Borowsky v. Scottsdale

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE LISA BOROWSKY, Plaintiff/Appellant, v. SCOTTSDALE HEALTHCARE CORPORATION, an Arizona corporation; MICHAEL W. EDER, M.D. AND JANE DOE EDER, husband and wife, Defendants/Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/16/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CV 10-0114 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2007-051480 The Honorable Robert H. Oberbillig, Judge REVERSED AND REMANDED Carmichael & Powell, P.C. By David J. Sandoval Attorneys for Plaintiff/Appellant Phoenix Jones, Skelton & Hochuli, P.L.C. By William R. Jones, Jr., Eileen Dennis GilBride, and Jennifer A. Baker Attorneys for Defendant/Appellee Scottsdale Healthcare Corporation Phoenix K E S S L E R, Presiding Judge ¶1 Appellant Lisa Borowsky ( Borowsky ) appeals the trial court s decision granting summary Healthcare Corporation ( SHC ). 1 erred in finding that there judgment for Scottsdale Borowsky argues that the court was insufficient evidence for a reasonable jury to find that SHC s nursing staff contributed to her injuries. We agree and reverse the court s order. FACTUAL AND PROCEDURAL HISTORY 2 ¶2 In complaining emergency May of of 2005, symptoms on-call Borowsky went to consistent with appendicitis. surgeon, Dr. Eder, a diagnosed SHC hospital Borowsky The with acute appendicitis and performed an emergency appendectomy on her the next day. ¶3 In the days after the surgery, Borowsky experienced discomfort in her abdomen, blood in her stool, and a fever. 1 Dr. Dr. Eder and his wife are named in the caption of this appeal; however, Borowsky and Dr. Eder reached a settlement before the trial court granted SHC s motion for summary judgment. Dr. Eder is no longer a party in this case. 2 In her statement of facts, Borowsky does not cite the record on appeal, but instead exhibits attached to her opening brief. These are not references to the record on appeal. Lansford v. Harris, 174 Ariz. 413, 417 n.1, 850 P.2d 126, 130 n.1 (App. 1992). Pursuant to SHC s request, we disregard Borowsky s statement of facts and base our decision on the facts we found in the record. See ARCAP 13(a)(4); Bird v. State, 170 Ariz. 20, 20 n.2, 821 P.2d 287, 287 n.2 (App. 1991). Also, Borowsky cites documents not in the record. We do not rely on any statement made that is not found in the record. See State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App. 1990). 2 Eder ordered a CT scan of her abdomen and that the nurses report back to him if Borowsky s Hemocrit and Hemoglobin ( H&H ) blood levels dropped below 10, which could indicate internal bleeding. On the day she was discharged, Borowsky s H&H levels dropped to 8.9. Dr. Eder testified during his deposition that he was not told of Borowsky s low H&H levels, 3 and he discharged her from the hospital. ¶4 Later on Clinic hospital. 4 that same day, Borowsky went to the Mayo The Mayo Clinic tested Borowsky s H&H levels, which had increased to 9.6. Borowsky underwent immediate tests, including a colonoscopy and laparoscopy, which revealed changes in the mucosal tissue and possible death of living tissue ( necrosis ) in the intestinal area around the incision due to a 3 It is clear there is a factual dispute whether SHC nurses told Dr. Eder of the low 8.9 H&H levels. While Dr. Eder did not recall giving the order for the nurses to inform him if Borowsky s H&H levels were low, once shown the nurses notes in Borowsky s chart, he agreed that he must have given the order. He then testified that the nurses never told him of the low levels. At oral argument, SHC read from previously undisclosed medical records indicating that nurses did speak to Dr. Eder about Borowsky s H&H levels, and later spoke with Dr. Yoon, the discharging doctor, specifically about the 8.9 H&H levels. The medical record as read indicated that Dr. Yoon then spoke with Dr. Eder and both agreed to discharge Borowsky. 4 The only facts in the record regarding Borowsky s treatment at SHC and Mayo Clinic are from the testimony of Borowsky s causation expert, Dr. Hiyama, and Dr. Eder. None of Borowsky s medical records are in the record. This Court presumes any missing documents support the trial court s order. Ashton-Blair v. Merrill, 187 Ariz. 315, 317, 928 P.2d 1244, 1246 (App. 1996). Therefore, we presume Dr. Eder s and Dr. Hiyama s testimony is correct regarding what is in Borowsky s medical records. 