Polyard v. Alattar ( 2023 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JASON POLYARD, Plaintiff/Appellant/Cross-Appellee,
v.
MUHIB ALATTAR, Defendant/Appellee/Cross-Appellant,
SCOTTSDALE HEALTHCARE HOSPITALS, an Arizona Corporation,
d.b.a. SCOTTSDALE OSBORN MEDICAL CENTER, Defendant/Appellee.
No. 1 CA-CV 22-0413
FILED 3-28-2023
Appeal from the Superior Court in Maricopa County
No. CV2017-094745
The Honorable Peter A. Thompson, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Branham Law Office, Mesa
By Marlon E. Branham
Counsel for Plaintiff/Appellant/Cross-Appellee
Broening Oberg Woods & Wilson PC, Phoenix
By James R. Broening, Megan E. Gailey, Kelley M. Jancaitis
Counsel for Defendant/Appellee/Cross-Appellant
Quintairos, Prieto, Wood & Boyer PA, Scottsdale
By Rita J. Bustos, Michael Tamm
Counsel for Defendant/Appellee
POLYARD v. ALATTAR, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Anni Hill Foster joined.
T H U M M A, Judge:
¶1 Plaintiff Jason Polyard appeals from the grant of summary
judgment against him on his medical negligence claims and the denial of
his motion for new trial, treated as a motion for reconsideration. Defendant
Dr. Muhib Alattar cross-appeals from the denial of his request for taxable
costs. For the reasons below, the grant of summary judgment is affirmed,
the denial of taxable costs is vacated, and this case is remanded for an award
of taxable costs.
FACTS AND PROCEDURAL HISTORY
¶2 On July 31, 2015, Polyard had a seizure, fell, hit his head and
was taken by ambulance to defendant Scottsdale Osborn Medical Center
(the Hospital). Among other things, Polyard complained of left wrist and
shoulder pain. Polyard spent several days in the Hospital being treated.
¶3 On August 2, 2015, given swelling and bruising, Polyard had
x-rays taken of his left forearm, which showed no fracture, dislocation or
abnormality. On August 3, 2015, Alattar examined Polyard and noted mild
to moderate swelling of his left hand. Medical records show that Polyard’s
left arm ached on August 3 and 4, 2015, and had pressure on August 4, 2015.
Polyard was discharged from the Hospital at around 1:30 p.m. on August
4, 2015. Polyard returned to the Hospital emergency room at about 7:30
p.m. that night complaining of left arm pain and swelling, which he said
had become much worse after his discharge. An orthopedic surgeon noted
compartment syndrome (an increase in pressure in a muscle causing pain)
and an MRI revealed extensive edema (swelling caused by fluid). Later that
evening, the orthopedic surgeon performed emergency surgery, called a
fasiotomy, to relieve swelling and pressure in his left arm.
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POLYARD v. ALATTAR, et al.
Decision of the Court
¶4 Polyard filed this suit in July 2017, alleging medical
negligence by Alattar based on a delayed diagnosis of compartment
syndrome and resulting permanent injury. Polyard also sued the Hospital,
claiming vicarious liability.1
¶5 Polyard retained expert Dr. Stella Fitzgibbons, who opined
that Alattar fell below the standard of care in treating Polyard by failing to
order imaging or consult orthopedics to determine why Polyard’s hand was
swollen. Fitzgibbons testified she thought the compartment syndrome was
starting to develop before Polyard was discharged from the Hospital. She
testified, however, that compartment syndrome can take anywhere from
two to three to 24 hours to “set in.” Fitzgibbons could not say when Polyard
developed compartment syndrome, but opined that it was sometime
between noon and 7:00 p.m. on August 4, 2015. She could not say whether
Polyard had signs and symptoms of compartment syndrome at the time of
his discharge. Fitzgibbons could not say to a reasonable degree of medical
probability that, had more imaging been performed at about noon on
August 4, 2015, it would have changed Polyard’s outcome.
¶6 Polyard also retained orthopedic surgeon Dr. Michael
Steingart as a causation expert. At his deposition, Steinhart opined that he
believed the diagnosis of compartment syndrome was delayed, but could
not say that Polyard would have been taken to surgery sooner if the
compartment syndrome had been diagnosed earlier. He added, however,
that if Polyard’s medical providers had “noticed it sooner, they may have
been able to prevent any surgery.”
