ANTOINETTE WINDHURST v. ARIZONA DEPARTMENT OF CORRECTIONS ( 2021 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
ANTOINETTE WINDHURST, A SINGLE/WIDOWED WOMAN,
ON BEHALF OF HERSELF, AND AS PERSONAL REPRESENTATIVE OF
THE ESTATE OF HER DECEASED HUSBAND, DAVID WINDHURST,
Plaintiff/Appellant,
v.
ARIZONA DEPARTMENT OF CORRECTIONS, A GOVERNMENTAL ENTITY;
CHARLES RYAN, IN HIS INDIVIDUAL CAPACITY AS THE DIRECTOR OF ARIZONA
DEPARTMENT OF CORRECTIONS, A GOVERNMENTAL ENTITY; STATE OF
ARIZONA, A GOVERNMENTAL ENTITY; CORIZON HEALTH, INC., A BUSINESS
DOMICILED IN ARIZONA,
Defendants/Appellees.
No. 2 CA-CV 2020-0162
Filed November 2, 2021
Appeal from the Superior Court in Pima County
No. C20175978
The Honorable Brenden J. Griffin, Judge
VACATED AND REMANDED
COUNSEL
Mesch Clark Rothschild, Tucson
By Nathan S. Rothschild and Bernardo Velasco
and
Crawford Law PLLC, Tucson
By Michael J. Crawford
Counsel for Plaintiff/Appellant
Qunitairos, Prieto, Wood & Boyer P.A., Scottsdale
By Rita J. Bustos, Anthony Fernandez, Dustin Christner, and Alyssa R. Illsley
Counsel for Defendants/Appellees
WINDHURST v. ARIZ. DEP’T OF CORRS.
Opinion of the Court
OPINION
Chief Judge Vásquez authored the opinion of the Court, in which Judge
Brearcliffe and Judge Eckerstrom concurred.
V Á S Q U E Z, Chief Judge:
¶1 Antoinette Windhurst, individually and as the personal
representative of her deceased husband David Windhurst, appeals from the
trial court’s partial grant of summary judgment in favor of appellees,
Arizona Department of Corrections, Charles Ryan, the State of Arizona, and
Corizon Health, Inc. (collectively, “Corizon”). On appeal, Windhurst
argues the court erred by applying a heightened standard for her medical
expert opinions and failed to view the evidence in the light most favorable
to her in granting Corizon summary judgment as to her medical negligence
claim. For the reasons stated below, we vacate and remand for further
proceedings.
Factual and Procedural Background
¶2 We view the facts and reasonable inferences therefrom in the
light most favorable to Windhurst, the party opposing the motion for
summary judgment. Braillard v. Maricopa County, 224 Ariz. 481, n.11 (App.
2010). In December 2015, David Windhurst was incarcerated at the
Florence state prison. He was paraplegic and had numerous chronic
medical conditions, including diabetes mellitus, hypertension, obesity,
kidney disease, and wounds to his lower back and buttocks. When he was
first incarcerated, his conditions were stable. But because of his conditions,
he was housed in the prison’s infirmary, where his health care was
provided by the Department of Corrections through its contractor, Corizon.
¶3 In February 2016, Mr. Windhurst was transferred to a hospital
in a state of septic shock and remained there for over a month. Upon his
release from the hospital, he was transferred to the Arizona State Prison
Complex in Tucson, where he was housed in the infirmary under Corizon’s
care.
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WINDHURST v. ARIZ. DEP’T OF CORRS.
Opinion of the Court
¶4 In November 2016, Mr. Windhurst was again admitted to the
hospital with septic shock. On December 25, he died in the hospital of
infectious complications of diabetes mellitus.
¶5 Antoinette Windhurst filed a wrongful death action against
Corizon, the Arizona Department of Corrections and its director Charles
Ryan, and the State of Arizona, claiming medical malpractice and
entitlement to relief under the Adult Protective Service Act, A.R.S. §§ 46-
451 to 46-461. She alleged that the defendants—Corizon as an institution
and its medical personnel individually—through various failures, had
“engaged in systematic repetitive negligent care” in treating her husband.