3 loss of blood supply ( ischemia ). A surgeon operated on Borowsky to repair the damage caused from the first surgery, which was that Borowsky s cecum and ileocolic vessels (parts of the intestines) were incorporated into the fascial closure of Borowsky s incision. ¶5 Borowsky filed a complaint against SHC and Dr. Eder alleging medical malpractice. She supported her claim with two experts: one to testify about breach of standard of care, and the other, Dr. Hiyama, to testify about proximate causation as to the conduct of Dr. Eder and SHC s employees. ¶6 In his deposition, Dr. Eder testified that he did not recall receiving reports of Borowsky s H&H levels, but he knew for sure that he was not told her H&H levels fell to 8.9. 5 Dr. Eder stated that he would not have discharged Borowsky had he known about bleeding. 6 her He low H&H levels further testified out of concern for internal that someone suffering from ischemia should be operated on as soon as possible: 5 Despite not being told about Borowsky s low H&H levels, Dr. Eder testified that he was not aware of anything that the nurses did or did not do which caused Ms. Borowsky harm. 6 Referring to the Mayo results that her H&H levels increased to 9.6, Dr. Eder testified that if Borowsky s levels were at 9.6 while under his care, he probably would have discharged Borowsky with an order to report to an outpatient facility for retesting in a few days. Alternatively, if he had refused to discharge Borowsky based on her H&H levels of 9.6, he would have observed her rather than perform any procedure because at those levels, she was hemodynamically stable. 4 Q. [by Sandoval] We talked colitis. I just want to getting my medical terms would reflect an inflammation about ischemic make sure I m right. Colitis of the colon? A. [by Dr. Eder] Correct. Q. And ischemic means insufficient blood flow? it s due to A. Yes. Q. Once there s a diagnosis of unresolving ischemic colitis, is there any timetable in which that operation needs to be done? . . . A. Usually as soon as possible. Q. [] It s not something that you want to schedule a week after the diagnosis? A. No. Q. Again, because when blood is cut off to tissue, it can die and it s best to remedy that before that happens, right? A. Right. ¶7 In his deposition, Dr. Hiyama testified that he believed he was hired to serve as the surgical expert regarding the care that was delivered to Miss Borowsky by Dr. Eder. Hiyama s opinion was that: Dr. Eder s refusal to authorize a gastrointestinal CAT scan as specifically requested by Miss Borowsky, cancellation of Miss Borowsky s scheduled consultation with another surgeon and ultimate discharge of Miss Borowsky from Scottsdale Healthcare created the delay that may have contributed to the resulting ischemia and necrosis of 5 Dr. Miss Borowsky s cecum, a portion of the terminal ileum and a portion of the colon. Dr. Hiyama would not offer an opinion about whether SHC s nurses did anything to cause Borowsky harm during her hospital stay because he did not know the conveyed to [Dr. Eder]. 7 suffering from ischemia information that was really He testified, however, that someone should be operated on as soon as possible, because, the longer [ischemia] occurs or consists and is not reversed or corrected, the higher the chance that the tissue damage testified that that it occurs would will be increase. speculation for Dr. Hiyama him to also consider whether the events that transpired at Mayo Clinic [would] have occurred at Scottsdale if Borowsky had not been discharged. ¶8 SHC filed a motion for summary judgment, alleging that Borowsky [did] SHC s employees not have admissible proximately caused evidence Borowsky s to prove injuries. that SHC cited Dr. Hiyama s refusal to testify that the nurses actions or failure to act caused Borowsky harm. SHC argued that Dr. Hiyama was Borowsky s only causation witness and the time had passed for disclosure of other expert witnesses. 7 Dr. Hiyama also stated that he would like to review Dr. Eder s and Borowsky s depositions. At the request of defense counsel, he agreed to disclose if his opinions changed or if he developed new ideas after reading the depositions. However, Dr. Hiyama did not later amend his opinions or report. 6 ¶9 Borowsky urged the trial court to consider that Dr. Eder testified that no one told him about Borowsky s low 8.9 H&H levels, and if they had, he would not have discharged her. She further the argued that it was Dr. Hiyama s opinion that discharge of Borowsky from SHC caused a delay that may have contributed to her injuries. Borowsky argued that it [was] axiomatic that any breach that contributed to the delay . . . would also be a contributing factor to the resulting necrosis, and [a]ssuming Dr. Eder s testimony to be true, it is clear that SCH s nurses and staff directly contributed to the delay that led to Borowsky s injuries. Thus, she asserted [a]t the very least, genuine issues of material fact remain as to how much of the delay was caused by the failure of SHC s nurses and staff to follow Dr. Eder s orders . . . [and] [s]uch fault is properly apportioned by a jury and not resolved on summary judgment by the [c]ourt. ¶10 At oral argument, the trial court noted its concern that Borowsky lacked expert testimony that the nurses actions caused or contributed to the premature discharge of Borowsky, which delayed her intestinal tissue. treatment and resulted in necrosis of her The court granted summary judgment for SHC, holding that under Orme School, there was not enough evidence for a reasonable juror to find in favor of [Borowsky] as to the issue of causation against the hospital. 