Reilly v. Mayo Clinic

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL JOSEPH REILLY, et al., Plaintiffs/Appellants,

v.

MAYO CLINIC ARIZONA, Defendant/Appellee.

No. 1 CA-CV 23-0566
FILED 05-16-2024

Appeal from the Superior Court in Maricopa County
No. CV2018-000020
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Palumbo Wolfe & Palumbo PC, Phoenix
By Elliot G. Wolfe
Counsel for Plaintiffs/Appellants

Snell & Wilmer LLP, Phoenix
By Robert H. Feinberg, Derek Flint, Colin P. Ahler
Counsel for Defendant/Appellee

REILLY, et al. v. MAYO CLINIC
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge James B. Morse Jr. joined.

C A T L E T T, Judge:

¶1 Following a bench trial, the superior court ruled against
Michael Reilly (“Reilly”) and in favor of Mayo Clinic Arizona (“Mayo
Clinic”) on Reilly’s claim for medical malpractice. Reilly appeals,
challenging several of the court’s findings and claiming the judge should
have recused himself. We conclude that none of the court’s findings were
clearly erroneous, and the judge was not required to recuse. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 After experiencing persistent abdominal pain, Reilly visited
the emergency room at Mayo Clinic, where physicians prescribed
medication. Reilly returned two days later again complaining of abdominal
pain. Concerned Reilly might have a pancreatic tumor, doctors ordered a
CT scan and admitted him to the hospital. The radiologist who performed
the CT scan observed a 2.3-centimeter hyperdense mass on the head of
Reilly’s pancreas but could not determine whether the mass was a tumor or
fatty tissue. The radiologist thought Reilly should undergo an MRI.
Another doctor evaluated Reilly and recommended an Endoscopic
Ultrasound and Fine Needle Aspiration (“EUS-FNA”) to rule out cancer.

¶3 A third doctor, Dr. Rahul Pannala, who is a
gastroenterologist, reviewed Reilly’s symptoms and the size of the mass
and recommended an EUS-FNA because, according to him, an MRI would
not definitively rule out a tumor. Reilly agreed to undergo an EUS-FNA,
which Dr. Pannala performed. Dr. Pannala documented that the procedure
was accomplished “without difficulty” and that Reilly “tolerated the
procedure well.” The sample from the EUS-FNA tested negative for cancer.

¶4 Several days later, Dr. Douglas Faigel, a professor of medicine
at Mayo Clinic emailed Dr. Pannala stating that the CT scan and the images
from the procedure did not convince him that the mass on Reilly’s pancreas
was a tumor. Dr. Faigel estimated the probability of a tumor at 50% before
the procedure and less than 10% after. About a year and a half after the

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procedure, Dr. Pannala exchanged texts with another doctor who asked
about Reilly’s medical history. Dr. Pannala stated he “didn’t have access to
the medical records,” but he recalled the EUS-FNA “was straightforward
but [Reilly] likely had a traction injury and tear.”

¶5 After the procedure, Reilly woke up with what he described
as the “worst pain.” A CT scan performed the day after the procedure
showed no signs of perforations in the area where the EUS-FNA occurred.
Several days later, Reilly had an elevated white blood cell count and
additional CT scans revealed evidence of perforations. Reilly underwent
exploratory surgery, and the doctor found bile drainage that was likely
infected, multiple perforations in his duodenum (part of the small
intestine), and two perforations in the common bile duct. Doctors
eventually removed Reilly’s duodenum and removed and reattached the
bottom third of his stomach. Reilly suffered severe complications rendering
him physically incapable of working or participating in activities he enjoys.

¶6 Reilly filed a complaint in superior court, alleging Mayo
Clinic, Mayo Clinic Arizona, and two doctors1 were negligent in providing
medical care. Following discovery, Reilly’s negligence claim proceeded to
a bench trial.

¶7 Reilly testified at trial that he remembered signing a consent
form for the EUS-FNA procedure, but he stated no one discussed the risks
or alternatives with him, and he did not remember seeing Dr. Pannala.
Reilly testified that if he had been “told that an MRI could diagnose the
difference between whether or not you had a tumor or whether you had
normal tissue in the pancreas,” he would have elected an MRI.

¶8 Dr. Pannala testified that it was his custom and practice to
discuss the risks of the EUS-FNA with patients and get their informed
consent. Dr. Pannala admitted that he did not discuss an MRI with Reilly
because, in his medical judgment, an MRI would not have provided the
information necessary for further treatment.