¶6 In support of her claims, Windhurst provided evidence
including Mr. Windhurst’s medical records and deposition testimony and
reports from Dr. Zachary Rosner, Chief of Medicine for Correctional Health
Services in New York City; Nurse Practitioner Tara Hood, who had worked
as a nurse practitioner in a Connecticut correctional institute for ten years;
and Registered Nurse Denise Panosky, who had fourteen years’ experience
as a professor “teaching students and nurses about practicing in a
correctional setting.” Each provided an expert opinion that Corizon and
various members of its staff had contributed to Mr. Windhurst’s death due
to their breaches of the standard of care or “lack of physician staffing,
oversight, inexperience, and negligence.”
¶7 Corizon moved for summary judgment, contending, among
other things, that there was “no evidence that [it had] violated the standard
of care [or] caused [Mr. Windhurst’s] death.” In particular, Corizon argued
that Windhurst had “failed to provide standard-of-care opinions against
specific providers.” It maintained that Windhurst’s expert doctor,
Dr. Rosner, had only “broadly allege[d that] ‘Clinicians’ fell below the
standard of care” and “fail[ed] to name a single medical doctor that fell
below the standard of care, when he fell below the standard of care and
how it caused injury to Mr. Windhurst.”
¶8 Likewise, although Corizon acknowledged that Windhurst’s
registered nurse expert, Denise Panosky, had stated that “RN-level
caregivers breached the standard of care for various reasons,” it argued that
Panosky’s testimony had not proved that “negligence by any nurse caused
actual harm to Mr. Windhurst.” Corizon further maintained that Panosky’s
and Hood’s opinions were insufficient to establish causation based on their
respective professional positions and their own statements.
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WINDHURST v. ARIZ. DEP’T OF CORRS.
Opinion of the Court
¶9 The trial court granted Corizon partial summary judgment,
including summary judgment on the medical negligence claim.1 The court
stated that as to Windhurst’s medical negligence claim, although it had
“spent time trying to connect the dots,” it “d[id not] see the medical expert
testimony that links everything up.” The court invited Windhurst to file a
motion for reconsideration to point out evidence establishing that
particular providers or categories of providers had breached standards of
care and that those breaches had caused Mr. Windhurst’s death.
¶10 Although Windhurst filed a motion for reconsideration, the
trial court denied it, ruling that the motion still failed to “‘connect the dots’
to make a prima facie showing on the statutory elements for medical
malpractice.” The court stated that Windhurst had failed to “specifically
identify Corizon’s individual health-care-provider employees and agents,
and with corresponding expert testimony, explain how those employees
and agents fell below the applicable standard of care, and with similar
expert testimony explain how such failures were a cause of injury.” It noted
that “most of [Windhurst’s] malpractice allegations are against Corizon as
an entity or as to it[s] clinicians generally, not against specified individual
health-care providers.” Although the court acknowledged that Windhurst
had “sprinkle[d] some allegations against specific individuals,” it
concluded that those allegations were “so intertwined with the general
allegations that it is unclear whether [Windhurst] has the requisite
corresponding expert testimony to make a prima facie showing that those
individuals failed to meet the applicable standard of care, never mind that
such failure was also a proximate cause of injury.”
¶11 The trial court’s partial summary judgment was made final
pursuant to Rule 54(b), Ariz. R. Civ. P., on Windhurst’s medical negligence
and negligence per se claims. This appeal followed. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
1Although Windhurst’s notice of appeal refers to a negligence per se
claim, as to which the trial court also granted summary judgment, her
opening brief only challenges the grant of partial summary judgment on
her medical negligence claim. Accordingly, any argument relating to her
negligence per se claim is waived, and we will not address it. See Ariz. R.
Civ. App. P. 13(a)(6)-(7); Nelson v. Rice, 198 Ariz. 563, n.3 (App. 2000)
(argument not raised in opening brief waived).
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WINDHURST v. ARIZ. DEP’T OF CORRS.
Opinion of the Court
Discussion
¶12 Windhurst argues the trial court erred in granting partial
summary judgment on her medical negligence claim because she provided
sufficient evidence by qualified medical experts, establishing the necessary
elements as required by Arizona law. She maintains the court failed to view
the evidence in the light most favorable to her, as it was required to do. She
contends that the court, in part because it failed to draw reasonable
inferences in her favor, disregarded her experts’ opinions about the relevant
standards of care and breaches by Corizon as an institution; breaches by
individual doctors, nurse practitioners, and registered nurses employed by
Corizon; and “breaches by omission” by “entire classes of providers.”
