Henke v. Hospital

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARGARITA HENKE, et al., Plaintiffs/Appellants,

v.

HOSPITAL DEVELOPMENT OF WEST PHOENIX, INC., et al.,
Defendants/Appellees.

No. 1 CA-CV 23-0661
FILED 10-08-2024

Appeal from the Superior Court in Maricopa County
No. CV2019-001950
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

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

Gust Rosenfeld, PLC, Phoenix
By Jeffrey McLerran, Charles W. Wirken
Counsel for Defendant/Appellee Hospital Development of West Phoenix, Inc.

Holden & Armer, PC, Phoenix
By Michael J. Ryan, Nathan S. Ryan, Carolyn (DeeDee) Armer Holden
Counsel for Defendants/Appellees Morium Chowdhury, Emergency Group of
Arizona, PC and Quantum Plus, Inc.
 HENKE, et al. v. HOSPITAL, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Anni Hill Foster and Judge Angela K. Paton joined.

B A I L E Y, Judge:

¶1 Margarita Henke (“Mrs. Henke”) appeals from the superior
court’s summary judgment for Hospital Development of West Phoenix Inc.,
dba Abrazo West Campus, and its emergency medical physician, Dr.
Morium Chowdhury (collectively, “Defendants”). For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts and reasonable inferences in the light most
favorable to Mrs. Henke, as the party opposing the summary judgment
motion. See Windhurst v. Ariz. Dep’t of Corr., 256 Ariz. 186, 191, ¶ 11 (2023)
(citation omitted).

¶3 One day in March 2017, Greg Henke (“Mr. Henke”) was seen
by a medical doctor at urgent care for persistent body aches, chills, and a
fever. The doctor was concerned Mr. Henke had bacterial endocarditis—
that is, a bacterial infection of the heart’s inner lining—which was
potentially life-threatening because Mr. Henke had an artificial heart valve.
The doctor directed Mr. Henke to the emergency room “to be evaluated for
possible endocarditis.”

¶4 That same day, Mr. Henke went to the Abrazo emergency
room and was examined by Dr. Chowdhury. After conducting a physical
examination, an abdominal and pelvic CT scan and a hematology test, Dr.
Chowdhury diagnosed Mr. Henke with “[v]iral syndrome” and discharged
him with instructions to follow up with his primary care provider within
one to two days.

¶5 Mr. Henke died days later. An autopsy revealed the cause of
death was “[c]omplications of sepsis due to acute bacterial endocarditis[.]”

¶6 Mrs. Henke brought a wrongful death action against
Defendants. She claimed Defendants negligently failed to provide

2
 HENKE, et al. v. HOSPITAL, et al.
Decision of the Court
reasonably prudent emergency medical care to Mr. Henke and their
negligence caused his death.

¶7 Mrs. Henke disclosed two causation expert witnesses:
infectious disease specialist Dr. Patrick Joseph and thoracic surgeon Dr.
Alexander Marmureanu. Dr. Joseph was disclosed to testify:

It is also my opinion that the failure of the emergency
medicine physician at Abrazo West Campus on March 4,
2017, to evaluate Mr. Henke for endocarditis, as requested by
[the urgent care doctor] when he spoke to Nurse Amber at
Abrazo, was a cause of, or contributed to, Mr. Henke’s death,
in that it likely deprived him of a chance of survival.

Dr. Joseph stated he “is unable to quantify the decreased chance of survival
due to the lack of specialty consultation, and medical or surgical
intervention.”

¶8 Dr. Marmureanu was disclosed to testify: “It is my opinion
that, if Mr. Henke would have been admitted to the hospital on March 4,
2017, (as he should have been) he would have undergone immediate
medical treatment for his sepsis associated with endocarditis, and more
likely than not, he would have survived.”

¶9 Dr. Chowdhury offered the opinions of infectious disease
specialist Dr. Brian Blackburn on the causation issue. Dr. Blackburn was
disclosed to testify that he “is aware that Arizona law requires plaintiff to
prove her case by clear and convincing evidence, and he will clarify that the
chance of survival on March 4, 2017 does not justify a conclusion that
survival was highly likely or highly probable at that point.”