¶9 Reilly’s medical expert, Dr. Rudolph Bedford, testified that
Dr. Pannala breached the standard of care for informed consent by failing
to give Reilly the option of an MRI. As a result, Reilly “was not informed
of all of the potential possibilities and also alternative methods[.]” Dr.

1 Reilly agreed to dismiss his negligence claim against the two
doctors and Mayo Clinic, leaving Mayo Clinic Arizona as the only
defendant.

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Bedford also testified that, “within a reasonable probability,” an MRI would
have allowed Reilly’s doctors to determine whether the mass observed on
his pancreas was fatty tissue or a tumor.

¶10 Dr. Bedford also testified that Dr. Pannala breached the
standard of care when performing the EUS-FNA because he perforated
Reilly’s common bile duct. Dr. Bedford questioned whether the procedure
should have been performed at all based on Reilly’s duodenal diverticulum
being in a “somewhat concerning” place. He said there was a “reasonable
probability” the perforations may have weakened the wall of the
duodenum. He testified that the perforations also could have resulted from
a “traction injury,” which can occur when a scope with a rigid tip pulls and
pushes against tissue. Dr. Bedford explained there was a possibility that it
was traction from the scope “to the duodenal out-pouching that weakened
the wall of the duodenum,” resulting in a “traction injury.”

¶11 Mayo Clinic’s medical expert, Dr. Augustin Attwell, testified
that Dr. Pannala met the standard of care for informed consent. Dr. Attwell
explained that he would have been “highly concerned” that Reilly had a
neuroendocrine tumor based on the CT scan and would not have “wast[ed]
time on an MRI.” Dr. Attwell did not believe an MRI was “appropriate”
because there was a “clearly identifiable 2.3 centimeter lesion” that was
“hyperdense” and, in his opinion, there was “at least [an] 80, probably more
like 90 percent [chance] of a neuroendocrine tumor or an adenocarcinoma.”
Although the likelihood of cancer was less than 10 percent, a “normal” MRI
would not have excluded cancer.

¶12 Dr. Attwell also testified that Dr. Pannala met the standard of
care while performing the EUS-FNA. Dr. Attwell agreed with Dr. Pannala’s
technique and explained that a CT scan performed the day after the EUS-
FNA did not show perforations. He testified that unintentional
perforations of the bile duct can occur even when exercising reasonable
care, but they ordinarily do not cause concern because they “almost always
heal.” He testified that the risk of serious complications from the EUS-FNA
was only one in 1,500 to 3,000, depending on the study being relied upon.
He also testified that the description of the perforations following Reilly’s
exploratory surgery were inconsistent with a traction injury.

¶13 The superior court concluded Mayo Clinic was not negligent.
The court found that “Dr. Pannala testified that he spoke with Mr. Reilly
and explained to him the risks of the EUS-FNA procedure and the reasons
for it” but “Mr. Reilly has no recollection of this discussion.” The court
noted that serious complications from an EUS-FNA occur in about one in

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1,500 or 2,000 procedures. The court found credible Dr. Pannala’s
testimony that an MRI was not necessary because it would not have
definitively shown whether the mass was a tumor. The court concluded
that an “EUS-FNA would be necessary to rule out a tumor regardless of
whether an MRI was done” and if the choice of an MRI was put that way to
Reilly he “likely would have consented to the EUS-FNA because the
consequences of not diagnosing a cancerous tumor are so severe and
because the risk of serious complications from an EUS-FNA was relatively
low.” Thus, Dr. Pannala met the standard of care for informed consent.

¶14 The court also found that Dr. Pannala likely caused the two
perforations in the common bile duct during the EUS-FNA. The court
thought the cause of the perforations in Reilly’s duodenum was “less clear,”
but they were most likely caused by weak areas in the duodenum that were
further eroded by bile leaking from the common bile duct perforations. The
court found credible Dr. Attwell’s testimony that the common bile duct can
be inadvertently perforated during an EUS-FNA even while exercising
reasonable care. While the perforations in Reilly’s common bile duct likely
caused further perforations in the duodenum, the court described those
results as “extraordinarily rare[.]” The court found Dr. Pannala met the
standard of care for an EUS-FNA because the perforations of Reilly’s bile
duct were inadvertent, even though the perforations did not heal on their
own “with calamitous results[.]”

¶15 Reilly filed a motion for new trial, arguing the evidence did
not support the verdict. The superior court denied the motion and entered
final judgment in Mayo Clinic’s favor.

¶16 Reilly timely appealed. We have jurisdiction. See A.R.S. § 12-
2101(A)(5)(a).