Finally, she argues that although she made the required showing that the
breaches caused Mr. Windhurst’s death, the court erroneously concluded
that she had failed to show causation because she had not shown how the
breaches caused injury.
¶13 We review both a grant of summary judgment and whether
the trial court erred in applying the law de novo. Equihua v. Carondelet
Health Network, 235 Ariz. 504, ¶ 5 (App. 2014). Summary judgment is
appropriate when “there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law,” Ariz. R. Civ.
P. 56(a), particularly “when a plaintiff fails to establish a prima facie case.”
Gorney v. Meaney, 214 Ariz. 226, ¶ 17 (App. 2007).
¶14 “In medical malpractice actions, as in all negligence actions,
the plaintiff must prove the existence of a duty, a breach of that duty,
causation, and damages.” Seisinger v. Siebel, 220 Ariz. 85, ¶ 32 (2009). These
common law elements are partially codified under A.R.S. § 12-563, which
requires a plaintiff to prove that a health care provider fell below the
applicable standard of care by “fail[ing] 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 that “[s]uch failure was a proximate cause of
the injury.” See Seisinger, 220 Ariz. 85, ¶ 39. A licensed health care provider
can be a corporation or institution. A.R.S. § 12-561(1)(a).
¶15 Expert medical testimony is generally necessary to establish
the applicable standard of care in a medical negligence case. Seisinger, 220
Ariz. 85, ¶ 33. Experts testifying to the standards of care of medical
professionals must satisfy both the requirements of Rule 702, Ariz. R. Evid.,
and the “heightened” requirements of A.R.S. § 12-2604. Seisinger, 220 Ariz.
85, ¶¶ 39-40. As relevant here, § 12-2604(A)(1) provides that an expert must
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WINDHURST v. ARIZ. DEP’T OF CORRS.
Opinion of the Court
be “licensed as a health professional in this state or another state” and “[i]f
the party against whom . . . the testimony is offered is or claims to be a
specialist, specializes at the time of the occurrence that is the basis for the
action in the same specialty or claimed specialty as th[at] party.” The
statute also provides that “[d]uring the year immediately preceding the
occurrence giving rise to the lawsuit,” the majority of the expert’s
professional time must have been spent in active clinical practice in that
same profession or specialty, or as an instructor for that same profession or
specialty. § 12-2604(A)(2). “If the defendant is a health care institution that
employs a health professional against whom or on whose behalf the
testimony is offered,” the requirements in § 12-2604(A) apply when the
expert testifies to the standard of care of such an employee. § 12-2604(B).
¶16 A health care institution, however, also has a standard of care
independent from the medical professionals it employs. See Thompson v.
Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 604 (1984) (hospitals and physicians
have distinct standards of care). Section 12-2604(A) contains no explicit
provision regarding who may testify regarding the institution’s
independent standard of care. And provisions within § 12-2604(A)(1)-(3)
make little sense when applied to an institution itself, as an institution
would not, for example, directly practice medicine, “claim[] to be a
specialist,” or become board certified. Thus, the only requirement § 12-
2604(A) imposes on experts who testify about an institutional standard of
care in a medical malpractice case is that the expert be “licensed as a health
professional in this state or another state.” However, the expert must still
also satisfy Rule 702, which requires that the expert have “specialized
knowledge [that] will help the trier of fact to understand the evidence or to
determine a fact in issue.” The parties and the trial court seem to agree that
the specialized knowledge required in this case was medical care in the area
of correctional medicine.
¶17 Similarly, causation must be proved through “expert medical
testimony, unless the [causal] connection is readily apparent to the trier of
fact.” Barrett v. Harris, 207 Ariz. 374, ¶ 12 (App. 2004). However, unlike
experts testifying to the standards of care for medical professionals,
causation experts need only meet the requirements of Rule 702, as stated
above. See Rasor v. Nw. Hosp. LLC, 244 Ariz. 423, ¶ 18 (App. 2018); see also
Lohmeier v. Hammer, 214 Ariz. 57, ¶ 28 (App. 2006) (“[I]t is not necessary that
an expert witness be a medical doctor in order to offer testimony regarding
the causation of physical injuries so long as . . . the expert has specialized
knowledge that will assist the jury in its resolution of that issue.”).
