Henke v. Hospital Dev. of West Phx., Inc., No. CV-24-0259-PR (October 22,2025) (J. King) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2025/CV240259PR.pdf

A PRIMA FACIE CASE OF MEDICAL NEGLIGENCE NEED ONLY BE ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE AND IT IS FOR THE JURY TO CONSIDER ARE ALL THE EVIDENCE, NOT JUST EXPERT TESTIMONY, IN DETERMING IF A “CLEAR AND CONVINCING” EVIDENCE STANDARD HAS BEEN MET IN A CLAIM AGAINST AN EMERGENCY MEDICINE DEPARTMENT

Plaintiffs' decedent, Greg Henke, died of “acute bacterial endocarditis”—a serious infection of the heart's inner lining—a diagnosis ruled out by the defendant emergency medicine department.

In a disclosure statement, plaintiffs'  infectious disease expert declared that the failure to treat Henke for this infection “likely deprived him of a chance of survival.” Plaintiffs' thoracic surgery expert declared that if Henke had received “immediate medical treatment” for the infection, “more likely than not, he would have survived.” Defendants' disclosure revealed that their expert would testify that a “chance” of survival does not “justify a conclusion that survival was highly likely or highly probable” as required by  A.R.S. § 12-572 (elements of proof in a medical negligence case against an emergency medicine department must be established by “clear and convincing evidence”).

Defendants were granted summary judgment on the basis plaintiffs' experts declarations failed to meet the clear and convincing evidence standard. Plaintiffs filed a motion for reconsideration with a supplemental declaration from their thoracic surgeon expert stating it was “highly probable” Henke would have survived with appropriate and timely treatment of the infection. The Maricopa County Superior Court denied the motion for reconsideration. The Arizona Court of Appeals affirmed the trial court finding that plaintiffs' experts were required to opine Henke would have survived to a “high degree of medical probability.” The court of appeals disregarded the motion for reconsideration finding such motions are not “to be used to make new arguments or present new evidence.”  The Arizona Supreme Court reversed and remanded the trial court's grant of summary judgement and vacated the court of appeals decision.

A.R.S. § 12-563 requires that a medical negligence claim establish proof of a breach of the accepted standard of care which is the proximate cause of injury. “A plaintiff must generally prove the elements of his medical malpractice claim by a preponderance of the evidence.”

While A.R.S. § 12-572 requires proof of the elements of a medical malpractice action against an emergency department by “clear and convincing” evidence, it does not make this standard an element of the claim.

Thus, § 12-563 codifies some prima facie elements of a

medical malpractice claim.  And § 12-572 serves a different purpose, by

setting forth the standard of proof required to convince a factfinder of those

elements when the claim is based on treatment in an emergency

department.  The higher standard of proof in § 12-572 raises the requisite

degree of the factfinder's confidence in the evidence, but it does not change

the elements of the claim in § 12-563.

Once the elements of the medical negligence claim are established it is for the jury to consider all the evidence, including the credibility, demeanor, experience and reasoning of witnesses, timing, gravity of deviation, other surrounding circumstances and reasonable inferences in deciding if the elements have met the “clear and convincing” evidence standard. This determination is not made solely on what the experts state in a declaration.

In short, the supreme court found that the elements of a claim ( A.R.S. § 12-563) are distinct from the standard of proof (A.R.S. § 12-572) and that the evidence a jury should consider in determining if the elements of the claim have met the standard of proof is not limited to expert testimony. Summary judgment is inappropriate here because plaintiffs have established the elements of their claim by the applicable preponderance of the evidence standard, and the question of whether or not those elements meet the “clear and convincing” standard required in a claim against an emergency medicine department must be based upon all the admissible evidence to be presented to the jury and not just expert witness testimony.