                     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        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


                  JAMES A. WEBSTER, Plaintiff/Appellant,

                                        v.

  WINDSONG MEDICAL ASSOCIATES, P.L.C., a professional limited
    liability corporation; YING WANG, M.D., Defendants/Appellees.

                             No. 1 CA-CV 15-0318
                                FILED 12-30-16


            Appeal from the Superior Court in Yavapai County
                        No. P1300CV201101623
               The Honorable Patricia A. Trebesch, Judge

       AFFIRMED IN PART; REVERSED IN PART; REMANDED



                                     COUNSEL

Law Office of Scott E. Boehm, P.C., Phoenix
By Scott E. Boehm
Co-Counsel for Plaintiff/Appellant

Lloyd Law Group, P.L.L.C., Payson
By Arthur E. Lloyd
Co-Counsel for Plaintiff/Appellant

Tolman Law Firm, Tempe
By J. Robert Tolman
Co-Counsel for Plaintiff/Appellant
Jones, Skelton & Hochuli, P.L.C., Phoenix
By Eileen Dennis GilBride, Stephen A. Bullington
Counsel for Defendants/Appellees



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Andrew W. Gould and Judge Patricia A. Orozco joined.


S W A N N, Judge:

¶1             In this medical malpractice and wrongful death action the
superior court, under Ariz. R. Civ. P. (“Rule”) 50, granted partial judgment
as a matter of law to the defendants in the midst of trial. The court ruled
that the plaintiff had failed to present sufficient evidence that any deviation
from the standard of care after a certain date caused the decedent’s death.
Because of the perceived lack of causation evidence, the court instructed the
jury that it could not consider allegedly negligent acts committed after that
date for any purpose. The court also limited the plaintiff’s ability to present
evidence regarding the decedent’s pain and suffering.

¶2             We affirm the ruling regarding pain and suffering. But we
hold that the plaintiff did present sufficient expert testimony to allow a
reasonable jury to infer that the decedent would not have died if her
physician had complied with the standard of care after the cutoff date in
the court’s order. And even in the absence of such causation testimony, we
conclude that the court’s actual instruction to the jury was more restrictive
than its ruling under Rule 50 warranted — evidence of continuing conduct
falling below the standard of care would have been relevant to the jury’s
consideration of whether there was negligence even if certain instances of
deviations from the standard of care could not independently constitute a
tort. Because the court prevented the jury from considering the full
measure of relevant evidence presented at trial, we reverse and remand.

                 FACTS AND PROCEDURAL HISTORY

¶3           On August 22, 2010, Bettie Webster was hospitalized for a
pulmonary embolism, and she was prescribed Coumadin, an anti-
coagulation medication. A few days into Bettie’s hospital stay, Dr. Wang




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                     WEBSTER v. WINDSONG et al.
                        Decision of the Court

assumed responsibility for her care. He discharged Bettie with instructions
to continue Coumadin therapy and receive outpatient monitoring.

¶4          On September 17, 2010, Bettie saw Dr. Wang in his office. She
complained of “redness on her right breast,” swelling, and pain that she
believed was the result of a bug bite. Dr. Wang examined Bettie and
concluded that she had a bug bite.

¶5          On September 20, because Bettie’s breast wound had gotten
worse and she had a fever, Dr. Wang instructed her to go to the emergency
room. There, she was treated for the wound by an emergency-room
physician. That physician prescribed oral antibiotics and released her.
Dr. Wang also saw Bettie in the emergency room that day.

¶6            On September 23, Bettie’s home-health-care nurse noticed
that Bettie was weak, her breast wound had increased in size, and she had
blisters. The nurse, Dr. Wang, and poison control instructed Bettie to go to
the emergency room, but she declined.

¶7            On September 24, Bettie was again admitted to the hospital.
The next day, September 25, Dr. Wang discontinued the Coumadin because
Bettie’s blood chemistry was no longer within normal range. Bettie’s breast
wound and her bloodwork results thereafter improved. Dr. Wang then
restarted Bettie on Coumadin on September 28, 2010. On September 29,
Bettie developed a lesion on her thigh, at which point Dr. Wang began to
suspect that she had Coumadin-induced skin necrosis (“CISN”).