¶10 Defendants moved for summary judgment, arguing Mrs.
Henke failed to establish the prima facie elements of medical negligence by
clear and convincing evidence. See Arizona Revised Statutes (“A.R.S.”)
section 12-572 (An emergency health professional and emergency
department are “not liable for any civil or other damages as a result of any
act or omission” unless the elements of proof are “established by clear and
convincing evidence.”). Defendants asserted Mrs. Henke’s causation
experts had not opined to “a high degree of medical probability” that the
alleged negligence was the proximate cause of Mr. Henke’s death.

¶11 After hearing oral argument, the superior court granted
Defendants’ motion for summary judgment, finding neither causation
expert had opined that “if Mr. Henke had been diagnosed with endocarditis

3
 HENKE, et al. v. HOSPITAL, et al.
Decision of the Court
on March 4, 2017, he would have survived to a high degree of medical
probability.” The court found Dr. Joseph’s opinion to be “equivocal”
because it did “not state that [Mr. Henke’s] death was due to the action or
inaction of Dr. Chowdhury, and in fact, he is not able to quantify Mr.
Henke’s potential for survival in this situation.” The court similarly found
Dr. Marmureanu’s opinion insufficient to meet the clear and convincing
evidence burden because he stated Mr. Henke “more likely than not”
would have survived if he had been admitted to the hospital. The court
ruled:

The underlying issue is whether [Mrs. Henke] could
prove her case based on these opinions. Certainly, these
expert opinions would be admissible at trial and the jury is
the finder of fact as to whether [Mrs. Henke] has proven her
case by clear and convincing evidence. However, if [Mrs.
Henke] were to attempt to elicit testimony from either of these
experts that Mr. Henke’s death was caused by action or
inaction by Dr. Chowdhury to a high degree of medical
probability, that testimony would constitute an opinion that
was not disclosed prior to trial, which would be inadmissible
under Rule 37(c)(1) [of the Arizona Rules of Evidence]. That
would leave the jury hearing only the expert opinions as
mentioned above. And, ultimately, that would be insufficient
to meet the high standard of clear and convincing evidence
required by A.R.S. § 12-572. Therefore, as a matter of law,
[Mrs. Henke] would not be able to prove her case.

¶12 Mrs. Henke moved to reconsider and attached a
supplemental declaration by Dr. Marmureanu in which he opined: “it is
highly probable that if on March 4, 2017 during his ER visit, Mr. Henke had
undergone the standard endocarditis work-up . . . he would have survived
this episode of endocarditis.” The superior court denied the
reconsideration motion.

¶13 Mrs. Henke timely appealed. We have jurisdiction pursuant
to A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Motion for Summary Judgment

¶14 We review de novo a grant of summary judgment, viewing
the facts in the light most favorable to the non-moving party. Tilley v. Delci, 220 Ariz. 233, 236, ¶ 7 (App. 2009).

4
 HENKE, et al. v. HOSPITAL, et al.
Decision of the Court
¶15 Mrs. Henke argues the superior court erred in granting
Defendants’ motion for summary judgment based on the experts’
disclosures before discovery was complete. She contends her experts’
opinions were sufficient for the jury to find that the totality of the evidence
makes causation highly probable.

¶16 “In medical malpractice actions, as in all negligence actions,
the 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)
(citation omitted). Under A.R.S. § 12-563, 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.” See also Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 384,
¶ 12 (2013) (“In medical malpractice cases, plaintiffs must show that a
health care provider breached the appropriate standard of care and the
breach resulted in injury.”).

¶17 Because Dr. Chowdhury is an emergency physician and
treated Mr. Henke in the Abrazo emergency room, Mrs. Henke’s burden of
proof on the prima facie elements of medical negligence is clear and
convincing evidence. A.R.S. § 12-572; see also Stafford v. Burns, 241 Ariz. 474,
477, ¶ 2 (App. 2007) (“[T]he heightened standard of proof for claims against
a health professional set forth in A.R.S. § 12-572(A) applies whenever the
acts or omissions plaintiff contends were deficient were provided in the
course of evaluating and treating a patient in a hospital emergency
department.”). Mrs. Henke had to establish her prima facie medical
malpractice claim on all substantive elements by clear and convincing
evidence, including, as relevant here, whether Defendants’ acts caused Mr.
Henke’s death.

