Arnold v. Viewpoint

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WILLIAM ARNOLD, et al., Plaintiffs/Appellants,

v.

VIEWPOINT HEALTHCARE, INC, et al., Defendants/Appellees.

No. 1 CA-CV 23-0271
FILED 01-23-2024

Appeal from the Superior Court in Maricopa County
Nos. CV2019-050255
CV2022-053714
(Consolidated)
The Honorable Melissa Iyer Julian, Judge
The Honorable Sara Agne, Judge

AFFIRMED

COUNSEL

Reynolds Legal Group PLLC, Flagstaff
By Michael T. Reynolds
Counsel for Plaintiffs/Appellants

Ensign Services Inc., Higley
By Michael J. Ryan, Nichole Cullen
Co-Counsel for Defendants/Appellees

Jones Skelton & Hochuli PLC, Phoenix
By Jonathan Paul Barnes, Jr.
Co-Counsel for Defendants/Appellees
 ARNOLD, et al. v. VIEWPOINT, et al.
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MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Anni Hill Foster joined.

C A M P B E L L, Judge:

¶1 William Arnold and Bobbi Laniece Patterson (Parents) appeal
the superior court’s judgment denying relief under Arizona’s savings
statute, A.R.S. § 12-504. They also appeal the dismissal of their second
amended complaint against Viewpoint Healthcare, Inc., doing business as
Horizon Post Acute (Horizon), for noncompliance with A.R.S. § 12-2603.
For the following reasons, we affirm.

BACKGROUND

¶2 Parents’ son, Antonio Michael Patterson Arnold, had a septic
infection when he was admitted to a local hospital for treatment in February
2017. The infection spread to Antonio’s heart, causing tricuspid and mitral
valve endocarditis. Antonio underwent a tricuspid valve replacement to
mitigate the endocarditis but suffered a “complete heart block that
complicated his post-operative course of healing.” To address his escalating
heart issues, doctors installed a pacemaker. His health care providers
ordered him to take an antibiotic to treat the endocarditis until May 23.

¶3 After Antonio’s discharge from the hospital on April 25,
Horizon admitted him for post-acute rehabilitation. Antonio’s admitting
diagnosis report noted past opioid and stimulant abuse. On May 7,
Horizon’s nursing staff found Antonio’s deceased body on the floor after
an “unattended death” that occurred during intravenous antibiotic
administration. Antonio’s immediate cause of death on his death certificate
is listed as “endocarditis/valvular heart failure” due to “intravenous drug
abuse.”

¶4 In 2019, Parents sued Horizon and others for Antonio’s
wrongful death, negligence, and medical malpractice. Parents claimed (1)
the pacemaker was defective and did not include a back-up battery, (2) the
hospital prematurely discharged Antonio while he was unstable, and (3)
Horizon was understaffed and failed to appropriately monitor Antonio.
Because the litigation was filed against a licensed professional, Parents

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were required to certify whether expert testimony would be required “to
prove the licensed professional’s standard of care or liability for the claim”
A.R.S. § 12-2602(A). Parents indicated in their complaint that such
testimony would be required to prove their case.

¶5 To comply with their initial expert disclosure obligations,
Parents proffered a preliminary expert opinion affidavit authored by a
registered nursing expert, Ethel Wills. See A.R.S. §§ 12-2602(B), -2603. Wills’
curriculum vitae showed she had more than 30 years of experience in
nursing care. Among other things, Wills had provided care to patients with
cardiac conditions and had assessed and provided emergent care to
patients in cardiac distress.

¶6 In her preliminary expert opinion affidavit, Wills noted that
Horizon neglected to timely administer Antonio’s prescribed antibiotic.
Wills specifically opined that:

The nursing staff breached the standard of care of medication
administration by failing to give his medication at the right
time. During the 11 days that Antonio was at Horizon, [the
antibiotic] was administered more than an hour late 14 times.
Some administrations were two to three hours later than the
scheduled administration times. This inconsistency in his
receiving the antibiotic more likely than not affected
maintaining a therapeutic level of the antibiotic to treat the
endocarditis.