“Causation is generally a question of fact for the jury unless reasonable
persons could not conclude that a plaintiff had proved this element.”
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WINDHURST v. ARIZ. DEP’T OF CORRS.
Opinion of the Court
Barrett, 207 Ariz. 374, ¶ 12. A plaintiff typically establishes causation by
presenting evidence showing that the defendant’s breach of the standard of
care proximately caused the injury or death. See § 12-2604; see also
Thompson, 141 Ariz. at 608 (“In the ordinary [medical malpractice] case the
traditional rule prevails.”). But where the “duty breached was one imposed
to prevent the type of harm which plaintiff ultimately sustained,” a plaintiff
can establish causation by showing the “defendant’s failure to exercise
reasonable care increased the risk of the harm he undertook to prevent.”
Thompson, 141 Ariz. at 608. To survive summary judgment, a “[p]laintiff
need only present probable facts from which the causal relationship
reasonably may be inferred.” Robertson v. Sixpence Inns of Am., Inc., 163
Ariz. 539, 546 (1990).
¶18 Here, the trial court essentially disqualified Windhurst’s
standards-of-care experts by reasoning it could not “adequately make [a]
comparison” of “the qualifications of the individual Corizon employees
and agents who provided the underlying medical care with the
qualifications of [Windhurst’s] corresponding experts” because she did not
adequately specify individual providers. But we do not interpret § 12-2604
as requiring that degree of specificity in cases like this one, involving
allegations against a health care institution for a breach of its independent
standard of care. It is sufficient to produce evidence that the institution
itself fell below the applicable standard of care. See § 12-2604(B).
¶19 To the extent it was necessary for Windhurst to establish
Corizon’s breach of its standard of care by referring to evidence of the
failures of individual providers, Windhurst’s experts did name individual
providers. Specifically, in opining about the breaches of the applicable
standards of care for each of their respective provider classes, Dr. Rosner
named Dr. Young; Panosky named Nurse Daemmer and Nurse Hughes;
and Hood named Nurse Practitioners Castillo, Hogan, Roberts, and Ross.
Moreover, the experts attributed specific actions and, more to the point,
inactions by these individuals that contributed to Mr. Windhurst’s injuries.
Therefore, the trial court erred to the extent it based partial summary
judgment on its perceived inability to compare the qualifications of Corizon
with those of Windhurst’s experts.2
2In her opening brief, Windhurst argues the trial court’s
reconsideration ruling “violated [her] right to Due Process” under the
United States Constitution because it “never gave [her] the opportunity to
demonstrate her experts were qualified.” Because our determination that
her experts were statutorily qualified is dispositive, we need not reach the
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Opinion of the Court
¶20 Corizon, citing § 12-2604, principally contends that
Dr. Rosner was not qualified to testify about the standards of care of
“clinicians” in disciplines other than his own. During oral argument,
Windhurst conceded that Rosner was not qualified to do so. But Corizon
does not explain why Rosner was unqualified to testify as to the standard
of care that applied to Corizon as an institution and to the impact its failure
to meet that standard had on the conduct of the individual clinicians who
provided care.
¶21 Indeed, Dr. Rosner was a licensed health professional with
specialized knowledge in the practice of correctional medicine. See § 12-
2604(A); Ariz. R. Evid. 702. He had “worked in a leadership role in
correctional medicine . . . since July 2013,” and in that role he had “directly
overseen the health care in multiple city jails,” which included “managing
and evaluating the care provided by hundreds of physicians, physician
assistants . . . , and nurse practitioners,” or “collectively ‘Clinicians.’” To
the extent the trial court interpreted Rosner’s testimony as going beyond its
proper scope, it was improper for it to disregard his otherwise proper
testimony.
