Last fall, the Arizona Supreme Court decided Rasor v. Northwest Medical Center LLC.  As is the trend, the Court further narrowed the requirements for an expert in a medical malpractice action.

If you want to skip this long discussion, here are the takeaways:

• Selecting the right expert in a medical malpractice case is fraught with danger.
• It is necessary to retain an expert that is practicing healthcare in nearly the exact same way and with the same certifications as the defendant health care provider. For example, it is not sufficient to get a general nurse when the defendant is a surgical nurse. There are many nuances about this generalized statement. 
• Propound discovery to flush out whether the opposing party will contend your expert is not qualified.
• Prepare your expert for questions about A.R.S. 12-2604.
• Oppose any motion for summary judgment regarding expert qualifications with a Rule 56(d) application and affidavit.

THE LAY OF THE LAND BEFORE RASOR

Any analysis of Rasor requires a brief understanding of A.R.S. 12-2604.  First, the statute is far from a model statue.  It contains numerous vague, undefined requirements, which do not match up with modern medicine.  In any event, as to claims against individual health providers, it reads:

12-2604. Expert witness qualifications; medical malpractice actions

1. In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and the person meets the following criteria:
2. If the party against whom or on whose behalf 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 the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty.
3. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person's professional time to either or both of the following:

(a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty.

(b) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant and, if the defendant is or claims to be a specialist, in an accredited health professional school or accredited residency or clinical research program in the same specialty or claimed specialty.

If the defendant is a general practitioner, the witness has devoted a majority of the witness's professional time in the year preceding the occurrence giving rise to the lawsuit to either or both of the following:

(a) Active clinical practice as a general practitioner.

(b) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant.

First, section A requires the expert to be licensed.  Section A (1) then applies if the defendant (or nonparty at fault) is or claims to be a “specialist.”  If a person is or claims to be a specialist, then the experts must also be of the same specialty.   Moreover, if the specialist is “board certified,” then the experts must also be similarly board certified.  (Remember, Baker v. University Health, 231 Ariz. 379, 296 P.3d 42 (2013) defines the relevant specialty and board certification as the specialty or board certification for the heath care at issue in the case.)

Next, A (2) (a) and (b) establishes requirements regarding the expert's activities in the year before the incident.  The expert must spend the “majority of the persons' professional time” actively clinically practicing the same “health care profession” of the defendant, and if the defendant is a specialist, then the experts must be practicing in the same specialty.  Or, the experts can teach students in an accredited school in the same health profession as the defendant, and if the defendant is a specialist, then the expert must be teaching in that specialty.  Thus, A (2) requires that a majority of the expert's time be spent practicing or teaching in the same “health care profession,” and if applicable “specialty.”

Finally, (3) provides that if a defendant is a “general practitioner,” the expert witness must devote a majority of the witnesses' professional time in the active practice or teaching of a general practitioner.  Again, there is no definition of “general practitioner.”

Unfortunately, neither “specialist” nor “board certified” are defined by the statute.  Can a nurse be a “specialist,” is an advanced nursing certification tantamount to being “board certified” under the statute?  (There are dozens of separate certifications, from adult gerontological nursing (A-GNP) to trauma certified nurses (TCRN)) Is a nurse a “general practitioner?”  These were, and to a large extent still are, open questions before Rasor.

Rasor v. NWMC

In Rasor, a patient had a surgery at NWMC. Thereafter, she remained in an induced coma in the ICU, where she developed bed sores.  The sores required extensive treatment, and the patient was allegedly permanently injured.  The plaintiff filed a medical negligence suit alleging that NWMC's ICU nurses fell below the standard of care of reasonable nurses by failing to turn and otherwise care for plaintiff's bed sores.

The plaintiff's sole standard of care, causation, and damages expert was a certified wound care nurse.  This wound care nurse primarily practiced in long-term care facilities as a wound care coordinator.  Whereas, the defendant nurses worked primarily in its ICU.

At the trial court, NWMC moved for summary judgment arguing the plaintiff's wound care was not qualified to testify against the defendant' s ICU nurses.  It also moved for summary judgment arguing that the plaintiff's nurse was not qualified to comment on causation.  The court agreed and entered summary judgment, as it also ordered that the plaintiff could not get a substitute expert.

At the Court of Appeals level, NWMC argued ICU nurses were a specialty within nursing and, thus, A(2)(a) required that plaintiff's expert also be so specialized.   The plaintiff disagreed, arguing that all nurses were general practitioners, and there were no specialties within registered nurses.

