St. George v. Plimpton, 753 Ariz. Adv. Rep. 8 (App. Div. I, November 19, 2016) (J. Gould)

PLAINTIFFS SHOULD PLEAD NEGLIGENT SUPERVISION AS SEPARATE COUNT/LACK OF TESTIMONY OF SPECIFIC ACTS OF NEGLIGENCE/LACK OF QUALIFICATIONS OF EXPERT/PROPER DENIAL OF REQUEST FOR MORE TIME TO FIND PROPER EXPERT

In this obstetrical and nurse-midwifery malpractice suit plaintiff wife alleged defendant certified nurse midwife negligently injured her when applying pubic pressure during the delivery of her baby. Plaintiffs sued the obstetrician and nurse midwife as well as the hospital. In plaintiffs' A.R.S." section 12-2603(A) certification plaintiffs stated Dr. Harry Watters, a board-certified obstetrician/gynecologist, would testify as their standard of care expert for both the doctor and nurse. In affidavit he claimed there was negligent supervision by the doctor. Notably, plaintiff did not plead negligent supervision as a separate theory in the complaint.

In deposition Watters testified he had supervised nurse midwives all his career but had never served as a nurse midwife. He further said the treating doctor's “relationship” with the defendant nurse was below the standard of care but could point to no specific act or omission that was below the standard. Later Watters filed “Corrections to Deposition” restating the nurse fell below the standard and stating the doctor fell below the standard by having a nurse midwife under his supervision who had no protocol of her own and who had not been provided one by the doctor for the procedure. The trial court granted both defendants summary judgment and denied plaintiffs' request for more time to find an expert. The Arizona Court of Appeals affirmed.

Because Watters failed to testify specifically in affidavit, deposition or corrections what the doctor did exactly that fell below the standard of care summary judgment was appropriate. Testifying there was a failure to properly supervise or provide protocols without testifying as to what specifically should have been done that was not done in the supervision or protocols is not enough.  Further, plaintiffs' failure to seperately plead negligent supervision and marshal expert testimony to support it was fatal to the claim against the doctor.  The court stated that in order to “allege an independent claim for negligent supervision, a plaintiff must establish the employer knew or should have known that the employee ‘was not competent to provide certain care,' and that the employer's failure to supervise the employee caused injury.”

As to the defendant nurse midwife, plaintiffs argued Arizona Administrative Code Title 9, Chapter 16 regulates midwives and defendant's violations of these regulations constitutes a violation of the standard of care.  The court of appeals disagreed finding that the defendant was “not a midwife subject to regulation by the midwifery statutes and regulations. [She] is a certified nurse midwife, and while midwives are licensed by the Arizona Department of Health Services' certified nurse midwives are certified by the Arizona State Board of Nursing. A.R.S. §36-753.”

Finally the court of appeals found that Dr. Watters was not qualified to testify to a breach of the standard of care by the defendant nurse midwife.  A.R.S. §12-2604 requires plaintiff prove a breach of the standard by an expert who has practiced in the same field and specialty as the defendant at the time of the alleged malpractice and that a majority of that expert's professional time be devoted to the clinical work or teaching in this field of medicine in the year preceding the alleged malpractice.  Dr. Watters is not qualified under A.R.S.§12-2604(A)(2), because he is not a certified nurse midwife and there is no evidence he instructs them professionally.

Finally, plaintiffs' request at oral argument on the summary judgment motions for more time to find a practicing nurse expert was properly denied for noncompliance with rule 56(f) of the Arizona Rules of Civil Procedure. Rule 56(f) requires a sworn statement be filed stating:

(1) the particular evidence beyond the party's control;

(2) the location of the evidence;

(3) what the party believes the evidence will reveal;

(4) the methods to be used to obtain it; and

(5) an estimate of the amount of time the additional discovery will require.

Here plaintiffs did not file a sworn statement, did not advise if they had found a nurse expert or how long that would take so there was no abuse of discretion in denying the request for more time.