Brown v. John C Lincoln

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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 DIVISION ONE FILED: 05/15/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) Plaintiff/Appellant, ) ) v. ) ) JOHN C. LINCOLN HEATH NETWORK, an ) Arizona non-profit corporation, ) ) Defendant/Appellee. _______________________________________ ) BARBARA BARNA BROWN, 1 CA-CV 11-0230 DEPARTMENT C MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2009-019514 The Honorable Linda H. Miles, Judge AFFIRMED IN PART; REVERSED AND REMANDED IN PART Barbara Barna Brown, In Propria Persona Phoenix Olson, Jantsch & Bakker, PA By Andrew E. Rosenzweig and Dina M. Anagnopoulos Attorneys for Defendant/Appellee Phoenix N O R R I S, Judge ¶1 Barbara court s orders Barna Brown granting timely summary appeals judgment the in superior favor of Defendant/Appellee John C. Lincoln Health Network ( JCL ) and denying her new trial motion. As we explain, the superior court properly dismissed Brown s medical malpractice claims grounded on lack of informed consent and inadequate patient care. But, the superior court should not have dismissed Brown s lack of consent -- that is, medical battery -- claim. Thus, we affirm in part, reverse in part, and remand for further proceedings on Brown s lack of consent claim. FACTS AND PROCEDURAL BACKGROUND ¶2 On June 12, 2007, Brown s mother died while in the care of one of JCL s hospitals. On June 11, 2009, Brown sued JCL alleging relating medical malpractice to a feeding tube procedure it performed on her mother. ¶3 opinion Brown subsequently disclosed the preliminary expert affidavit of her mother s primary care physician, outlining the ways in which JCL and its staff had acted in violation of the standard of care and the manner in which the negl[i]gent acts caused her mother s death. At a pretrial conference, however, Brown advised the court she had decided not to rely on the physician as an expert witness at trial. In response, the superior court informed Brown, [i]f you don t disclose a standard of care expert who provides an[] opinion that there has been some problem with respect to the care of your mother, then you don t have a case, and ordered deadlines for disclosing expert witnesses. 2 ¶4 On July 30, 2010 -- the date the superior court had ordered Brown to file her final expert witness disclosure -Brown asked the court to, first, extend her time for disclosure, second, appoint an expert under Arizona Rule of Evidence 706 with the parties provisionally witnesses. sharing rely on the cost, JCL s and employees third, as allow adverse her to expert JCL objected to her requests and moved for summary judgment, arguing that because the primary care physician was not a qualified expert and JCL s employees would not testify they had acted negligently, Brown lacked any expert testimony and, thus, had failed to prove a prima facie case JCL breached the applicable standard of care and caused Brown s damages. After hearing argument on the parties motions (the summary judgment hearing ), the superior court denied Brown s requests, and granted JCL s motion for summary judgment. ¶5 Brown then moved for a new trial arguing, as relevant here, the court improperly found an expert was necessary and should have appointed an expert. denied the new trial motion. 3 The superior court summarily DISCUSSION I. Summary Judgment A. Expert Testimony: Lack of Consent 1 ¶6 Brown argues the superior court should not have granted JCL s motion for summary judgment when she did not have a retained testifying medical expert, because no expert witness is required for an intentional tort, including battery. On the narrow issue of Brown s lack of consent claim, we agree. ¶7 As our supreme court has explained, claims involving lack of consent, i.e., the doctor s failure to operate within the limits of the patient s consent, may be brought as battery actions. In contrast, true informed consent claims, i.e., those 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, 70 P.3d 435, 439 (2003). informed consent, claims Although negligence, or lack of require proof by battery, or lack of consent, claims do not. expert testimony, See id. at 309, ¶ 10, 70 P.3d at 438. ¶8 Here, Brown argued a variety of claims, including lack of consent, lack of informed consent, and negligence in the care 1 We review de novo a grant of viewing the evidence and reasonable inferences favorable to the party opposing the motion. 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 omitted). 4 summary judgment, in the light most Andrews v. Blake, (2003) (citation of the feeding tube. on Brown s responded lack to of and JCL s motion for summary judgment focused informed addressed consent both claim. lack of Brown, consent, however, (which requires no expert witness) and lack of informed consent. As Brown argued in her Statement of Facts in response to JCL s motion for summary judgment, [Brown s] mother and [Brown] had . . . declined the [feeding tube] . . . [and Brown] was . . . subject[ed] material to subsequent omissions informed consent. leading duress, to lack misrepresentations of consent and lack and of See Duncan, 205 Ariz. at 311, ¶ 20, 70 P.3d at 440 ( [I]f a patient s consent is obtained by a health care provider s fraud or misrepresentation, a cause of action for battery is appropriate. ). ¶9 We acknowledge that at the summary judgment hearing, despite the best efforts of the superior court to clarify the claims Brown intended to pursue, Brown described her lack of consent claim imprecisely. Nevertheless, in responding to JCL s summary judgment motion, Brown clearly advised the court she wished to pursue that claim and was entitled to do so without an expert. Because the record fails to show Brown had abandoned her lack of consent claim that, as a matter of law, she was