¶18 A plaintiff must establish causation using expert medical
testimony, unless the malpractice is so “readily apparent” that a jury can
infer causation. Sampson v. Surgery Ctr. of Peoria, LLC, 251 Ariz. 308, 311,
¶ 13 (2021) (quoting Rasor v. Nw. Hosp., LLC, 243 Ariz. 160, 166, ¶ 32 (2017)).
As the superior court noted, causation was not readily apparent, so Mrs.
Henke’s experts had to “connect the dots” between the claimed standard of
care violation and Mr. Henke’s death. Id. at 313, ¶ 23.

¶19 Dr. Joseph opined that Dr. Chowdhury’s failure to evaluate
Mr. Henke for endocarditis “likely deprived [Mr. Henke] of a chance of
survival.” Dr. Joseph further stated he was “unable to quantify the
decreased chance of survival due to the lack of specialty consultation, and

5
 HENKE, et al. v. HOSPITAL, et al.
Decision of the Court
medical or surgical intervention.” Dr. Marmureanu opined that if Mr.
Henke had been admitted to the hospital for immediate medical treatment,
he “more likely than not” would have survived. Notably, Dr. Marmureanu
did not name Dr. Chowdhury in his opinion.

¶20 “[A] party who has the burden of proof by clear and
convincing evidence must persuade the jury that his or her claim is highly
probable. This standard is more exacting than the standard of
preponderance of the evidence, but less exacting than the standard of proof
beyond a reasonable doubt.” State v. Renforth, 155 Ariz. 385, 388 (App.
1987). Here, neither expert offered an opinion to a reasonable degree of
medical certainty or probability that Dr. Chowdhury’s actions caused Mr.
Henke’s death. See In re M.H. 2007-001236, 220 Ariz. 160, 169, ¶ 29 (App.
2008) (clear and convincing evidence of medical issue requires “evidence
expressed to a reasonable degree of medical certainty or probability”).

¶21 Mrs. Henke argues Sampson does not apply here because it
did not concern an emergency room physician, and thus the clear and
convincing evidence standard for causation was not relevant. We disagree.
At issue in Sampson was whether the jury could infer proximate cause, and
whether expert testimony on causation is required in a medical malpractice
action. 251 Ariz. at 311, ¶ 11. Those issues are present here. In Sampson,
our supreme court emphasized that “the requirement of expert testimony
in a medical malpractice action is a substantive component of the common
law,” and that “failure to produce such a witness results in judgment for
the defendant[.]” Id. at 311–12, ¶ 16 (citing Seisinger, 220 Ariz. at 94–95, ¶¶
35, 38). The court held that in a medical malpractice action, the plaintiff
must provide expert medical testimony to show causation under the
applicable burden of proof. Id. at 311, ¶¶ 12–17. The court concluded that
“expert testimony establishing causation was essential . . . [g]iven that even
the medical experts did not agree on the cause of death, it is unrealistic to
conclude . . . that a jury could properly infer that the early discharge was
the probable cause of [the patient’s] death.” Id. at 312, ¶ 21 (internal
quotation marks omitted). That holding applies here.

¶22 Mrs. Henke also argues the superior court erred by taking the
causation issue away from the jury. But Mrs. Henke could not elicit
testimony from either causation expert that it was “highly probable” Mr.
Henke’s death was caused by action or inaction by Dr. Chowdhury, see
Renforth, 155 Ariz. at 388, or that they believed the “evidence expressed to
a reasonable degree of medical certainty or probability,” that Dr.
Chowdhury caused Mr. Henke’s death, see In re M.H. 2007-001236, 220 Ariz.
at 196, ¶ 29, because those opinions were not disclosed before trial. See Ariz.
R. Civ. P. 37(c)(1) (“[A] party who fails to timely disclose information, a

6
 HENKE, et al. v. HOSPITAL, et al.
Decision of the Court
witness, or a 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.”). And while Mrs. Henke asserts that discovery had not concluded
before the court granted summary judgment, she did not seek relief under
Rule 56(d), which “prescribes the procedure for seeking additional
evidence to combat a summary judgment motion.” Rasor, 243 Ariz. at 164,
¶ 18.

