Michelle Sampson v. Surgery Center ( 2021 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
MICHELLE SAMPSON, ET AL.
Plaintiff/Appellant,
v.
SURGERY CENTER OF PEORIA, LLC, ET AL.
Defendants/Appellees.
No. CV-20-0024-PR
Filed July 30, 2021
Appeal from the Superior Court in Maricopa County
No. CV2013-015707
The Honorable Hugh E. Hegyi, Judge (Retired)
The Honorable James Blomo, Judge (Retired)
AFFIRMED
Memorandum Decision of the Court of Appeals
Division One
1 CA CV-18-0113
Filed December 26, 2019
VACATED
COUNSEL:
Arthur E. Lloyd (argued), A. Evan Lloyd, Lloyd Law Group of Arizona,
P.L.L.C, Payson, Attorneys for Michelle Sampson
DeeDee Armer Holden, Michael J. Ryan (argued), Holden & Armer, P.C.,
Phoenix, Attorneys for Surgery Center of Peoria, LLC
Eileen Dennis GilBride, Jones, Skelton & Hochuli, P.L.C., Phoenix,
Attorneys for Amicus Curiae Mutual Insurance Company of Arizona
SAMPSON, ET AL. V. SURGERY CENTER OF PEORIA, LLC, ET AL.
Opinion of the Court
Peter R. Montecuollo, Shook, Hardy & Bacon, L.L.P., Kansas City, MO; and
Philip S. Goldberg, Shook, Hardy & Bacon, L.L.P., Washington, DC,
Attorneys for Amicus Curiae American Medical Association and Arizona
Medical Association
David L. Abney, Ahwatukee Legal Office, P.C. Phoenix, Attorney for
Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers
Association
____________________
JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
LOPEZ, BEENE, and MONTGOMERY joined. *
____________________
JUSTICE BOLICK, Opinion of the Court:
¶1 We hold today that a jury in a medical malpractice case may
not be left to “infer” causation without the guidance of expert testimony
where the cause of death is disputed and not obvious to an ordinary person.
BACKGROUND
¶2 Although the legal issue on which we granted review is
narrow, precise, and properly decided as a matter of law, the parties have
focused primarily on disputed factual issues that are unnecessary and
improper for us to resolve. 1 As the case was decided in the trial court on a
∗ Although Justice Andrew W. Gould (Ret.) participated in the oral
argument in this case, he retired before issuance of this opinion and did not
take part in its drafting.
1 The Surgery Center did not provide a supplemental brief after we granted
review. In a case with a dense and extensive record in which the sufficiency
of expert testimony is at issue, it is highly advisable for a party (particularly
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SAMPSON, ET AL. V. SURGERY CENTER OF PEORIA, LLC, ET AL.
Opinion of the Court
motion for summary judgment, “we view the facts and reasonable
inferences in the light most favorable to the non-prevailing party,” Rasor v.
Nw. Hosp., LLC, 243 Ariz. 160, 163 ¶ 11 (2017), which is the plaintiff here.
¶3 In March 2012, Sampson took her four-year-old son, Amaré
Burks, to the Surgery Center of Peoria, an outpatient surgery clinic, for a
scheduled tonsillectomy and adenoidectomy. The procedure is considered
routine and has an extremely low complication rate. Dr. Guido
administered the general anesthesia, and Dr. Libling performed the
procedure. Dr. Libling remained in the operating room with Amaré for
about thirty minutes after the surgery. At that point, Amaré was sitting up
and crying and was transferred to a post-operative anesthesia care unit
(PACU).
¶4 Nurse Kuchar attended Amaré in the PACU. Amaré drank
apple juice and asked for a toy but, according to his mother, appeared
sleepy and uncomfortable. After sixty-one minutes, Nurse Kuchar released
Amaré to his mother’s care. He scored eight of eight on a vitals-release test,
and his condition did not appear concerning.
¶5 Sampson took Amaré home and put him to bed. She had been
told it was typical for a patient to sleep after surgery. Approximately two
hours after Amaré’s discharge, Sampson checked on him, and he was not
breathing. Emergency personnel were unable to revive him.
¶6 Sampson brought a wrongful death action against several
defendants, including the Surgery Center and Dr. Guido. As required by
A.R.S. § 12-2603, Sampson identified Dr. Greenberg as her expert witness
to establish cause of death, proximate cause, and standard of care.
¶7 In his initial affidavit, Dr. Greenberg attested that (1) one hour
was insufficient to assess a pediatric patient for discharge and that three
hours was appropriate, especially for a child with a history of sleep apnea;
(2) the anesthesiologist fell below the standard of care by discharging
Amaré before that time and Amaré’s death could have been prevented with
longer observation in the PACU; and (3) Amaré died from being rendered
unable to breathe from the after-effects of surgery and anesthesia, as his
the party that lost in the court of appeals) to accept our invitation to further
brief the specific questions on which we granted review.
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pharyngeal tissues were swollen and obstructed his upper airway, and the
residual effects of anesthesia did not allow him to awaken to overcome the
obstruction. In his deposition, Dr. Greenberg opined that the standard of
care required between one and three hours of observation before release.