7 Borowsky timely filed her notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). STANDARD OF REVIEW ¶11 We review de novo a trial court s grant of summary judgment on the basis of the record made in the trial court, applying the same standard as that used by the trial court. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App. 1990). genuine issues of In doing so, we determine whether any material fact court correctly applied the law. exist and whether the trial L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App. 1997). Summary judgment is appropriate when the evidence presents no genuine issue of material fact, and the movant is entitled to a judgment as a matter of law. Ariz. R. Civ. P. 56(c)(1); Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). A trial court must not grant summary judgment unless the facts produced in support of the claim or defense have so little probative value . . . that reasonable people could not agree with the conclusion proponent of the claim or defense. 309, 802 P.2d at 1008. the party advanced by the Orme Sch., 166 Ariz. at We review the facts in the light most favorable to against whom granted. Riley, Hoggatt & Suagee, P.C., v. English, 177 Ariz. 10, 12-13, 864 P.2d 1042, 1044-45 (1993). 8 summary judgment was DISCUSSION ¶12 On appeal, Borowsky argues that the trial court erred in granting summary judgment after it determined that there was insufficient evidence for a reasonable jury to find that SHC s nursing staff contributed to Borowsky s injuries. ¶13 We agree. Pursuant to A.R.S. § 12-563 (2003), a party suing a healthcare provider for medical malpractice must prove that the healthcare provider failed to exercise the relevant degree of care and that failure proximately caused the injury, increased the risk of harm, or deprived plaintiff of some significant chance of . . . better recovery. Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 606, 688 P.2d 605, 614 (1984); see also Evans v. Bernhard, 23 Ariz. App. 413, 415, 533 P.2d 721, 723 (App. 1975). by expert Proximate cause must ordinarily be established medical testimony unless a readily apparent to the trier of fact. causal relationship Gregg v. is Nat l Med. Health Care Servs., Inc., 145 Ariz. 51, 54, 699 P.2d 925, 928 (App. 1985). A court should not direct judgment based on lack of proximate causation when the jury can find causation based upon the most favorable portions of witnesses testimony. See Nichols v. City of Phx., 68 Ariz. 124, 139, 202 P.2d 201, 211 (1949) (quoting Dieterle v. Yellow Cab Co., 93 P.2d 171, 173 (Cal. Dist. Ct. App. 1939)). 9 ¶14 The parties do not dispute that there was a delay in diagnosing the appendectomy. injury Borowsky sustained during Nor do the parties dispute that Borowsky suffered ischemia and necrosis as result of Dr. Eder s surgery. Hiyama and her Dr. Eder testified that someone Both Dr. suffering from ischemia should be operated on as soon as possible because, as Dr. Hiyama stated, the longer [ischemia] occurs or consists and is not reversed or corrected, the higher the chance that the tissue damage that occurs will increase. ¶15 Here, the dispute is whether Dr. Hiyama s testimony that he could not say whether the nurses inaction contributed to Borowsky s further injury was sufficient Borowsky s case from going to the jury. to preclude We conclude that the testimony of Dr. Hiyama and Dr. Eder together was enough to create a genuine dispute that the nurses failure to report Borowsky s low 8.9 H&H levels to Dr. Eder caused the premature discharge from SHC, which created a delay in diagnosing Borowsky s injury, resulting in her further injury. 