¶23 Finally, Mrs. Henke argues that no statute or case requires an
expert’s opinion on the degree or level of the defendant’s fault. She asserts
that such testimony would improperly invade the province of the jury, and
that “magic words” in a disclosure, declaration, or testimony at trial are not
required.

¶24 There is no dispute that Mrs. Henke’s burden of proof in this
medical negligence action was clear and convincing evidence. A.R.S. § 12-
572. Clear and convincing evidence requires the claim to be “highly
probable.” Renforth, 155 Ariz. at 388. To meet this burden, the causation
experts needed to opine to a high degree of medical probability that the
alleged standard of care violations proximately caused the death. Failure
to do so would leave the jury to speculate on causation, which is not
permitted. Sampson, 251 Ariz. at 309, ¶ 1.

¶25 We conclude that Mrs. Henke’s disclosed expert opinions
were insufficient to meet the clear and convincing evidence standard
required under A.R.S. § 12-572, and thus summary judgment was
appropriate.

II. Motion for Reconsideration

¶26 We review the denial of a motion for reconsideration for an
abuse of discretion. Tilley, 220 Ariz. at 238, ¶ 16. Mrs. Henke argues the
superior court abused its discretion when it denied her reconsideration
motion and rejected Dr. Marmureanu’s supplemental declaration.

¶27 Defendants’ summary judgment motion put Mrs. Henke on
notice of the applicable evidentiary standard. Rule 56(c)(2), Ariz. R. Civ. P.,
requires the party opposing summary judgment to file a response and “any
supporting materials within 30 days after the motion is served.” Mrs.
Henke failed to submit Dr. Marmureanu’s supplemental declaration—or
any other expert statements addressing the clear and convincing evidence
standard—as part of the summary judgment pleadings. Instead, she
argued her causation experts were not required to endorse their own
opinions to be clear and convincing or highly probable; she asserted such

7
 HENKE, et al. v. HOSPITAL, et al.
Decision of the Court
conclusions would “invade the province of the jury.” Even after Dr.
Chowdhury disclosed a causation expert to testify that “Arizona law
requires plaintiff to prove her case by clear and convincing evidence, and
he will clarify that the chance of survival on March 4, 2017 does not justify
a conclusion that survival was highly likely or highly probable at that
point,” Mrs. Henke offered no response statements from her causation
experts on the clear and convincing evidence standard.

¶28 In her reconsideration motion, Mrs. Henke offered no reason
for providing the supplemental declaration only after the court’s summary
judgment ruling. Instead, she asserted the “law prohibits a medical expert
or any other witness from telling the finder of fact his or her opinion on
whether the burden of proof has been met.” She is incorrect. See Seisinger,
220 Ariz. at 94, ¶ 33 (noting that, absent expert testimony, plaintiff could
not meet the burden of production under the common law “except when it
was ‘a matter of common knowledge . . . that the injury would not
ordinarily have occurred if due care had been exercised’”) (citation
omitted). Emergency medicine is not a matter of common knowledge. And
as earlier discussed, the jury may not determine causation based on
speculation built on inference. Sampson, 251 Ariz. at 311, ¶ 13.

¶29 Ultimately, Mrs. Henke stated, “if Dr. Marmureanu were
allowed to give an opinion, it is his opinion that . . . it is ‘highly probable’
that Mr. Henke would have survived this episode of endocarditis.”
(Emphasis in original.) She thus acknowledges an expert witness can opine
about the applicable burden of proof in a medical malpractice action.

¶30 Motions for reconsideration are not to be used to make new
arguments or to present new evidence. Brookover v. Roberts Enters., Inc., 215
Ariz. 52, 57, ¶ 17 n.2 (App. 2007). The superior court did not abuse its
discretion in denying Mrs. Henke’s motion for reconsideration.

CONCLUSION

¶31 We affirm.

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

8