Challenging Unqualified Expert's Report Not Required: Ariz. High Court

Arizona med-mal defendants may argue that an expert witness is unqualified and move directly for summary judgment without first challenging an expert's preliminary report, the Arizona Supreme Court has ruled, removing a step in having a case with an inadequate expert tossed.

In Rasor v. Northwest Hospital, LLC, Ariz. Sup. Ct., CV-16-0134-PR, the plaintiff Karyn Rasor underwent surgery at Northwest Medical Center (NWMC), was placed in a medically induced coma in the intensive care unit (ICU) and during her time in the ICU developed a pressure ulcer which required multiple medical procedures and resulted in permanent residual damage. Rasor sued NWMC claiming that the preventative wound care provided by ICU nursing staff caused her injuries.

Rasor retained Julie Ho, RN as her wound care expert witness. Ho was a certified wound care nurse working in a long-term acute care facility where she worked performing assessments and care planning. Ho opined that NWMC failed to adequately reposition Rasor during her recovery, causing the pressure ulcer, and then failing to provide appropriate care after discovering the ulcer.

NWMC deposed Ho after the expert disclosure deadline. After the deposition, Rasor filed a preemptive motion to qualify Ho as an expert on standard-of-care, causation and prognosis. Rasor alternately asked to identify another expert if the court precluded any of Ho's opinion.

NWMC then moved for summary judgment, arguing that Ho was unqualified as a standard-of-care or causation expert as she was a wound-care specialist and not a certified ICU nurse.

At oral argument on Rasor's motion, the trial court found Ho qualified to testify about standard-of-care, stating "I'm going to let you go with a wound care witness rather than an ICU nurse. You can take that to the bank, okay?", but the court expressed doubt as whether Ho could testify as to causation.

At oral arugment on NWMC's motion for summary judgment, Rasor again asked for permission to find another expert if Ho was found unqualified. The trial court denied that request and granted summary judgment without explanation.

Rasor appealed. The court of appeals agreed with NWMC that Ho was unqualified as a standard-of-care expert, finding that either a certified ICU specialist was required or, if ICU nurses are considered generalists, a practicing generalist was required.

However, the appeals court also concluded that the trial court should have allowed Rasor to find a different expert under the Arizona Revised Statutes (ARS §12-2603(F)). As well, the appeals court cited Preston v. Amadei, 238 Ariz. 124, App. 2015), writing: "As in Preston, the defendant did not challenge the sufficiency of the preliminary expert affidavit, but rather challenged the expert's qualifications in a summary judgment motion after the expert disclosure deadline had passed." The appeals court also noted that the trial court "strongly indicated Ho's opinions would be admitted at trial." The trial court erred, in the appellate court's opinion, in denying Rasor's request to substitute a new expert.

Both NWMC and Rasor sought review by the Arizona Supreme Court.

That court found the central issue to be the relationship between ARS §12-2603, which sets the requirements for preliminary expert reports, and §12-2604, which sets out the expert qualifications for standard-of-care testimony.

Rasor argued that §12-2603(F) required NWMC to challenge Ho's preliminary expert report before challenging Ho's qualifications in its motion for summary judgment.

The state supreme court disagreed with the appellate court and with Preston, noting the appellate court decision in St. George v. Plimpton, 241 Ariz. 163 (App. 2016) where that court upheld a summary judgment dismissing a medical malpractice claim for failure to establish expert qualifications. In St. George, the appeals court held that once the motion for summary judgment was filed, to procure additional time to find an alternative, the plaintiff would have to file an affidavit pursuant to Arizona Rule of Civil Procedure 56(d)(formerly Rule 56(f)). Because the plaintiff in St. George did not file a Rule 56(d) affidavit and request for relief, the appeals court held that the trial court did not err in denying extra time.

The Arizona Supreme Court concluded that challenging an expert's preliminary report under ARS §12-2603 is not a prerequisite for filing a summary judgment motion for lack of expert witness qualifications under §12-2604. The proper course for Rasor was to seek relief under Rule 56(d) after Ho's qualifications were challenged for the first time in the summary judgment motion. Without seeking relief under Rule 56(d), summary judgement for the defense would be justified.

However, the state supreme court continued that judicial opinions on the relationship between §12-2603 and §12-2604 were conflicting, and the trial court repeatedly indicated that it would allow Rasor to use Ho as a standard-of-care witness. As the trial court did not explain why it granted summary judgment to NWMC, the state supreme court found it impossible to know whether the trial court had changed its mind.

The Arizona Supreme Court remanded the case to the appellate court, finding that "[i]f the court of appeals determines that expert testimony on causation is required and Ho is not qualified to provide it, it should affirm the trial court's grant of summary judgment to NWMC. If it decides otherwise, it should remand to the trial court to provide Rasor an opportunity to file a Rule 56(d) motion and for any other appropriate proceedings."

Although the legal arguments in this case center on the relationship between the preliminary expert report and the expert's qualifications, this case also clarifies that a standard-of-care expert witness must be practicing in the identical specialty as the one the claim is based on.