DISCUSSION

¶17 Reilly argues the superior court erred in finding that Mayo
Clinic was not negligent in obtaining his informed consent for the EUS-FNA
or while performing that procedure. In an appeal following a bench trial,
“we review the evidence in a light most favorable to sustaining the verdict,”
and will accept the superior court’s factual findings “unless clearly
erroneous, giving due regard to the opportunity of the court to judge the
credibility of witnesses.” Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51 ¶ 11
(App. 2009); Ariz. R. Civ. P. 52(a)(6). “A finding of fact is not clearly
erroneous if substantial evidence supports it, even if substantial conflicting
evidence exists.” Castro, 222 Ariz. at 51–52 ¶ 11. Substantial evidence exists

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if a reasonable person could reach the same result as the superior court. Id.
at 52 ¶ 11. We review questions of law de novo. Id. ¶ 12; Ariz. Bd. of Regents
v. Phx. Newspapers, Inc., 167 Ariz. 254, 257 (1991).

¶18 The elements of medical malpractice are the same as
negligence–a “plaintiff must prove the existence of a duty, a breach of that
duty, causation, and damages.” Seisinger v. Siebel, 220 Ariz. 85, 94 ¶ 32
(2009). Informed consent claims “involving the doctor’s obligation to
provide information, must be brought as negligence actions.” Duncan v.
Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 310 ¶ 13 (2003). In a medical
negligence action, “a plaintiff must prove that (1) ‘[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
(2) ‘[s]uch failure was a proximate cause of the injury.’” Windhurst v. Arizona
Dep’t of Corr., 256 Ariz. 186, __ ¶ 14 (2023) (quoting A.R.S. § 12-563).

I. Breach - Informed Consent

¶19 Reilly argues the superior court erred in finding that Mayo
Clinic, through Dr. Pannala, complied with the standard of care for
informed consent when he did not give Reilly the option of undergoing an
MRI before the EUS-FNA. Reilly asserts that the court erred in finding that
he “likely would have given consent for an EUS-FNA if an MRI had been
offered and done, and showed normal tissue” because he testified
otherwise.

¶20 Reilly misconstrues the court’s findings. The court found that
an “EUS-FNA would be necessary to rule out a tumor regardless of whether
an MRI was done.” The court further found that if Mayo Clinic had
explained the MRI option that way, Reilly “likely would have consented to
the EUS-FNA because the consequences of not diagnosing a cancerous
tumor are so severe and because the risk of serious complications from an
EUS-FNA was relatively low.”

¶21 Reilly has not shown that either finding was clearly
erroneous. Reilly was questioned at trial as follows: If an “MRI could
diagnose the difference between whether or not you had a tumor or
whether you had normal tissue in the pancreas would [you] have opted for
it?” Reilly responded that he would have chosen an MRI. The court,
however, made a factual finding that an MRI could not have conclusively
ruled out the existence of a pancreatic tumor, thereby undercutting the
premise of Reilly’s testimony. While Dr. Bedford’s expert testimony and

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other evidence supports that an MRI could have ruled out cancer, Dr.
Pannala and Dr. Atwell testified otherwise. We cannot reweigh evidence
on appeal and find that an MRI could have ruled out a tumor when the
superior court, based on conflicting trial testimony, found otherwise. See
Ruesga v. Kindred Nursing Ctrs., LLC, 215 Ariz. 589, 597 ¶ 27 (App. 2007) (“To
the extent the parties presented facts from which conflicting inferences
could be drawn . . . , it was for the trial court, not this court, to weigh those
facts.”).

¶22 The court also did not clearly err in finding that Reilly likely
would have consented to the EUS-FNA given the severe consequences of
not diagnosing cancer and the low risks of serious complications. Dr.
Atwell testified that serious complications from an EUS-FNA occur in one
in every 1,500 to 3,000 procedures. Reilly, too, acknowledges that the
complications he suffered after the EUS-FNA have never been “seen, heard
of, or . . . reported in all the world’s medical literature.” When sitting as the
trier of fact, the superior court, like a jury, may rely on common sense and
experience in resolving factual issues. See State v. Aguilar, 169 Ariz. 180, 182,
818 P.2d 165, 167 (App. 1991) (“[J]urors may rely on their common sense
and experience[.]”). Having found that there was no other option for ruling
out a pancreatic tumor, and that there was an infinitesimal risk of serious
complications, the court did not clearly err in finding that Reilly would
have consented to the EUS-FNA.