Wills also opined that shortly before Antonio’s death, Horizon’s nurse
failed to adequately monitor him during intravenous administration of the
antibiotic. Antonio’s treatment chart noted that administration of the
antibiotic began at 11:46 p.m. on May 6, 2017, and indicated that the nurse
returned at 1:10 a.m. on May 7, “finding him without a pulse and not
breathing.” Wills concluded:

In failing to return to monitor during the continuous infusion
of antibiotic during the hour, there was no consideration
made of the possibility of an adverse event relevant to the
medication administration. The failure to intervene caused
Antonio’s death.

Finally, Wills stated that Horizon’s nursing staff did not follow the care plan
established for the antibiotic therapy and failed to develop a care plan
relevant to the “medical diagnosis of endocarditis/valve replacement, and
pacemaker implantation.” She concluded that “[t]his negligent breach of

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the standard of medical care and the failure to consistently monitor the
patient, caused Antonio to pass away.”

¶7 In June 2022, the superior court dismissed Parents’ second
amended complaint against Horizon without prejudice.1 The court noted
that although Wills was qualified to testify about alleged deviations in the
standard of care, she was not qualified to opine that any nursing
interventions would have changed Antonio’s death due to
endocarditis/valvular heart failure. Ultimately, the court concluded that
Parents failed to comply with A.R.S. § 12-2603(B)(4), requiring an identified
expert to establish causation, and Arizona Rule of Evidence (“Rule”) 702,
regarding expert qualifications.

¶8 Parents sought entry of final judgment or alternative relief
under the savings statute, A.R.S. § 12-504, and refiled their lawsuit against
Horizon. The superior court consolidated the actions but declined to allow
the refiling of the lawsuit under the savings statute. The court relied on
Passmore v. McCarver, 242 Ariz. 288 (App. 2017), finding that Parents failed
to prosecute their case. The court dismissed the newly filed complaint and
entered a judgment of dismissal with prejudice, from which Parents appeal.

DISCUSSION

I. Causation Testimony

¶9 Parents argue the superior court erred by holding their
disclosed expert lacked the specialized knowledge to assist a jury in
determining causation under Rule 7022 and A.R.S. § 12-2603. The superior
court referred to Rule 702 as the standard governing expert qualifications.

1 Parents settled with or dismissed the remaining defendants.
2 Regardless of the rule or statute cited, A.R.S. § 12-2603 defines an
expert in the same way as Rule 702, which governs expert witness
testimony. Rasor v. Nw. Hosp. LLC, 244 Ariz. 423, 426, ¶ 12 (App. 2018);
compare A.R.S. § 12-2603(H)(2) with Ariz. R. Evid. 702. 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) (citations omitted). Notwithstanding
knowledge superior to that of the general population, ultimately a
causation expert’s knowledge must be such that the expert’s testimony
“will assist the jury in its resolution” of causation. Rasor, 244 Ariz. at 429,
¶ 23 (citation omitted); see also Windhurst v. Ariz. Dep’t of Corrs., ___ Ariz.
___, ___, ¶ 47, 536 P.3d 764, 775 (2023).

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Given the procedural posture of this case and the lack of any expert witness
testimony, in this decision we refer to A.R.S. § 12-2603(B)(1)’s requirement
that the affidavit set forth an expert’s qualifications to opine on liability. We
“must determine whether the judgment, not the reasoning, of the superior
court was correct.” Picaso v. Tucson Unified Sch. Dist., 217 Ariz. 178, 181, ¶ 9
(2007).

¶10 We review the superior court’s ruling determining an expert’s
qualifications for abuse of discretion. Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 387, ¶ 30 (2013). We review de novo the dismissal for the
failure to “properly certify the non-frivolous nature of the complaint
pursuant to A.R.S. § 12-2603.” Boswell v. Fintelmann, 242 Ariz. 52, 54, ¶ 5
(App. 2017).

¶11 In adopting A.R.S. § 12-2603, requiring a preliminary expert
opinion affidavit, the legislature has “erect[ed] an orderly procedure by
which the parties can litigate what expert witness testimony will be
necessary and what experts must be disclosed.” Sanchez v. Old Pueblo
Anesthesia, P.C., 218 Ariz. 317, 323, ¶ 20 (App. 2008). The statute “does not
require that the expert giving the preliminary affidavit serve as the expert
at trial.” Jilly v. Rayes, 221 Ariz. 40, 42–43, ¶ 6 (App. 2009). The affidavit
requirement is “meant to certify that the action . . . is not meritless.” Id. at
43, ¶ 6.