entitled to pursue without an expert, the superior court should 5 not have dismissed that claim on summary judgment. See Duncan, 205 Ariz. at 310, ¶ 13, 70 P.3d at 439. B. Expert Testimony: Negligence Claims ¶10 Brown s other claims -- lack of informed consent and negligence in the care of the feeding tube - however, required expert testimony. See id.; Barrett, 207 Ariz. at 378, ¶ 12, 86 P.3d at 958. ¶11 she Brown argues no expert testimony was required because presented evidence JCL violated federal and state regulations regarding informed consent and the use of feeding tubes, and disagree. its own Assuming policies regarding without deciding informed the consent. materials We Brown presented constituted some evidence of the applicable standard of care, see Peacock v. Samaritan Health Serv., 159 Ariz. 123, 127, 765 P.2d 525, 529 (App. 1988) ( the existence of a hospital protocol is nevertheless some evidence of the standard of care ; this analysis does not compel the conclusion that a policy adopted by a health care provider will always equate with the standard of care ), to prove a prima facie case of medical negligence on either claim, Brown was nevertheless required to prove the causal connection between [the] act[s] or omission[s] and the ultimate injury through expert medical testimony, unless the connection [was] readily apparent to the trier of fact. 6 Barrett, 207 Ariz. at 378, ¶ 12, 86 P.3d at 958. before us demonstrates the causal connection The record between the alleged acts and the ultimate injury was not readily apparent. For example, Brown acknowledged her mother was diabetic with various [co-morbidities]. Thus, because Brown did not present any admissible expert testimony on causation, the superior court properly dismissed these claims. ¶12 not Brown have nevertheless granted summary argues the judgment superior because court she should presented substantial evidence in defense of summary judgment, including a comprehensive preliminary expert affidavit. ¶13 We disagree. At a pretrial conference, and again at the summary judgment hearing, Brown advised the court she had decided not to rely on her mother s primary care physician to testify as a medical expert at trial. Moreover, because the physician s affidavit was hearsay and not otherwise admissible, Brown was not entitled judgment. to rely on his affidavit in opposing summary See Ariz. R. Civ. P. 56(e) ( Supporting and opposing affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence. ); see also Ryan v. San Francisco Peaks Trucking Co., Inc., 228 Ariz. 42, 47, ¶ 17, 50, ¶ 30, 262 P.3d 863, 868, 871 (App. 2011) (defendant permitted to rely on plaintiff s preliminary expert 7 opinion affidavit to establish prima facie proof of fault by nonparty because affidavit was admissible as an admission by a party-opponent ). ¶14 Brown also argues her disclosure of adverse expert witnesses was sufficient to survive summary judgment. Although a plaintiff may, in some cases, rely on the defendant s own testimony, see Potter v. H. Kern Wisner, M.D., P.C., 170 Ariz. 331, 339, 823 P.2d 1339, 1347 (App. 1991), Brown s speculation as to what JCL s employees would say was incapable of creating a triable issue of fact. C. Court-Appointed Expert ¶15 Brown also argues the superior court should not have granted JCL s motion for summary judgment simultaneously with its denial of her motion for a court-appointed expert, because it should have waited to determine whether the parties could agree to appoint an expert under Arizona ( Rule ) 706 before dismissing the case. Rule of Evidence In pertinent part, Rule 706(c) provides appointment of an expert is subject to the availability of funds or the agreement of the parties concerning compensation. not have funds Here, the superior court made it clear it did available to assist Brown with her claim. Further, although the court left open the possibility of the parties stipulating to a court-appointed expert, Brown agreed 8 she had no money to pay for an expert, period. Not 50% of an expert; not 25% of an expert; zero. JCL s counsel argued Rule 706 did not contemplate stipulation to an expert, and gave no indication JCL would appointed expert. be willing to share the cost of an Thus, the court did not abuse its discretion in denying Brown s motion for a court-appointed expert at the same time it granted JCL s motion for summary judgment. See State v. Chaney, 141 Ariz. 295, 308, 686 P.2d 1265, 1278 (1984) ( Whether an expert is to be appointed is within the discretion of the trial judge. ). II. New Trial Motion ¶16 Finally, Brown argues the superior court abused its discretion in denying her motion for a new trial in consideration of the above. We interpret this to incorporate the challenging arguments Brown made in the court s summary judgment order and, for the reasons discussed above, hold the court did not abuse its discretion in denying Brown s new trial motion. Englert v. Carondelet Health Network, 199 Ariz. 21, 25, ¶ 5, P.3d 13 763, 767 (App. 2000) (appellate court ruling on new trial motion for abuse of discretion). 9 reviews CONCLUSION ¶17 For the foregoing reasons, we reverse the superior court s dismissal of Brown s lack of consent claim on summary judgment and remand to the superior proceedings on that and only that claim. 2 court for further We affirm the superior court s grant of summary judgment on the rest of Brown s claims. ____/s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: ____/s/ PETER B. SWANN, Judge ____/s/ DONN KESSLER, Judge 2 Because we are remanding for further proceedings, we do not address Brown s argument regarding the superior court s protective order, which was issued over a month after Brown s expert disclosure deadline and temporarily prevented the parties from taking depositions. 10

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