Awsienko v. Hindosh

Annotate this Case

Download PDF

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 HALINA AWSIENKO, surviving spouse; NINA AWSIENKO, surviving child; and OLEG AWSIENKO, surviving child, ) ) ) ) ) Plaintiffs/Appellants, ) ) v. ) ) RAAD HINDOSH, MD, and JANE DOE ) HINDOSH, husband and wife, ) ) Defendants/Appellees. ) ) 1 CA-CV 11-0335 DIVISION ONE FILED: 02/21/2012 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2008-024190 The Honorable Edward O. Burke, Judge AFFIRMED Antonio M. Rosacci Attorney for Plaintiffs/Appellants Phoenix Jones, Skelton, and Hochuli, P.L.C. By Eileen Dennis Gilbride Cristina M. Chait Attorneys for Defendants/Appellees Phoenix H A L L, Judge ¶1 Halina Awsienko, Nino Awsienko, and Oleg Awsienko (the Awsienkos) appeal from the trial court s ruling granting summary judgment in favor of Raad Hindosh, M.D., medical malpractice/wrongful death. on their claim of For the reasons discussed below, we affirm the trial court s order. FACTUAL AND PROCEDURAL BACKGROUND ¶2 The following relevant facts are not disputed. January 14, 2006, to Tempe presented pain. At conditions gout, Filip St. that diabetes, Luke s time, included: Awsienko, Hospital Filip s ninety-year-old complaining known hypertension, chronic a of preexisting congestive renal On failure, heart chest medical failure, morbid hyperlipidemia, asthma, and atrial fibrillation. man, obesity, On January 16, 2006, Filip suffered a respiratory episode in which Dr. Hindosh and other medical staff intervened. transferred Filip to the Intensive intubated by another physician. transferred to Mesa Later that day, Dr. Hindosh Select Care Unit and Filip was Two weeks later, Filip was Specialty Hospital (Mesa Select). The attending pulmonary physician at Mesa Select evaluated Filip and determined that his age and condition prevented him from weaning off of ventilation and determined that his prognosis for recovery was poor. During the months of February, March, and April, Filip was transferred between four other hospitals and submitted to numerous tests and procedures. 2 Doctors discovered that he was suffering from encephaolopathy due to anoxic brain damage and metastatic cancer that originated from his pancreas. Filip s attending physicians determined that they would not attempt chemotherapy or radiation therapy because of his weak condition and one physician opined that his chance of survival was less than one percent. On May 11, 2006, Filip died at Banner Desert Medical Center. ¶3 An autopsy was performed, and Michael Iliescu, M.D., concluded that Filip s death was caused by cardiac arrest due to sepsis and hypovolemia. Dr. Illiescu determined possible contributory conditions included: that other disseminated intra- abdominal adenocarcinoma of probable pancreatic origin, chronic obstructive disease, pulmonary atherosclerotic encephalopathy, metabolic disease, metabolic cardiovascular toxicity, dioxin toxicity, chronic congestive heart failure, respiratory failure, acute renal failure, bronchopneumonia, and anasarca. ¶4 On May 6, 2008, the Awsienkos filed a claim of wrongful death/medical malpractice against three hospitals and six doctors, including Dr. Hindosh. Dr. Hindosh failed to act in a The complaint alleged that reasonable manner when he attended to Filip on January 16, 2006. ¶5 In his deposition, the Awsienkos expert, James Lineback, M.D., testified that, at approximately 10:10 a.m. on January 16, 2006, Dr. Hindosh compound[ed] Filip s respiratory 3 difficulties by suppressant, when breathing. giving Filip him was morphine, already a respiratory experiencing labored In addition, Dr. Lineback testified that Dr. Hindosh violated the standard of care by failing to ventilate Filip, either invasively or non-invasively, before 12:30 p.m. Dr. Lineback also opined that Dr. Hindosh s conduct on January 16, 2006 set [Filip] for the cardiac arrest and concluded that Filip would not have had a cardiac arrest on May 11, 2006 if Dr. Hindosh had not given Filip morphine and ventilated him more quickly on January 16, 2006. ¶6 On December 7, 2010, Dr. Hindosh filed a motion for summary judgment arguing that: (1) Dr. Lineback is not qualified to offer standard of care opinions against him and therefore the Awsienkos wrongful death claim lacks the requisite expert testimony, and (2) even assuming that Dr. Lineback qualifies as an expert for purposes of this case, his deposition testimony does not demonstrate the required proximate causation and therefore the Awsienkos failed to present a prima facie case of medical negligence. ¶7 On February 24, 2011, in a twenty-one page detailed minute entry, the trial court granted Dr. Hindosh s motion for summary judgment. On March 28, 2011, the trial court reduced its February 24, 2011 minute entry ruling to a signed judgment. 