¶12 The affidavit must contain the expert’s qualifications to opine
on the health care professional’s standard of care or—as relevant here—
liability. A.R.S. § 12-2603(B)(1). An expert providing a preliminary expert
opinion affidavit must be “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.” A.R.S.
§ 12-2603(H)(2). The affidavit must also state “[t]he manner in which the
health care professional’s acts, errors or omissions caused or contributed to
the damages or other relief sought by the claimant.” A.R.S. § 12-2603(B)(4);
see also Gorney v. Meaney, 214 Ariz. 226, 231–32, ¶ 16 (App. 2007) (noting that
the preliminary expert opinion affidavit must state that the alleged
deviations in the standard of care proximately caused the harm).

¶13 Here, Wills’ affidavit failed to comply with A.R.S.
§ 12-2603(B)(4) because it failed to explain how any failure of care led to
Antonio’s death. The affidavit also failed to identify Wills’ qualifications
that would enable her to draw such inferences, as required by A.R.S.
§ 12-2603(B)(1).

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¶14 Wills’ first causation opinion addressed the untimely
administration of Antonio’s antibiotics. While Wills opined that delays in
medication administration resulted in the failure to maintain a therapeutic
level of the antibiotic to treat Antonio’s endocarditis, she did not sufficiently
state the “manner in which” this failure caused Antonio’s death as required
by A.R.S. § 12-2603(B)(4). Specifically, Wills failed to determine at what
point the failure to timely administer the antibiotic resulted in
sub-therapeutic levels of the antibiotic or if timely administration would
have prevented his death. And nothing in Wills’ affidavit or attached
curriculum vitae, such as experience in pathophysiology or the
pharmacokinetics of antibiotic therapy, showed that she was qualified
under A.R.S. § 12-2603(B)(1) or -2603(H)(2) to opine on the therapeutic level
of an antibiotic.

¶15 Wills next opined that Horizon’s nursing staff’s failure to
monitor the antibiotic infusion in the hour preceding Antonio’s death
caused his death. But Wills did not set forth the standard of care for
appropriate monitoring of a patient for intravenous antibiotic
administration,3 explain at what point proper monitoring would have
prevented the death, or explain if the death could have been prevented by
compliant monitoring. See Sampson v. Surgery Ctr. of Peoria, LLC, 251 Ariz.
308, 313, ¶ 23 (2021) (affirming summary judgment when plaintiff’s expert’s
testimony failed to “connect the dots” between an alleged insufficient
observation and the patient’s death because the jury would be left to
speculate). Wills did not satisfy A.R.S. § 12-2603(B)(4) because she did not
explain how failure to monitor the infusion caused Antonio’s death.

¶16 In their reply brief, Parents argue that Horizon nurses caused
or contributed to Antonio’s death by “failing to intervene in his cardiac
event and administer potentially life-saving [cardio-pulmonary
resuscitation].” But medical malpractice cases require proof of causation by
the probability standard, not the possibility standard. A.R.S. § 12-563(2);
Kreisman v. Thomas, 12 Ariz. App. 215, 218 (1970).

¶17 Finally, Wills’ third causation opinion, criticizing Horizon’s
treatment plans or lack thereof, was wholly conclusory and failed to link
the flaws in the treatment plan to the mechanism of Antonio’s death. Wills
did not state what an appropriate treatment plan would have been nor
establish that the failure to have one caused Antonio’s death. Again, Wills

3 For example, Wills did not explain whether the standard of care
required continuous observation or periodic checks at specific intervals.

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failed to show how Horizon’s actions or inaction caused Antonio’s death as
required by A.R.S. § 12-2603(B)(4).

¶18 Parents’ remaining arguments are similarly unavailing. They
argue that numerous other courts have permitted Wills to testify at
depositions and at trial regarding medical negligence and causation. But
Wills’ previous testimonial experience is irrelevant to the matter at hand.
See Englehart v. Jeep Corp., 122 Ariz. 256, 258 (1979) (stating that “the fact that
a witness has qualified as an expert on previous occasions does not make
him any more qualified to testify in the case at bar”). Parents also argue that
Wills’ affidavit need not have ruled out Antonio’s pre-existing conditions
as his sole cause of death. Although we agree, Wills’ affidavit nevertheless
failed to sufficiently state the mechanism of death as required by A.R.S.
§ 12-2603(B)(4). For the same reason, no further discovery examining Wills’
qualifications was necessary for the court to reach its conclusion. See
Sanchez, 218 Ariz. at 323–24, ¶ 23 (noting that A.R.S. § 12-2603 provides the
remedy for testing the sufficiency of an expert affidavit).