¶23 Reilly also argues the court erred in finding that the EUS-FNA
was justified, relying on evidence that Dr. Faigel told Dr. Pannala that he
was “not at all convinced that this is a tumor, especially a neuroendocrine
tumor.” But Dr. Faigel sent the email making that statement several days
after Reilly’s EUS-FNA and, in it, Dr. Faigel put the probability of a tumor
at 50% before the procedure. Dr. Faigel’s email does not establish that the
court’s findings were erroneous.

¶24 Reilly emphasizes other evidence he claims contradicts the
court’s findings: the mass could have been (and was) only fatty tissue; a
radiologist recommended an MRI; Dr. Pannala chose not to tell him about
that option; and his medical expert testified that Dr. Pannala’s omission did
not meet the standard of care. While that evidence conflicts with Mayo
Clinic’s evidence, it does not negate the substantial evidence in the record
supporting the court’s factual findings. Again, conflicting evidence is not a
sufficient basis for us to reverse. In re U.S. Currency in Amount of $26,980.00,
199 Ariz. 291, 295 ¶ 9 (App. 2000).

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II. Breach - The EUS-FNA

¶25 Reilly also argues the court clearly erred in finding that Mayo
Clinic was not negligent while performing the EUS-FNA. The court found
that Dr. Pannala likely caused the two perforations in the common bile duct,
and those perforations likely resulted in bile leaking and causing further
perforations. But the court found that Dr. Pannala did not breach the
standard of care because “the common bile duct can be inadvertently
perforated during a fine needle aspiration of the pancreas despite the
exercise of reasonable care.”

¶26 Dr. Pannala and Dr. Atwell testified that the common bile
duct can be perforated during an EUS-FNA despite reasonable care. Dr.
Atwell further testified that Dr. Pannala met the standard of care for the
EUS-FNA because he acted reasonably, and unintentional perforations can
occur but “almost always heal.” On appeal, Reilly admits that “[t]here was
a dispute between the experts about whether a perforation of the common
bile duct could occur in the absence of negligence: The defense expert, Dr.
Atwell, said it could. The plaintiff’s expert, Dr. Bedford said it should not.”
The court resolved that “battle of experts” in favor of Mayo Clinic. We
cannot second guess that choice on appeal.

¶27 Reilly argues he “suffered injuries and damages that no other
gastroenterologist or endoscopist, performing this same procedure . . .
likely hundreds of thousands of times—had ever once seen, heard of, or
reported in the entire world literature.” Reilly’s description of his injuries
as rare is consistent with the court’s findings. Yet rarity of injury does not
establish breach of the standard of care. In fact, rarity of injury could
demonstrate a lack of foreseeability and, thus, a lack of breach or proximate
cause. See Gipson v. Casey, 214 Ariz. 141, 144 ¶ 16 (2007) (“[F]oreseeability
often determines whether a defendant acted reasonably under the
circumstances or proximately caused injury to a particular plaintiff.”). But,
ultimately, the superior court did not rely on a lack of foreseeability.
Instead, the superior court agreed with expert testimony that a medical
professional can fully comply with the standard of care in performing an
EUS-FNA and still perforate the common bile duct. Despite the rare and
tragic injuries Reilly suffered during and after his EUS-FNA, we cannot
overturn the court’s factual finding on appeal when supported by
substantial evidence, as it is here. See Hale v. Window Rock Unified Sch. Dist.,
252 Ariz. 420, 425 (App. 2021) (“But issues of breach and causation
necessarily implicate factual determinations that are reserved to designated
fact finders[.]”).

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III. Judicial Bias

¶28 The superior court judge did not disclose his spouse’s
employment as executive director of a palliative care facility at which
fellows from the Mayo Clinic College of Medicine and Science (“the Mayo
Clinic College”) volunteer. Reilly contends that omission violated Rule 2.11
of the Arizona Code of Judicial Conduct and should result in a new trial.

¶29 As an initial matter, Mayo Clinic argues that Reilly waived his
judicial bias argument in two ways. Mayo Clinic first contends that Reilly
failed to raise the issue with the superior court. Mayo Clinic argues Reilly
could have raised the argument earlier because the judge’s financial
disclosure statement on file with the Arizona Secretary of State lists his
spouse’s employment. Generally, failure to raise an issue with the superior
court results in waiver on appeal. Cont’l Lighting & Contracting, Inc. v.
Premier Grading & Utils., LLC, 227 Ariz. 382, 386 ¶ 12 (App. 2011). We are
not persuaded, however, that litigants must comb through a judge’s
financial statements to determine if there is a potential conflict of interest.
Instead, the Judicial Code of Conduct requires a judge to disclose
“information that the judge believes the parties or their lawyers might
reasonably consider relevant to a possible motion for disqualification, even
if the judge believes there is no basis for disqualification.” Ariz. Co. Jud.
Cond. 2.11 cmt. 5.