The Court of Appeals disagreed with the plaintiff.  It held if ICU nursing is a specialty, then the wound care nurse was not practicing in this same specialty.  And if the defendants' nurses were general practitioners, then the plaintiff's wound care nurse was acting as a specialist – wound care nursing.  Thus, either way, the plaintiff's expert was not qualified.  Moreover, the court, in dicta, emphasized that ICU nursing likely includes specialized considerations not present in general nursing.  Thus, the court of appeals held the plaintiff's wound care nurse was not qualified under A.R.S. 12-2404.

First, the Supreme Court, stated it was not determining, pursuant to section A (1), whether the defendant's ICU nurses were specialists or board certified.  Rather, like the Court of Appeals, it analyzed whether the requirements of section A (2) or (3) were complied with.  Recall, these sections require an expert spend a majority of the expert's time practicing or teaching in the same “health care profession,” and if applicable “specialty” under A (2) or “general practitioner” under A (3).

Without an in-depth analysis, the Court agreed with the Court of Appeals and concluded the plaintiff's wound care nurse did not comply with sections A (2) or A (3).    The court stated,

Ho is a wound-care specialist. Apart from the requirements of § 12-2604(A)(1), and whether the care involved a medical specialty or was provided by a general practitioner, an expert must have devoted a majority of his or her professional time in the year preceding the injury to some combination of clinical treatment or student instruction. Ho does not meet these requirements, because, as she testified in her deposition, in the year preceding Ms. Rasor's surgery, she worked at a long-term acute care facility as a wound care coordinator while “pick[ing] up extra shifts as a house supervisor or in the ICU” and did not work as an ICU nurse.

The court did not provide any further explanation as to whether its decision was based on whether the ICU and wound nurse were not practicing the same heath care profession, specialty, or general practice. Thus, it is unclear upon which basis it concluded that the wound care nurse was not qualified under A (2) or A (3).

First, while not stated, it seems reasonable to assume the court did not think that ICU nurses and the wound care nurse were in different health care professions.  Rather, it is likely that underlying this decision was that both are practicing in the same health care profession – nursing.  This is because both are licensed as nurses under the same licensing section, A.R.S. 32-1601, et. sec.

Next, the Court must have also rejected the plaintiff's argument all nurses are not general practitioners.   Plaintiff contended there are no specialists among nurses, but all nurses are general practitioners.  Thus, the plaintiff argued the wound care nurse and the ICU nurses were actively practicing the same general practice of nursing.  While not specifically addressed, the Court must have rejected this argument.

Rather, the only way the Court's holding makes sense is, like the Court of Appeals, the Court must have concluded:

• nurses can be specialists, and ICU nursing was in fact a specialty of nursing, or
• nurses can be generalist, but if that is the case, then a nurse can only be a generalist if she does not practice any one area of nursing more than 50% of her time.

Thereafter, the Court held a plaintiff who faces a motion for summary judgment on the basis their expert is not qualified must file a Ariz.R.Civ.P. 56(d) request and affidavit seeking leave to obtain a new expert.

Practice Pointers

The take away to bring from this case is that it is now necessary to evaluate all health care providers as providing specialized care.  Remember, Baker taught us that attorneys must evaluate the specialty at issue.  Accordingly, lawyers must obtain an expert who has knowledge and is actively practicing the “specialty” at issue.  Attorneys must assume the court will view different areas of health care, including nursing, as different specialties.  If the defendant nurse is a medical/surgical nurse in a hospital, then the lawyer would be well advised to retain a nurse that practices more than 50 percent of her time on the medical surgical floor.  This is the same for nursing home nurses, ICU nurses, or surgical nurses.

This is true even if the defendant health care provider is a generalist.  Attorneys must attempt to retain a doctor, nurse, or other health care provider, who is practicing in a manner consistent with the defendant and with certifications applicable to the at issue care provided.

What has not yet been answered, is what happens if during discovery the lawyers learn that the defendant nurse(s) or doctor had an extra certification that is relevant to the allegedly negligent care.  Do the lawyers then need to go out and retain nurses or doctors with these extra certifications? This seems to create very onerous burdens on the parties, but it is unknown how the courts will address this issue.

Other practice tips include:

• When preparing an expert for a deposition, it is wise to ensure they are prepared to answer questions about the statute. For example, Is the defendant a specialist, generalists, etc.?  Of course, they must be ready to discuss that they are actively practicing the same specialty as the defendant.

• All parties should in the comprehensive status conference require deadlines to flush out early whether the opposing size may challenge your expert's qualifications. Discovery, including Requests for Admissions, are helpful in this setting as well.

• While not addressed, NWMC moved to preclude plaintiff's nurse from giving causation opinions. It may be safer to have a physician provide causation opinions.

• If the opposing side seeks summary judgment, the party opposing the motion should include in its opposition a detailed Rule 56(d) request and affidavit. This should include whether the opposing side waited in the weeds to file its motion, despite that the expert's qualifications were well known.