8 8 SHC argues that this Court cannot consider whether proximate cause was readily apparent in this case because Borowsky did not argue it below. We disagree. On appeal from summary judgment, the appellant may not advance new theories or raise new issues to secure a reversal. Lansford, 174 Ariz. at 419, 850 P.2d at 132 (refusing to consider new argument because there was no instance in the record indicating that the appellant argued the issue to the trial court); see also Sereno v. Lumbermens Mut. Cas. Co., 132 Ariz. 546, 549, 647 P.2d 1144, 1147 (1982) (holding that the trial court must have been given a 10 ¶16 Dr. Hiyama testified that Borowsky s discharge created the delay that may have contributed to the resulting injuries to Borowsky. Dr. Eder s testimony that no one told him that Borowsky s H&H levels dropped to 8.9, and that he would not have discharged her if he had been told, is evidence that the nurses possible failure to report Borowsky s H&H levels caused Dr. Eder to discharge Borowsky. nurses may Borowsky, have which While Dr. Hiyama did not say that the caused Dr. resulted in Eder to Borowsky s prematurely further discharge injury, Dr. Eder s testimony and the facts in the record were enough to create a genuine issue of material fact regarding whether the delay was caused by the nurses conduct. ¶17 SHC points the Court to Dr. Hiyama s testimony that he could not say whether the nurses did anything wrong. While Dr. Hiyama testified that he could not offer an opinion that the SHC nurses caused Borowsky s harm, he later clarified that this was because he could only speculate as to what would have occurred had Borowsky not been discharged from SHC: Q. [by Mr. Jones] Doctor, my question was are you going to offer any opinions that anything that the nurses at Scottsdale chance to rule on an issue raised before the appeals court). Borowsky s argument on appeal is the same as in the trial court. While Borowsky has not used the words readily apparent, that was the essence of her arguments below and on appeal. We will not find a waiver simply because Borowsky did not use the exact words readily apparent. 11 Healthcare did Borowsky harm? or didn t do caused Miss A. [by Dr. Hiyama] At this time given that I have not reviewed any other depositions and only the records that I ve stated that have been provided to me, the answer would be no. . . . A. Dr. Eder s refusal to authorize a gastrointestinal CAT scan as specifically requested by Miss Borowsky, cancellation of Miss Borowsky s scheduled consultation with another surgeon and ultimate discharge of Miss Borowsky from Scottsdale Healthcare created the delay that may have contributed to the resulting ischemia and necrosis of Miss Borowsky s cecum, a portion of the terminal ileum and a portion of the colon. Q. [by Mr. Bradford] And that is still your opinion, is it not, Doctor? A. It still is, yes. Q. And it is still a matter of possibility, not probability, isn t it? A. I believe that s correct. Q. There s no way for us to really know today that her ultimate course would not have been essentially the same had she stayed in Scottsdale as opposed to going a few miles north and east to the Mayo Clinic? A. Just clarification. What you re asking is would the events that transpired at Mayo Clinic have occurred at Scottsdale given that she continued her hospitalization there? Q. Yes. A. I believe, again, it would be speculation not knowing different outcomes, but I would 12 say it s issue. possible. But I would add one It is fair that Dr. Hiyama could only speculate as to facts that caused the delay and what would have happened if Borowsky had not been discharged from SHC. ¶18 Furthermore, Dr. Hiyama clarified that regardless of whether Borowsky had been discharged, delayed treatment of the ischemia would increase damage to the intestinal tissue: The issue is when you re dealing with a question of ischemia . . . the general rule of thumb is the longer it occurs or consists and is not reversed or corrected, the higher the chance that the tissue damage that occurs will increase. ¶19 could Therefore, believe to the determine most proximate favorable causation, portions of Dr. a jury Eder s testimony that he was not told about Borowsky s 8.9 H&H levels and would not have discharged her had he been told, and Dr. Hiyama s expert testimony that the delay in treatment caused undiagnosed ischemia and necrosis. 139, 202 P.2d at 211. contributed to the See Nichols, 68 Ariz. at The jury could conclude that the nurses delay in diagnosing Borowsky as having ischemia by not reporting the low H&H levels and that the delay resulted in her experiencing necrosis of her intestinal tissue. The combined testimony of Dr. Hiyama and Dr. Eder was sufficient to create a genuine issue of material fact regarding whether the nurses contributed to Borowsky s further injury. 13 CONCLUSION ¶20 court For the foregoing reasons, we conclude that the trial erred in granting Accordingly, we reverse SHC s and motion remand to for the summary trial judgment. court for further proceedings consistent with this decision. /s/ DONN G. KESSLER, Presiding Judge CONCURRING: /s/ DANIEL A. BARKER, Judge /s/ JON W. THOMPSON, Judge 14

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