Korak v. Hu

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

REBEKAH ANN KORAK, et al., Plaintiffs/Appellants,

v.

STEPHEN HU, et al., Defendants/Appellees.

No. 1 CA-CV 19-0371
FILED 6-2-2020

Appeal from the Superior Court in Maricopa County
No. CV2015-090391
The Honorable Andrew J. Russell, Judge Pro Tempore

AFFIRMED

COUNSEL

Keith R. Lalliss Attorney at Law, Mesa
By Keith R. Lalliss
Counsel for Plaintiffs/Appellants

Holden & Armer, P.C., Phoenix
By Carolyn Armer Holden, Michael J. Ryan, Nathan S. Ryan
Counsel for Defendant/Appellee Khan

Jones, Skelton & Hochuli, P.L.C., Phoenix
By Eileen Dennis GilBride
Co-Counsel for Defendant/Appellee Hu

Kent & Wittekind, P.C., Phoenix
By Peter M. Wittekind, Cynthia Y. Patane
Co-Counsel for Defendant/Appellee Hu
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Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Kenton D. Jones joined.

W I L L I A M S, Judge:

¶1 Rebecca Ann Korak (“Korak”) appeals the superior court’s
order granting summary judgment in favor of Dr. Sarah Khan (”Khan”) and
Dr. Stephen Hu (“Hu”) on Korak’s claim of medical malpractice. For the
following reasons, we affirm the court’s order.

FACTUAL AND PROCEDURAL HISTORY

¶2 In February 2013, Korak spent four days in the Arizona
Regional Medical Center undergoing and recovering from a procedure to
remove her gallbladder. Three days after being discharged, Korak was
readmitted for complications from the procedure and subsequently
transferred to Mountain Vista Medical Center (“Mountain Vista”). While at
Mountain Vista, Korak underwent a CT scan on February 9th. Radiologist
Khan read the CT scan, but failed to identify an abnormality, known as a
pseudoaneurysm, that developed during the procedure days prior. On
February 15th, another CT scan was performed. Radiologist Hu read this
scan, but like Khan, failed to identify the pseudoaneurysm located on
Korak’s splenic artery, which had increased in size from February 9th.

¶3 On February 19th, Korak was discharged from Mountain
Vista. The next day, because of continued complications, Korak returned to
Mountain Vista where she underwent another CT scan. Radiologist Colvin
(“Colvin”) read the scan and identified the pseudoaneurysm for the first
time. Colvin also reviewed the CT scans from February 9th and 15th, and,
after observing the abnormality in both previous scans, noted that the
pseudoaneurysm was increasing in size. The results were relayed to the
attending physician, who discharged Korak the same day after deciding
corrective action was not needed.1 The next day, the pseudoaneurysm

1 There is some discrepancy in the record, and between the parties, whether

it was Dr. Raul Lopez or Dr. Ronald Genova who discharged Korak on
February 20th. The discrepancy, however, is immaterial to the appeal.

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ruptured. Korak was admitted to Banner Desert Medical Center, where she
underwent surgery to remove her spleen.

¶4 Khan and Hu each moved for summary judgment, which the
superior court granted. The court denied Korak’s motion for a new trial,
and Korak timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶5 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. Raimey, 224
Ariz. 42, 46, ¶ 16 (App. 2010). “[W]e view 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), but “will affirm a grant of
summary judgment if the trial court was correct for any reason,” Dreamland,
224 Ariz. at 46, ¶ 16.

¶6 In a medical malpractice action, a plaintiff must prove both
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; see also Ryan v. San Francisco Peaks Trucking Co.,
Inc., 228 Ariz. 42, 48-49, ¶ 23 (App. 2011).

¶7 Typically, the standard of care “must be established by expert
medical testimony.” Seisinger v. Siebel, 220 Ariz. 85, 94, ¶ 33 (2009); Ryan,
228 Ariz. at 49, ¶ 23; see also Phillips v. Stillwell, 55 Ariz. 147, 149 (1940)
(“Evidence as to what constitutes the proper degree of skill . . . can only be
given by expert witnesses . . . .”). “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). The showing of a proximate causal connection requires the plaintiff’s
expert “to testify as to probable causes of the plaintiff’s injury.” Benkendorf v.
Advanced Cardiac Specialists Chartered, 228 Ariz. 528, 530, ¶ 8 (App. 2012).

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I. Standard of Care

¶8 Korak’s expert witness, radiologist Dr. Richard Van Allan
(“Van Allan”), provided the compulsory preliminary expert affidavit. See
A.R.S. § 12-2603(B). As to the relevant standard of care, Van Allan opined:

9. I have been retained by . . . Korak to review records of
treatment of [Korak] during the month of February, 2013, and
to give an opinion as to whether or not the treatment [Korak]
received met the standard of care pertaining to board-
certified radiologists. The specific issue was whether or not
doctors practicing in radiology should have noted a
pseudoaneurysm on the splenic artery after a . . . procedure
was performed [in February 2013] . . . .