¶8 The Surgery Center and Dr. Guido filed motions for partial
summary judgment, contending that expert testimony did not establish that
their actions proximately caused Amaré’s death. At oral argument,
Sampson’s counsel argued that Dr. Greenberg’s standard-of-care testimony
was sufficient to establish causation. Pressed by the trial court to identify
the expert opinion to that effect, counsel acknowledged that ordinarily a
plaintiff must prove the causal connection through expert testimony
“unless the connection is readily apparent to the trier of fact. And that’s my
contention, that this is obvious.”
¶9 The trial court granted partial summary judgment for the
Surgery Center and Dr. Guido, finding that Dr. Greenberg’s testimony
failed to state a causal connection between the Surgery Center’s actions and
omissions and Amaré’s death, and that whether Amaré would have
survived with longer observation involved “matters committed to the
expertise of medical practitioners, and well beyond the ken of the average
juror.” The court later entered final judgment against Sampson, and she
appealed.
¶10 The court of appeals reversed as to the Surgery Center.
Sampson v. Surgery Ctr. of Peoria, LLC, No. 1 CA-CV 18-0113, 2019 WL
7187252, at *1 (Ariz. App. Dec. 26, 2019) (mem. decision). Applying Barrett
v. Harris, 207 Ariz. 374, 378 ¶ 12 (App. 2004), the court articulated the
baseline principle that “[c]ausation in a medical malpractice action must be
proved by expert testimony unless the connection between the conduct and
the injury is readily apparent.” Sampson, 2019 WL 7187252, at *2 ¶ 9. The
court concluded that “[w]hile expert testimony on causation is often
necessary, we perceive no such necessity here.” Id. at *4 ¶ 14.
Acknowledging that Dr. Greenberg’s testimony was “varying widely”
between one to three hours of observation, the court determined that “a
reasonable jury could nonetheless find that the standard of care for
observation was three hours.” Id. at *3 ¶ 13. If it did, the jury “could
properly infer that the early discharge was the probable cause of Amare’s
death.” Id.4
SAMPSON, ET AL. V. SURGERY CENTER OF PEORIA, LLC, ET AL.
Opinion of the Court
¶11 We granted review to determine whether the court of appeals
erred by holding that the jury could properly infer proximate cause under
the facts presented. 2 Whether expert testimony regarding causation is
required in a medical malpractice case is a recurring issue of statewide
importance. We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution.
DISCUSSION
¶12 “Apart from issues of statutory interpretation, which we
review de novo, we review trial court determinations of expert
qualifications for an abuse of discretion.” Rasor, 243 Ariz. at 163 ¶ 11
(quoting Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 387 ¶ 30 (2013)).
¶13 In Arizona medical malpractice cases, causation must be
established by competent expert testimony, and the narrow exception is
that a jury may infer such causation if malpractice is “readily apparent.” Id.at 166 ¶ 32; see also Seisinger v. Siebel, 220 Ariz. 85, 94 ¶ 33 (2009) (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’”) (quoting Falcher v. Saint Luke’s Hosp. Med. Ctr.,
19 Ariz. App. 247, 250 (1973)). As the court of appeals here departed from
that standard to allow a jury to determine causation based on speculation
built upon inference, we reverse its decision.
¶14 A plaintiff establishes medical malpractice by proving 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.” A.R.S. § 12-563. The second requirement is at issue here.
¶15 Regarding causation, a plaintiff must show “a natural and
continuous sequence of events stemming from the defendant’s act or
omission, unbroken by any efficient intervening cause, that produces an
injury, in whole or in part, and without which the injury would not have
2 We improvidently granted review of whether Dr. Greenberg was
qualified to establish the standard of care for Nurse Kuchar. That issue was
neither before the trial court nor the court of appeals, and we therefore
dismiss review of that question.
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occurred.” Barrett, 207 Ariz. at 378 ¶ 11. Moreover, a plaintiff must show
that causation is probable, not merely speculative. Robertson v. Sixpence Inns
of Am., Inc., 163 Ariz. 539, 546 (1990).
¶16 As medicine in general and, more specifically, advanced
medical techniques involve extensive professional training, in most
instances the applicable standard of care, and the probable consequences of
failing to meet that standard, are beyond ordinary lay knowledge.
Therefore, in a medical malpractice case, “the standard of care normally
must be established by expert medical testimony.” Seisinger, 220 Ariz.
at 94 ¶ 33. Thereafter, “[t]o establish the requisite causal connection, the
plaintiff’s expert is generally required to testify as to probable causes of the
plaintiff’s injury.” Benkendorf v. Advanced Cardiac Specialists Chartered, 228
Ariz. 528, 530 ¶ 8 (App. 2012). This Court has recognized that “the
requirement of expert testimony in a medical malpractice action is a
substantive component of the common law governing this tort action,”
Seisinger, 220 Ariz. at 95 ¶ 38, and that “failure to produce such a witness
results in judgment for the defendant,” id. at 94 ¶ 35.
¶17 Here, the plaintiff satisfied the first requirement of § 12-563
by providing a competent expert witness, Dr. Greenberg, who opined that
Surgery Center and Dr. Guido fell below the requisite standard of care.