¶22 For example, it would be improper for Dr. Rosner to opine as
to the standards of care applicable to board certified specialists such as
dermatologists, nephrologists, or urologists, given that he was not also
board certified in those areas. See Baker v. Univ. Physicians Healthcare, 231
Ariz. 379, ¶¶ 27-28 (2013) (“[E]xpert [must] be certified in the specialty at
issue in the particular case.”). But, as Windhurst argues, the trial court
could have limited Rosner’s testimony about any applicable standards of
care of “clinicians” to only physicians within his area of expertise. And it
was entirely proper for Rosner to say that Corizon’s physicians, within his
area of expertise and training, should have appreciated it was necessary to
consult a specialist in any specialty areas or to follow their recommended
treatment plans. And although it would be similarly improper for Rosner
to opine as to the standards of care of nurses or nurse practitioners, see § 12-
2604; St. George v. Plimpton, 241 Ariz. 163, ¶¶ 26-27 (App. 2016) (doctor not
qualified to testify regarding nurse’s standard of care), his references to
these provider classes were in the context of the institution’s standard of
care. Certainly, opinions as to the breach of institutional standard of care
may implicate or depend upon breaches of the standards of care of
individual providers or classes of providers, including nurse or nurse
constitutional issue. See City of Sierra Vista v. Sierra Vista Wards Sys. Voting
Project, 229 Ariz. 519, ¶ 23 (App. 2012).
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WINDHURST v. ARIZ. DEP’T OF CORRS.
Opinion of the Court
practitioner standards of care. To the extent Rosner’s opinions as to the
institutional standard of care are related to such other breaches and are
supported by the opinions of the standards-of-care experts in those areas,
he is permitted to refer to the failures of other providers.3
¶23 As the standard-of-care expert both as to the institution and
its physicians involved in Mr. Windhurst’s care, Dr. Rosner’s reference to
clinicians generally provided sufficient specificity to establish that Corizon
had fallen below its standard of care by creating impediments to its
clinicians’ ability to perform their work. Notably, Corizon does not point
to where it objected to Rosner’s expert opinions regarding institutional
standards of care; we generally would not consider such an evidentiary
challenge for the first time on appeal. See Woyton v. Ward, 247 Ariz. 529,
¶ 16 (App. 2019).
¶24 In any event, in this case, Windhurst produced sufficient
evidence to proceed to trial on her medical negligence claim against
Corizon as an institution which, through its employees, provided care to
Mr. Windhurst. Corizon nonetheless argues that Windhurst failed to
“prove” that it, as an institution, breached any standard of care in its
“overall administration” of the facility. We disagree. As to the institutional
standard of care, Windhurst offered evidence that, at minimum, raised
material issues of fact about whether Corizon’s alleged breaches caused or
contributed to Mr. Windhurst’s death.
¶25 In his expert report, Dr. Rosner opined that it was “not
unreasonable” to apply the standards of care for long-term care facilities set
by the Centers for Medicare and Medicaid Services (CMS) to the prison
infirmary. He identified several CMS standards that “appear[ed] clearly to
have not been met.” For example, Rosner cited the standards for
incontinence care in 42 C.F.R. § 483.25(e), which provides, among other
things, that a “facility must ensure that . . . [a] resident who is incontinent
of bladder receives appropriate treatment and services to prevent urinary
tract infections and to restore continence to the extent
possible.” § 483.25(e)(2)(iii). Rosner opined that this standard had been
breached by the institution’s “failure to adequately manage the suprapubic
catheter over time, including mismanagement of leakage and lack of
3Nothing in this decision is intended to restrict the trial court’s ability
to preclude any medical expert from offering standard-of-care opinions
about medical specialties to which they do not belong.
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WINDHURST v. ARIZ. DEP’T OF CORRS.
Opinion of the Court
consultation with a urologist when persistent leakage remained a
problem.”
¶26 As another example, Dr. Rosner cited the CMS skin integrity
standards of care, which provide that a facility must ensure that “[a]
resident with pressure ulcers receives necessary treatment and services,
consistent with professional standards of practice, to promote healing,
prevent infection and prevent new ulcers from
developing.” § 483.25(b)(1)(ii). He opined that “[t]he worsening of skin
breakdown and tracking wounds as documented in the record are
consistent with not meeting this standard.”
¶27 Dr. Rosner also cited the CMS standard of care for the
availability of emergency services in 42 C.F.R. § 483.30(d), which states that
a “facility must provide or arrange for the provision of physician services
24 hours a day, in case of an emergency.” Rosner opined that this standard
was “clearly not met” when Mr. Windhurst was “gravely ill” in his final
days in the infirmary and “nurses concerned for his well-being were unable
to promptly contact a higher level Clinician for management decisions,”
and when they finally made contact with a physician, “no[] prompt in
person evaluation . . . resulted.” Finally, Rosner opined that these and
other “breaches of the applicable community standards of care . . . more
probably than not caused or contributed to [Mr. Windhurst’s] eventual
death.”