10. Among those records, I reviewed films of diagnostic
procedures performed on [Korak] on February 9, 2013 and
February 15, 2013. On the films of both of those dates, I noted
that the pseudoaneurysm was visible. The film taken on
February 9, 2013, reviewed by Sarah Khan, MD., one week
after the surgery, shows the splenic artery deformity . . . . The
film of February 15, 2013, reviewed by Stephen Hu, M.D.
shows the deformity . . . .

11. The pseudoaneurysm being visible on the films of both
February 9, and February 15, 2013, should have been noted
and reported by doctors Khan and Hu. Their failure to do so is
beneath the standard of care required of radiologists.

(emphasis added).

¶9 Based upon the record before us, Korak’s preliminary expert
affidavit was sufficient to withstand a motion for summary judgment as it
relates to standard of care.

II. Proximate Cause

¶10 As noted, supra ¶¶ 6-7, standard of care testimony is only half
of the equation. To survive summary judgment, an expert witness must
opine that the failed standard of care was the proximate cause of the injury
sustained. See A.R.S. § 12-563; Benkendorf, 228 Ariz. at 530, ¶ 8.

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¶11 Korak argues Van Allan was qualified to provide causation
testimony and that he adequately addressed the same in his affidavit. Van
Allan opined:

12. The purpose of the diagnostic procedures conducted on
February 9, 2013, and February 15, 2013, was to advise
treating physicians of any condition present with the patient
that would reasonably require a procedure to remedy, if
possible, the condition. The failure of Doctors Khan and Hu
to note and report the presence of damage to an artery
prevented the treating doctors from taking action to repair the
damage to the artery until the pseudoaneurysm was
discovered, after it began to bleed, on February 20, 2013.

¶12 The record does not support Korak’s argument. Van Allan’s
affidavit provides no expert opinion that treating doctors exercising
standard of care treatment probably would have “tak[en] action” differently
than what took place here had Khan and Hu “not[ed] and report[ed] the
presence of damage to an artery.” See Kreisman v. Thomas, 12 Ariz. App. 215,
218 (1970) (“Such causation must be shown to be Probable and not merely
Possible, and generally expert medical testimony that a subsequent illness
or disease ‘could’ or ‘may’ have been the cause of the injury is
insufficient.”).

¶13 Further, even if, arguendo, Van Allan, a radiologist, was
qualified to provide standard of care testimony for actions a surgeon or
other attending physician likely would have taken 2, there remains another
impediment to Korak’s position. In reviewing the limited transcript from
Van Allan’s deposition testimony included within the record 3, Van Allan
makes clear he was unable to confirm Khan and Hu’s standard of care
deficiency proximately caused Korak’s injuries:

2 The testifying expert witness must “specialize ‘in the same specialty or

claimed specialty’ as the treating physician.” 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.

3 Only two pages of the transcript from Van Allan’s deposition testimony

are included in the record. Korak had a duty to provide all relevant
transcripts to support her appeal. See ARCAP 11(c)(1)(B). In the absence of
a transcript, we presume the missing record supports the superior court’s
rulings. Kohler v. Kohler, 211 Ariz. 106, 108, ¶ 8 n.1 (App. 2005).

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[Defense Counsel]: Are you going to be offering -- I don’t see
in your affidavit. Maybe I missed it. Are you going to be
offering causation opinions in this case?

[Van Allan]: No.

....

[Defense Counsel]: . . . [I]s there any way to know whether or
not [the attending physicians] would have done anything
differently, more aggressively to address the splenic artery
pseudoaneurysm if they had known about it five days earlier
when they didn’t do anything about it on February 20th, or
would that just be speculation?

[Van Allan]: I don’t know the answer to that question.

¶14 Korak contends Van Allan’s affidavit sufficiently addressed
causation. We disagree. But even if it had, and Van Allan was qualified to
give an opinion, the deposition testimony would have discredited the
affidavit. When a witness’s deposition testimony contradicts his prior
affidavit, the deposition testimony is generally deemed to be more
trustworthy. See Ariz. Real Estate Dep’t v. Ariz. Land Title & Tr. Co., 14 Ariz.
App. 509, 511 (1971) (reasoning that “[b]ecause the affidavit lacks the
confrontation aspect of the deposition and is a one-sided proposition, we
believe that when an affidavit and deposition by the same person contradict
each other, a deposition taken when the deponent is subject to cross-
examination by the adverse party, normally should be held to be the more
trustworthy of the two”). Because Korak has failed to establish proximate
causation through expert opinion, the superior court did not err in granting
summary judgment for Defendants Khan and Hu.

CONCLUSION

¶15 For the foregoing reasons, we affirm the superior court’s
decision.

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

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