However, he equivocated over the applicable standard, providing a range
from one hour of post-operative observation, which the Surgical Center
satisfied, to up to three hours, which it did not. More significantly, Dr.
Greenberg did not opine that insufficient observation was the probable
proximate cause of Amaré’s death. Rather, he opined that greater
observation “could have” allowed Surgery Center personnel to resuscitate
Amaré.
¶18 Acknowledging the “deficits and contraindications” in Dr.
Greenberg’s testimony, the court of appeals nonetheless concluded that if
the jury “were to agree that the standard of care was breached as to time,
then no expert evidence would be necessary to permit it to infer that a
discharge in violation of that standard was the probable cause of a death
that occurred within the time the child should have been observed under
the standard of care.” Sampson, 2019 WL 7187252, at *3–4 ¶¶ 13–14. In other
words, a jury may infer causation even where the expert could not, or
would not, state a precise standard of care nor state that the Surgery
Center’s deficiency in adhering to the standard of care was the probable
proximate cause of the death.
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Opinion of the Court
¶19 Causation by inference is far more limited than the court of
appeals recognized. The standard of care must be established by expert
medical testimony “[u]nless malpractice is grossly apparent,” Rasor, 243
Ariz. at 163 ¶ 12, and expert causation testimony is necessary unless
causation is “readily apparent to the jury on the facts,” id. at 166 ¶ 32. In a
case where the standard of care or the cause of death is disputed on a matter
requiring medical knowledge to resolve, it is difficult, if not impossible, to
imagine a situation where lay jurors, untrained in medicine or medical
procedure, could properly determine liability absent expert guidance. See,
e.g., W. Bonded Prods. v. Indus. Comm’n of Ariz., 132 Ariz. 526, 527 (App. 1982)
(“A lay person does not possess the knowledge necessary to make an
accurate diagnosis or to describe a condition’s etiology. Even a logical
interpretation of events surrounding the . . . incident . . . , when made by a
layman, is no more than speculation.”).
¶20 A case comparison is instructive. Morrison v. Acton, which
involved a dentist who left a piece of metal imbedded in a patient’s jawbone
that subsequently resulted in severe injury, is a classic example of a case
where a jury could properly infer that the dentist’s negligence was the
proximate cause. 68 Ariz. 27, 33 (1948). By contrast, Spielman v. Industrial
Commission of Arizona involved an injury related to multiple surgeries, in
which “[l]ay logic alone” could not determine the relationship between the
surgeries and injury. 163 Ariz. 493, 497 (App. 1989). When the expert failed
to commit to a causation opinion, the court held that the proper result was
dismissal. Id. at 496–97.
¶21 In this case, expert testimony establishing causation was
essential. Disagreement existed even over the cause of Amaré’s death.
Whereas the autopsy report stated that Amaré died from a “disseminated
Strep Group A” infection, Dr. Greenberg opined he died from a “swollen
and obstructed upper airway” combined with his inability “to breathe from
the after-effects of surgery and anesthesia.” Given that even the medical
experts did not agree on the cause of death, it is unrealistic to conclude, as
the court of appeals did, that a jury “could properly infer that the early
discharge was the probable cause of Amare’s death.” Sampson, 2019 WL
7187252, at *3 ¶ 13.
¶22 As the trial court observed, even if Dr. Greenberg’s testimony
established that three hours of observation constituted the standard of care,
“lay jurors are not competent to determine that Amare’ would have
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Opinion of the Court
exhibited symptoms of distress during those three hours, what those
symptoms would have been, what a reasonable schedule of observation in
such a center would have been, whether the Surgery Center would or
should have noticed Amare’s distress had it observed that schedule, and, if
it had noted distress, what could have been done in a timely manner to save
Amare’.” As a result, Sampson did not establish that the failure to observe
Amaré for a longer period caused his death by starting a natural and
continuous sequence of events, unbroken by any intervening causes. See
Barrett, 207 Ariz. at 378 ¶ 11.
¶23 Thus, even if Dr. Greenberg’s testimony regarding causation
is generously read to require a three-hour observation period, his failure to
connect the dots between the premature discharge and Amaré’s death
would leave the jury to infer that Surgery Center’s failure to observe was
the proximate cause. “Such causation must be shown to be [p]robable and
not merely [p]ossible, and generally expert medical testimony that a
subsequent illness or disease ‘could’ or ‘may’ have been the cause of the
injury is insufficient.” Kreisman v. Thomas, 12 Ariz. App. 215, 218 (1970);
accord Robertson, 163 Ariz. at 546 (recognizing that causation cannot be left
to jury speculation). Dr. Greenberg’s assertion that a longer observation
period could have prevented Amaré’s death is therefore insufficient as a
matter of law to prove causation. See, e.g., Gregg v. Nat’l Med. Health Care
Servs., Inc., 145 Ariz. 51, 54 (App. 1985) (holding that plaintiff must prove a
causal relationship between defendant’s actions or omissions and the
death).
¶24 For the foregoing reasons, the trial court did not err by
granting partial summary judgment.
CONCLUSION
¶25 We affirm the trial court’s ruling and vacate the court of
appeals’ decision.
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