4 The Awsienkos timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(B) (2003). DISCUSSION ¶8 On appeal, the Awsienkos contend that the trial court erred by granting summary judgment in favor of Dr. Hindosh. The Awsienkos argue that Dr. Lineback was qualified to testify as an expert witness against Dr. Hindosh and assert that they set forth a prima facie case of medical malpractice/wrongful death. ¶9 A court shall grant summary judgment when there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law. 56(c). Summary produced in judgment support of should the claim be or Ariz. R. Civ. P. granted, if the facts defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). If the evidence would allow a jury to resolve a material issue in favor of either party, summary judgment is improper. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App. 1990). ¶10 In reviewing a summary judgment, our task is to determine de novo whether any genuine issues of material fact exist and whether the trial court incorrectly applied the law. 5 L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App. 1997). the light most favorable to the We review the facts in party against whom summary judgment was entered, Riley, Hoggatt & Suagee v. English, P.C., 177 Ariz. 10, 12-13, 864 P.2d 1042, 1044-45 (1993), and will affirm the entry of summary judgment if it is correct for any reason. Hawkins v. State, 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (App. 1995). ¶11 jury Causation is generally a question of fact for the unless reasonable persons could plaintiff had proved this element. not conclude that a Salica v. Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 419, ¶ 16, 231 P.3d 946, 951 (App. 2010). To establish a prima facie case of medical malpractice, the plaintiff must present expert medical testimony that the defendant s negligence was the proximate cause of harm, unless a causal relationship is readily apparent to the trier of fact. Gregg v. Nat l Med. Health Care Servs., Inc., 145 Ariz. 51, 54, 699 P.2d 925, 928 (App. 1985). ¶12 Assuming, without deciding, that Dr. Lineback qualified as an expert witness to testify regarding standard of care and causation in this case, the trial court nonetheless found that no reasonable jury could conclude what Dr. Hindosh did or failed to do on January 16, 2006, proximately caused Mr. Awsienko s May 11, 2006, death. We agree. 6 ¶13 As noted by the Awsienkos, and the trial court, Dr. Lineback opined in his deposition that Dr. Hindosh violated the standard of care on January 16, 2006 by administering morphine to Filip and failing to ventilate him sooner. also stated his opinion that Filip would not Dr. Lineback have suffered cardiac arrest on May 11, 2006 had Dr. Hindosh s treatment on January 16, 2006 not fallen below the standard of care. ¶14 As noted by the trial court, however, [t]here are several problems with Dr. Lineback s testimony. First, in reaching his medical conclusions, Dr. Lineback did not review and consider all of the relevant information. Dr. Lineback testified that he was presented with an overwhelm[ing] number of medical records and that reviewing all the information would have been counterproductive. Instead, he only glanced at Filip s medical records predating 2006 and considered only the information relating to Filip s chest and lungs to reach his opinion. had He was either unaware or did not consider that Filip very disease, poorly and controlled disseminated diabetes, cancer to renal failure, kidney multiple major organs. Furthermore, Dr. Lineback ultimately agreed with Dr. Iliescu s autopsy report, stating that the cause of Filip s cardiac arrhythmia on May 11, 2006 was probably multifactorial and that sepsis was most likely the ultimate cause of his death. Dr. Lineback declined to opine 7 regarding the source of the sepsis and acknowledged renal, or cancer-related. err by finding no that it could have been pulmonary, Therefore, the trial court did not reasonable jury could conclude that Dr. Hindosh s care of Filip on January 16, 2006 proximately caused his death on May 11, 2006. CONCLUSION ¶15 For the foregoing reasons, we affirm the trial court s summary judgment. /s/ PHILIP HALL, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge _/s/_____________________________ MARGARET H. DOWNIE, Judge 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.