¶30 Mayo Clinic also argues that Reilly waived the issue by failing
to comply with Arizona Rule of Civil Appellate Procedure 13(a)(7). Mayo
Clinic asserts that Reilly’s “Opening Brief—with its three sentences of
citation-free ‘argument’ regarding alleged judicial bias—fails to comply
with the basic procedural requirements of [Rule] 13(a)(7)” and that Rule
13(a)(7) does not allow “a party to incorporate a prior motion by
reference[.]” Rule 13(a)(7) instructs that the “argument” section of an
opening brief must contain support for each of appellant’s contentions,
citations to legal authorities, and references to the portions of the record on
which appellant relies. Ariz. R. Civ. App. P. 13(a)(7). Here, the judicial bias
section of Reilly’s opening brief mostly incorporates by reference a previous
motion to stay Reilly filed with this court. While doing so violates Rule
13(a)(7), we address Reilly’s argument because it implicates judicial
conduct. Cf. Duncan v. Progressive Preferred Ins. Co. ex rel Estate of Pop, 228
Ariz. 3, 6 ¶ 12 (App. 2011) (addressing issue on appeal even though it was
not raised in the superior court because “orderly judicial administration is
a matter of statewide public importance”).

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¶31 Reilly has not established judicial bias requiring recusal. Rule
2.11 instructs that “[a] judge shall disqualify himself in any proceeding in
which the judge’s impartiality might reasonably be questioned,” such as
when the judge knows that his spouse is “a person who has more than a de
minimis interest that could be substantially affected by the proceeding.”
Ariz. Co. Jud. Cond. 2.11(A)(2)(c). Rule 2.11 also requires a judge to
disqualify himself when the judge’s spouse “has an economic interest . . . in
the subject matter in controversy or in a party to the proceeding.” Ariz. Co.
Jud. Cond. 2.11(A)(3).

¶32 A party who challenges a judge’s impartiality “must
overcome the presumption that [superior court] judges are ‘free of bias and
prejudice.’” Stagecoach Trails MHC, LLC v. City of Benson, 232 Ariz. 562, 568
¶ 21 (App. 2013) (citations omitted). To do so, the challenging party must
“set forth a specific basis for the claim of partiality and prove by a
preponderance of the evidence that the judge is biased or prejudiced.”
Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 63 ¶ 29 (App. 2010); Stagecoach
Trails MHC, LLC, 232 Ariz. at 568 ¶ 21 (“Judicial rulings alone do not
support a finding of bias or partiality without a showing of an extrajudicial
source of bias or a deep-seated favoritism.”).

¶33 Reilly provides only speculation about bias, not evidence of
bias. The Mayo Clinic College offers a Hospice and Palliative Medicine
Fellowship. That fellowship gives participants an opportunity to train in
various palliative-care facilities. The fellowship program collaborates with
Hospice of the Valley—a not-for-profit hospice organization in Phoenix.
Hospice of the Valley is a care partner of Ryan House—a separate hospice
and palliative care facility—and provides palliative care to patients at Ryan
House. As part of the fellowship, the Mayo Clinic College’s students can
provide care to patients at Ryan House. At the time of trial, the superior
court judge’s spouse was the Executive Director at Ryan House.

¶34 The relationship between Mayo Clinic and the superior court
judge’s spouse is far too attenuated to establish bias or require recusal.
Reilly has submitted no evidence that anyone involved in this case for Mayo
Clinic is involved with the Mayo Clinic College’s fellowship program, Ryan
House, or Hospice of the Valley. And, in any event, the judge’s spouse is
several steps removed from anyone with involvement here. To credit
Reilly’s judicial bias theory, one would have to ignore the distinction
between (i) the judge’s spouse and Ryan House, (ii) Ryan House and
Hospice of the Valley, (iii) Hospice of the Valley and the Mayo Clinic
College’s fellowship program, (iv) the Mayo Clinic College’s fellowship
program and the Mayo Clinic College, and (v) the Mayo Clinic College and

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Mayo Clinic (the defendant here). Merely identifying an attenuated
relationship between Mayo Clinic and Ryan House, without more, does not
establish that the superior court judge’s spouse had an interest that was
economic or more than de minimis. See Ariz. Co. Jud. Cond. 2.11(A)(2)(c),
(A)(3). Reilly has not presented the actual evidence necessary to overcome
the presumption of impartiality or otherwise establish that the superior
court judge was required to recuse.

CONCLUSION

¶35 We affirm the judgment.

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

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