injury.” 141 Ariz. at 608; see id. at 607
n.10 (“There was no need for the judge to do more than instruct on the
general principles of probability and causation.”). We discern no error in
the court’s jury instructions.

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Decision of the Court

CONCLUSION

¶19 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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