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Torts—Medical Malpractice—Expert Qualification/Additional Time to Designate Expert/Discovery

Posted by Ted A. Schmidt | Jun 08, 2016 | 0 Comments

Rasor v. Northwest Hospital,  __Ariz. Adv. Rep. __, No.2 CA-CV 2015-0065 (App. Div. II, J. Espinosa) (Trial Judge Leslie Miller)

STANDARD OF CARE EXPERT MUST SPEND MAJORITY PRACTICE IN SAME FIELD AS DEFENDANT PREVIOUS YEAR/DISCOVERY OF PRIOR SIMILAR INCIDENTS ALLOWED

In this medical malpractice action the defendant was granted summary judgment on the basis that plaintiffs' single expert offered to address standard of care, causation and damages was not qualified to establish the standard of care.  The trial court further denied plaintiffs' motion for additional time to find a qualified expert. The Arizona Court of Appeals affirmed the granting of summary judgment but reversed the denial of plaintiff's motion for additional time.

ARS § 12-2604(A) requires a standard of care expert in a medical negligence case have spent the majority of his or her practice in the same specialty as the defendant in the year preceding the occurrence giving rise to the lawsuit.  Here the plaintiff claimed Intensive Care Nurses negligently allowed him to get a decubitus ulcer. Here the nurses were either ICU specialists or generalists and plaintiffs' expert was neither in the year preceding the occurrence. Plaintiff's expert was a wound care specialist and not an ICU nurse.  Therefore plaintiff's expert did not meet the statutory requirement and summary judgment would be appropriate except that plaintiff should have been given more time to find a qualified expert.

Here the trial court had preliminary ruled it would accept the wound care specialist as qualified to testify on standard of care. Following the defendants' motion for summary judgment the trial court reversed itself. Under these circumstances it was inappropriate to deny plaintiff more time to find a qualified expert.

The trial court is justified in denying plaintiff's request for a Rule 30(b)(6) deposition at the outset of the case before any other discovery has been done and before there has been a scheduling conference and order.

Finally, the trial court properly denied defendants' motion for protective order seeking to block plaintiffs' request for records of other patients with decubitus ulcers over last 4 years. “In so doing, we  conclude the medical records the [plaintiff] sought were reasonably calculated to lead to the discovery of admissible evidence that the ICU nurses who had treated [plaintiff] had a habit or routine practice of failing to follow ICU re-positioning requirements. See Ariz. R. Civ. P. 26(b)(1)”

[Editor's Note:  You have to question how this final discovery ruling would have been decided under the amended rule which eliminates the “reasonably calculated” language and inserts a “proportionality” requirement.]

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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