¶28 Corizon maintains that Windhurst “is unclear about how” it,
as an institution, breached a standard of care because she did not
specifically allege, for example, negligent training, hiring, or supervising,
or that particular policies or procedures violated institutional standards of
care. But to withstand summary judgment, Windhurst was not required to
use magic words to establish that Corizon had a duty and breached it. See
A.R.S. § 12-563; Seisinger, 220 Ariz. 85, ¶ 32. Nevertheless, as discussed
above, Dr. Rosner did point to several institutional factors that
“systemically limited” providers’ individual ability to provide the “level of
care that Mr. Windhurst required,” including “substandard environmental
conditions,” “inadequate staffing,” and “poor . . . tracking systems.”
¶29 As to the negligence of the health care providers employed by
Corizon, Windhurst directed the trial court to “numerous breaches by
omission to entire classes of providers, which necessarily includes every
individual in each class who encountered [Mr. Windhurst] and failed to
render required care,” including catheter care, wound care, and infection
diagnosis and care.
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Opinion of the Court
¶30 In her statement of facts, Windhurst pointed to Panosky’s
testimony about deficiencies with respect to the catheter care provided by
the nursing staff and its potential contribution to her husband’s
death. Panosky first opined generally that she did not believe that
Mr. Windhurst had received reasonable and appropriate care by the
nursing staff. When she was asked “what was lacking and when was it
lacking specifically as far as standard of care,” she mentioned, among other
things, that nurses did not have or request the supplies needed for his
catheter change. Later, Panosky mentioned that nurses would “need to
make sure that the catheter was working correctly, that it was clean and
dry, and that it wasn’t leaking.” She testified that here, however,
Mr. Windhurst “had . . . leakage around his catheter, multiple, multiple
times, or continued leaking, and that wasn’t really addressed.” Although
nursing staff documented “many times” that the catheter was leaking, they
“were waiting for the right equipment to change the catheter.” She testified
that “as nurses, it’s . . . our job to make sure that the cleanliness of [our]
wound care, of changing dressings, is either sterile technique or clean
technique, so having a leaking catheter isn’t good infection
control.” Panosky stated that “[i]f you know you have a leaking catheter
and that can lead to infection, and infection can lead to sepsis, I would say
yes, it’s unprofessional not to continue to get the equipment and do what a
patient needs to keep him from declining in his health.” Finally, Panosky
opined that the issue with the leaking catheter “could have contributed to
his sepsis.” Together, this testimony articulates (1) a nursing standard of
care: that nursing staff should remedy a catheter leak when it is discovered;
(2) a breach of that standard of care through an ongoing failure by the
nursing staff to remedy Mr. Windhurst’s catheter leaks, attributed to a lack
of supplies or proper cleaning; and (3) causation testimony that this breach
could have contributed to the sepsis underlying Mr. Windhurst’s death.
¶31 To the extent Panosky was imprecise in stating standards of
care in her testimony, her written report was more specific. She articulated
several standards of care for nurses, including those established by statute
in the Nurse Practice Act, A.R.S. §§ 32-1601 to 32-1669 and A.A.C. R4-19-
101 to R4-19-815, including that registered nurses must “[i]ntervene[] on
behalf of a client when problems are identified.” A.A.C. R4-19-
402(C)(4)(e). A juror could reasonably infer from Panosky’s testimony that
the nursing staff’s failure to address the continued leakage around
Mr. Windhurst’s catheter breached that standard.