¶7 After the close of discovery, Alattar moved for summary
judgment, arguing Polyard failed to establish that a deviation from the
standard of care caused injury. The Hospital also moved for summary
judgment. The court granted the motions and denied Polyard’s motion for
reconsideration. The court, however, awarded no taxable costs to Alattar.
Polyard timely appealed the resulting judgment, and Alattar timely cross-
appealed the denial of taxable costs. This court has appellate jurisdiction
under Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1) (2023).2
1 The superior court determined that Polyard was not making any direct
claim against the Hospital, a ruling not challenged on appeal.
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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POLYARD v. ALATTAR, et al.
Decision of the Court
DISCUSSION
I. The Court Properly Entered Summary Judgment for Defendants.
¶8 To prove his medical malpractice claim, Polyard had to
establish through expert testimony that Alattar breached the applicable
standard of care and his breach caused Polyard’s injury. See A.R.S. § 12–
563; Barrett v. Samaritan Health Servs., Inc., 153 Ariz. 138, 141 (App. 1987);
Gregg v. Nat’l Med. Health Care Servs., Inc., 145 Ariz. 51, 54 (App. 1985).
A. Standard of Care.
¶9 Polyard argues that Alattar deviated from the standard of
care. Alattar counters that Fitzgibbons failed to testify to a reasonable
degree of medical probability that Alattar deviated from the standard of
care. Reasonable degree of medical probability or certainty is the standard
for causation, not standard of care. See Benkendorf v. Advanced Cardiac
Specialists Chartered, 228 Ariz. 528, 530, ¶ 8 (App. 2012). The record shows
Fitzgibbons testified that Alattar fell below the standard of care by failing
to order imaging or consult orthopedics to explain why Polyard’s left hand
was swollen. This is enough to create a genuine issue of material fact on the
standard of care issue.
B. Waiver.
¶10 The superior court granted summary judgment to Alattar,
concluding Polyard failed to offer expert evidence that Alattar breached the
standard of care or caused the injury to Polyard. In his opening brief on
appeal, Polyard challenges the standard of care ruling, but not the causation
ruling. A plaintiff in a medical malpractice case must show both a breach of
the standard of care and causation, A.R.S. § 12-563, and Alattar argues that
Polyard waived any argument on causation. An opening brief on appeal
must affirmatively present, with citation to legal authorities and the record,
each issue an appellant wishes to raise. See ARCAP 13(a)(6) & (7). A failure
to do so can lead to waiver. See Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62
(App. 2009). By failing to raise or develop any causation argument, Polyard
has waived that argument. Even apart from waiver, however, Polyard has
shown no error in the grant of summary judgment on causation.
C. Causation.
¶11 A medical negligence claim requires the plaintiff to prove a
“causal connection between an act or omission and the ultimate injury
through expert medical testimony, unless the connection is readily
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POLYARD v. ALATTAR, et al.
Decision of the Court
apparent to the trier of fact. To establish the requisite causal connection, the
plaintiff’s expert is generally required to testify as to probable causes of the
plaintiff's injury.” Benkendorf, 228 Ariz. at 530 ¶ 8 (quoting Barrett v.
Harris, 207 Ariz. 374, 378 ¶ 12 (App. 2004) and citing cases). Causation is a
question of fact for the jury “unless reasonable persons could not conclude
that a plaintiff had proved this element.” Barrett, 207 Ariz. at 378 ¶ 12.
¶12 When faced with defendants’ motion for summary judgment,
Polyard cited an affidavit by Fitzgibbons stating Alattar’s breach
“significantly contributed to the compartment syndrome” Polyard
sustained. At her deposition, however, Fitzgibbons admitted that her
opinions were limited to standard of care. Although testifying that she
thought the compartment syndrome was starting to develop before Polyard
was discharged from the Hospital, she estimated that it developed
sometime between noon and 7:00 p.m. on August 4, 2015. Fitzgibbons could
not say whether Polyard had signs and symptoms of compartment
syndrome before being discharged. She also could not say that to a
reasonable degree of medical probability that, had more imaging been
performed at about noon on August 4, 2015, it would have changed the
outcome. Fitzgibbons also testified that compartment syndrome can take as
long as 24 hours “to set in.” Accordingly, a jury would have to speculate
whether earlier imaging or an orthopedic consultation would have
forestalled the development of compartment syndrome, avoiding the need
for surgery. For these reasons, Fitzgibbons’ testimony is insufficient
evidence of causation to reach a jury.
