Evidence/Medical Malpractice/Causation/Expert Witness Testimony

Sampson v. Surgery Center of Peoria, No. CV-210-0024-PR (July 30, 2021) (J.Bolick) https://supremestateaz.granicus.com/player/clip/3145?view_id=11&redirect=true

WHERE CAUSE OF DEATH IS DISPUTED IN MEDICAL MALPRACTICE CASE CAUSATION MUST BE PROVEN BY EXPERT TESTIMONY

In this wrongful death action, plaintiffs' 4 year old son died following a tonsillectomy and adenoidectomy performed outpatient at the defendant surgery center. He was sent home an hour after the surgery.  Plaintiffs' standard of care expert, Dr. Greenberg, opined that the boy was released home too soon and that he would not have died had he been kept at the center and observed for at least three hours. In deposition, Dr. Greenberg equivocated between the 1 hour and 3 hour and never opined that insufficient observation was the probable proximate cause of death. Plaintiff argued this opinion met the appropriate standard to establish a breach of the standard of care as well as causation.  Defendants moved for partial summary judgment arguing that without a separate expert witness to specifically opine that defendants' breach was the proximate cause of death plaintiffs could not meet their burden on this element.  When pressed by the trial court at oral argument to identify the testimony from the standard of care expert that established causation, plaintiffs' 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.'” Judgement was entered for the defendants and the plaintiffs appealed. The Arizona Court of Appeals reversed as to the Surgery Center finding “a reasonable jury could find that the standard of care for observations was three hours” and if it did that the early discharge was the cause of death. The Arizona Supreme Court vacated the court of appeals decision and affirmed the trial court.

The standard of care must be established by expert

medical testimony “[u]nless malpractice is grossly apparent,”

 and expert causation testimony is necessary unless

causation is “readily apparent to the jury on the facts,” 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. .  .  .

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.