¶32 In her statement of facts, Windhurst also identified many of
Panosky’s observations and opinions relating to breaches of standards of
wound care by Corizon’s nursing staff in the Tucson infirmary. According
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Opinion of the Court
to Panosky, Mr. Windhurst’s open wound needed daily care. She testified
that the wound needed to be kept clean, given daily dressings, monitored
closely, and pressure on it needed to be relieved either via a pressure-
relieving surface or a program of turning and repositioning. Failure in any
of those areas could lead to infection, rapid deterioration, and
hospitalization. Panosky testified to several aspects of the nursing staff’s
care of the wound that led her to conclude that the nursing staff did not
provide “reasonable and appropriate wound care.” Panosky stated that the
nursing staff’s documentation failed to show that the wound was regularly
cleaned or dressed. She noted that at various times in the Tucson infirmary,
(1) Mr. Windhurst had “reported feeling hot”—a sign of fever, a symptom
of infection—and “they didn’t even take his temperature”; (2) nurses had
reported visible signs of infection, including “green, odiferous . . . drainage
with his wounds being red,” but “there was no phone call or report to a
medical provider”; and (3) there had been no needed wound care
solution. She observed that in June 2016, nursing staff documented that his
wound had worsened but “there was no evidence that nursing obtained
any orders to address this wound or a different way to change his
dressing.” Documentation also showed that bedding changes had
occurred only “approximately once a month,” which was a concern when
there were “leaking wounds or leaking catheters.”
¶33 Panosky tied the nursing staff’s deficiencies in catheter care
to the development of Mr. Windhurst’s wounds and related care. She noted
that he had been bedded on an egg-crate mattress which held the urine
leaking from the catheter, and the “[s]tandard of care wouldn’t be to [leave
a wound patient laying] on an egg crate mattress that’s all wet.” If urine
from the leaking catheter, for which “nothing really had been done” for “six
months,” were running down his sides or to his back, it would “increase a
risk for infection . . . in his wound.” Reasonable jurors could infer that, with
respect to Mr. Windhurst’s wound care, the failures to change his bedding,
regularly clean and dress his wound, address the catheter leak, and obtain
a change in orders as signs of a worsening infection appeared, were among
what Panosky termed the “many lifesaving interventions the nurses could
have done that they didn’t do.”
¶34 Given the standard of care that nurses must intervene on
behalf of the patient when problems are identified, A.A.C. R4-19-
402(C)(4)(e), jurors could reasonably conclude that these failures were
breaches of that standard of care. And as for Panosky connecting these
breaches to certain individuals, she specifically stated Nurse Daemmer’s
failure to promptly perform a urine dip after noting Mr. Windhurst had
signs of a serious infection “definitely breached the standard of care by not
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Opinion of the Court
getting these things done when they were ordered.” Panosky also testified
that Nurse Hughes’s failure to immediately contact a provider “was
inappropriate” when she identified critical changes in Mr. Windhurst’s
appearance and noted he was “at risk for sepsis.”
¶35 Panosky further testified that several other inactions of the
nursing staff had “attributed [sic] to causing his infection getting worse, . . .
him going into sepsis, and eventually dying.” From this testimony, and the
report on which her testimony was based, a reasonable juror could
conclude that the deficiencies and delays in Mr. Windhurst’s care by the
nurses were a contributing cause of his death.
¶36 Corizon maintains that Panosky was not able to provide
causation testimony and was unqualified to do so in any event. It points
out that at her deposition, Panosky testified that she was “[n]ot specifically”
“offering any medical causation opinions in this case.” Based on our review
of the record, she nonetheless did so, and, contrary to Corizon’s argument,
it was not improper for her to render an opinion about causation. See Rasor,
244 Ariz. 423, ¶ 25 (proper for nurse qualified under Rule 702 to testify as
causation expert). But, because Corizon challenges Panosky’s
qualifications under Rule 702 for the first time on appeal, any such
argument is waived. See Ariz. R. Evid. 103(a)(1) (party must timely object
or move to strike to preserve claim of error in admission of evidence);
Woyton, 247 Ariz. 529, ¶ 16 (challenge to expert’s qualifications not raised
before trial court are waived on appeal). And even if not waived, Panosky
would be qualified to offer causation opinion testimony as to Corizon’s
registered nurses. As a registered nurse practicing in correctional medicine,
Panosky had “specialized knowledge that [would] assist the jury” in
resolving whether Corizon’s nurses fell below the standard of care and that
the failure caused or contributed to the injuries. See Lohmeier, 214 Ariz. 57,
¶ 28. Similarly, we reject Corizon’s argument that Panosky was not
qualified to give a causation opinion because she is not permitted to make
a medical diagnosis. “To the extent there is a distinction between the
‘diagnosing’ that nurses are permitted to do under Arizona law” and “a
‘medical diagnosis,’ we find it a distinction without a difference as it
pertains to the threshold question of whether nurses in general may give
causation testimony in medical malpractice cases.” Rasor, 244 Ariz. 423,
¶ 18.