¶13 In his reply brief on appeal, Polyard argues there is a genuine
issue of material fact on causation given the showing that Alattar’s breach
increased the risk of his injury, citing Thompson v. Sun City Cmty. Hosp.,
Inc., 141 Ariz. 597 (1984). Thompson addressed a “loss of chance” theory of
causation, in which a plaintiff only needs to show that negligence
“increased the risk” of harm, instead of providing evidence of causation.
141 Ariz. at 605–08. But this “loss of chance” theory applies only to “the
limited class of cases in which defendant undertook to protect plaintiff from
a particular harm and negligently interrupted the chain of events, thus
increasing the risk of that harm.” Id. at 608. Polyard has not pressed such a
theory here. Thus, Polyard had to offer sufficient evidence of causation to
defeat summary judgment, which he failed to do. See Benkendorf, 228 Ariz.
at 530 ¶ 8.
¶14 In his reply brief on appeal, Polyard also refers to Steingart’s
report, which states that “in all probability, there was a delay in diagnosis
of compartment syndrome leading to a devastating outcome.” Because
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POLYARD v. ALATTAR, et al.
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Polyard first relied on this report in his reply in support of his motion to
reconsider, he waived this argument. See, e.g., Nickerson v. Green Valley
Recreation, Inc., 228 Ariz. 309, 315 ¶ 9 (App. 2011); Evans Withycombe, Inc. v.
W. Innovations, Inc., 215 Ariz. 237, 240–41 ¶¶ 15–16 (App. 2006). Apart from
waiver, this statement does not satisfy Polyard’s burden to show that earlier
imaging or an orthopedic consult probably would have forestalled the
development of compartment syndrome or the necessity for surgical
intervention. At his deposition, Steingart could not testify that if
compartment syndrome had been diagnosed sooner, Polyard would have
been taken to surgery sooner or that surgery could have been avoided; he
only testified that if Polyard’s healthcare providers had “noticed it sooner,
they may have been able to prevent any surgery.” This testimony does not
meet the probability standard to prove causation. See Benkendorf, 228 Ariz.
at 530 ¶ 8.
¶15 Because Polyard failed to provide sufficient causation
evidence, his claim fails as a matter of law. See Barrett, 207 Ariz. at 378, ¶ 12.
Accordingly, the superior court properly granted summary judgment
against him and did not abuse its discretion in denying his motion for
reconsideration. See Tilley v. Delci, 220 Ariz. 233, 238 ¶ 16 (App. 2009). And
because summary judgment for Alattar was proper, the superior court also
properly granted summary judgment for the Hospital on vicarious liability.
Law v. Verde Valley Med. Ctr., 217 Ariz. 92, 95-96 ¶ 12-13 (App. 2007)
II. Cross Appeal.
¶16 Alattar argues the superior court erred in denying his request
for taxable costs. Polyard responds that Alattar did not timely file his
verified statement of costs. By statute, “[t]he successful party to a civil
action shall recover from his adversary all costs expended or incurred
therein unless otherwise provided by law.” A.R.S. § 12-341. The award of
costs to the successful party in a civil action is mandatory, not discretionary.
See, e.g., Tucson Ests. Prop. Owners Ass’n, Inc. v. McGovern, 239 Ariz. 52, 57 ¶
17 (App. 2016); Trollope v. Koerner, 21 Ariz. App. 43, 47 (1973). “[A]ny
request for costs must be filed within 20 days after the decision is filed, or
by any such other date as the court may order.” Ariz. R. Civ. P. 54(f)(2)(A).
¶17 The superior court’s minute entry granting summary
judgment for defendants directed defendants to lodge a form of final
judgment within 20 days. Alattar did so, and at the same time, filed a
verified statement of taxable costs. That request for costs was timely. See id.The court, however, awarded Alattar no taxable costs, which was error.
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POLYARD v. ALATTAR, et al.
Decision of the Court
CONCLUSION
¶18 The judgment for Alattar and the Hospital and against
Polyard is affirmed, other than the denial of taxable costs, which is vacated.
This matter is remanded to the superior court to address taxable costs
incurred in that court. Polyard’s request for an award of attorneys’ fees is
denied. Defendants are awarded their taxable costs incurred on appeal
contingent upon their compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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