¶19 Because Parents failed to proffer a sufficient affidavit, the
superior court did not err in dismissing the action under A.R.S. § 12-2603(F).

II. Relief Under A.R.S. § 12-504

¶20 Parents argue the superior court misapplied Passmore by
concluding they failed to prosecute their case and denying relief to refile
their cause of action under the discretionary provisions of the savings
statute, A.R.S. § 12-504(A).4 We review for abuse of discretion the superior
court’s denial of discretionary relief under the savings statute. Passmore, 242
Ariz. at 291, ¶ 7; Jepson v. New, 164 Ariz. 265, 274 (1990).

¶21 When the superior court terminates an action for lack of
prosecution, it should only grant relief under A.R.S. § 12-504(A) when the
plaintiff demonstrates the case was dismissed “despite diligent pursuit of
the case.” Jepson, 164 Ariz. at 274. The plaintiff has the burden to present the
circumstances justifying relief under the statute. Id. at 272.

4 Horizon argues Parents waived this issue because when Parents
filed their motion for savings-statute relief, they asserted they were neutral
about whether the superior court should grant savings-statute relief or
enter final judgment. But Parents only sought savings-statute relief after
they moved for entry of final judgment, and a co-defendant responded that
the court should deny entry of final judgment because Parents could seek
relief under the savings statute. We find no waiver.

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¶22 In Passmore, this court held that a dismissal for failure to serve
a preliminary expert opinion affidavit is a dismissal for which the
discretionary relief provision in A.R.S. § 12-504(A) applies. 242 Ariz. at
291–92, ¶ 8. Parents argue that Passmore is inapposite because the plaintiff
in Passmore failed to serve any preliminary expert opinion affidavits, which
the superior court found amounted to lack of prosecution. See id. at 290,
292–93, ¶¶ 2, 13. Parents note that they served three preliminary expert
opinion affidavits; thus, they argue, they showed diligent efforts in
prosecuting their case. But the record does not support Parents’ argument.
In June 2021, the superior court struck Parents’ original and supplemental
preliminary expert opinion affidavits against a co-defendant. In January
2022, the superior court concluded that Parents’ more recent preliminary
expert opinion affidavit by a second expert against that same co-defendant
was deficient regarding causation. The sufficiency of affidavits regarding a
co-defendant is irrelevant to this appeal. More significantly, the holding in
Passmore did not turn on attempted compliance with statutory obligations;
it instead focused on the delay resulting from non-compliance. Id. at 292,
¶ 9 (noting that “[m]ere delay can be the basis of dismissal” and the failure
to satisfy A.R.S. § 12-2603 “is an unambiguous form of delay” (citation
omitted)).

¶23 Parents contend that because the superior court failed to tell
them they needed a physician to establish causation, they acted reasonably
and in good faith in moving forward with a preliminary expert opinion
affidavit from a nurse. But they did not necessarily need a physician
expert—a nurse expert would have been acceptable. In fact, the court
specifically cited Rasor, which held that a nurse may opine on causation if
she or he has specialized knowledge to assist the jury in its resolution on
the issue of causation. 244 Ariz. at 429, ¶ 23; see also Windhurst, ___ Ariz. at
___, ¶ 47, 536 P.3d at 775. The affidavit was deficient not because it was
provided by a nurse expert, but rather because it did not assist in the
resolution of the cause of Antonio’s death.

¶24 We conclude the superior court correctly determined Wills’
affidavit did not satisfy A.R.S. § 12-2603 regarding causation. This failure
amounted to a lack of prosecution for which Parents fail to meet their
burden to present circumstances justifying discretionary relief under A.R.S.
§ 12-504(A).

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CONCLUSION

¶25 For the foregoing reasons, we affirm the superior court’s
ruling. We award costs to Horizon upon compliance with ARCAP 21.

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

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