¶37 As to the nurse practitioners, Hood stated that those who
treated Mr. Windhurst breached various standards of care and she
specifically named several nurse practitioners whose breaches “more
probably than not caused or contributed to [Mr. Windhurst’s]
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WINDHURST v. ARIZ. DEP’T OF CORRS.
Opinion of the Court
death.” Among other things, she noted that during Mr. Windhurst’s
decline in November 2016, Nurse Practitioner Castillo failed to meet the
standard of care set forth in A.A.C. R4-19-508(A), that a nurse practitioner:
shall refer a patient to a physician or another
health care provider if the referral will protect
the health and welfare of the patient and consult
with a physician and other health care
providers if a situation or condition occurs in a
patient that is beyond the [nurse practitioner’s]
knowledge and experience.
Hood documented numerous failures by Castillo to meet this standard of
care by not obtaining a physician consult or proper diagnostic testing
during Mr. Windhurst’s mid-November decline leading up to his
hospitalization. Hood reported that Castillo had failed to act despite
Mr. Windhurst’s “worsening clinical presentation”; “poorly controlled
diabetes”; “altered mental status,” including confusion; a “perforated
tympanic membrane” that developed with “pain and malodorous
discharge” from the ear and which was not examined “because of the lack
of otoscopic equipment”; a “hard and tumor-like” mass that recently
appeared in his jaw which “increase[ed] [in] size” as Mr. Windhurst
“continued to decline”; a diagnosed urinary tract infection; and a
worsening rash that did not resolve over Castillo’s “fourteen encounters”
with Mr. Windhurst in October and November. Hood additionally stated
that Castillo had never documented the status of Mr. Windhurst’s chronic
wounds during any of her encounters with him; failed to order a blood
count, the results of which ultimately indicated a problem “other than a
simple urinary tract infection”; and failed to monitor his kidney function
via appropriate testing. Hood’s testimony provides sufficient evidence for
a jury to reasonably infer that the negligent omissions by Corizon’s nurse
practitioners contributed to Mr. Windhurst’s death.
¶38 As to the negligent omissions of Corizon’s physicians,
Windhurst pointed out in her statement of facts that “Dr. Rosner opined
that, from a medical management perspective, the Standard of Care
required [Mr. Windhurst] to be sent to the hospital between November 9
and 11.” Rosner gave that opinion in his deposition, and noted in his report
that Mr. Windhurst was “transfer[red] to a hospital only once he was ill
enough to warrant admission to an intensive care unit.” “Earlier action,”
according to Rosner, would likely have “avoided the critical condition that
developed.” For example, at one point, nurses were unable to contact a
“higher level Clinician for management decisions” and once the treating
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WINDHURST v. ARIZ. DEP’T OF CORRS.
Opinion of the Court
physician, Dr. Young, was finally contacted, he failed to conduct an
in-person evaluation, thereby failing to both appreciate Mr. Windhurst’s
declining vital signs and provide adequate care. A juror could reasonably
infer that the failure to send Mr. Windhurst to the hospital earlier breached
Corizon’s duty to “provide or arrange for the provision of physician
services 24 hours a day, in case of an emergency,” 42 C.F.R. § 483.30(d), and
that this breach was among those that, according to Rosner, caused or
contributed to Mr. Windhurst’s death.
¶39 In sum, viewing all evidence and inferences in the light most
favorable to Windhurst, we determine that a jury could reasonably infer
that Corizon and its health care providers fell below the applicable
standards of care thereby increasing the risk of Mr. Windhurst’s death.
Having resolved these issues in Windhurst’s favor, we agree that the trial
court misapplied the law and did not view the evidence in the light most
favorable to her. Thus, the court erred in granting partial summary
judgment on Windhurst’s medical negligence claim.
Disposition
¶40 For the foregoing reasons, we vacate the trial court’s grant of
partial summary judgment to Corizon and remand for further proceedings
consistent with this opinion. Because Corizon is not the prevailing party,
we deny its requested attorney fees and costs on appeal. See A.R.S. § 12-
341. Windhurst did not request attorney fees, but she is entitled to recover
her costs upon compliance with Rule 21, Ariz. R. Civ. App. P.
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