¶8           Bettie ultimately underwent a mastectomy related to the
breast wound and skin debridement related to the thigh wound. She died
on August 1, 2011. Her husband, James A. Webster, filed a medical
malpractice and wrongful death action against Dr. Wang and Windsong
Medical Associates, P.L.C.

¶9             At trial, Webster’s standard-of-care expert, James Wilson,
M.D., testified that Dr. Wang breached the standard of care by continuing
the Coumadin administration on September 20 and 24, 2010. Dr. Wilson
also testified that restarting Bettie on Coumadin on September 28 did not
meet the standard of care:

      Q:     On the 28th . . . Dr. Wang started Bettie back up on
             Coumadin. Do you have an opinion as to whether or
             not that conduct met the standard of care?



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                     WEBSTER v. WINDSONG et al.
                        Decision of the Court

      A:     That did not meet the standard of care.
      Q:     And then the next day the thigh lesion appeared.
      A:     Yes.
      Q:     Do you have an opinion as to what caused the thigh
             lesion?
      A:     The Coumadin.

¶10            Webster’s causation expert, David Talan, M.D., testified that
Coumadin-induced necrosis may be slowed or stopped in its early stages
but may cause irreversible tissue damage, and that Bettie’s breast wound
would likely necessitate a mastectomy by September 20, 2010. He also
testified that he, like Dr. Wilson, believed that Bettie’s thigh wound was
caused by the Coumadin. He further testified that Bettie “ultimately died
of complications that started and were directly related to her Coumadin-
induced skin necrosis of her left hip.” He testified that he did not believe
the thigh wound would have developed had the Coumadin been stopped
on September 20, 2010, and not reintroduced:

      Q:     . . . If -- do you have an opinion, again, that you can
             express to a reasonable degree of medical probability
             if the Coumadin had been stopped on September 20,
             2010, would the left hip lesion have ever developed?
      A:     And it wasn’t reintroduced?
      Q:     Right.
      A:     No. I don’t think it would have developed.

¶11             After Webster rested his case, Wang moved for partial
judgment as a matter of law under Rule 50, arguing that there was no causal
link between Bettie’s death and any alleged negligence occurring after
September 20, 2010. The court determined that Dr. Talan “indicat[ed] that
as of September 20, 2010, there would have been damage no matter what,”
and that “the jury should not be allowed to speculate as to treatment offered
after September 20th, 2010.” The superior court therefore granted the
motion for judgment as a matter of law “with regard to the claims of
negligence after 9/20/2010” and denied Webster’s motion for
reconsideration. The court promptly informed the jury that “the Court has
made a legal ruling that the only conduct by defendants you are to consider
is conduct occurring on or before September 20, 2010.” The court reiterated
in the final instructions that: “The only conduct by Ying Wang, M.D., now
at issue is that which occurred on September 20, 2010. In your deliberations
you must not consider any conduct by Ying Wang, M.D., after September
20, 2010.”



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                      WEBSTER v. WINDSONG et al.
                         Decision of the Court

¶12            With respect to damages, the court ruled that Webster could
not introduce testimony regarding Bettie’s pain and suffering, which he had
argued would demonstrate the harm that her statutory survivors incurred
from observing her lingering death. The court stated that it was “limiting
the testimony” to “those elements resulting from [Bettie’s] death, in other
words, from the point of her death.” The court explained that though
Webster “c[ould] elicit testimony regarding the relationship, the visits, the
time spent[,] . . . . I don’t think that any testimony with regard to medical
procedures, changing dressings, anything like that, would be permissible
from the family.”

¶13           The jury returned a defense verdict. Webster timely appeals.

                               DISCUSSION

I.     THE SUPERIOR COURT ERRED BY GRANTING THE
       DEFENDANTS’ RULE 50 MOTION BECAUSE DR. TALAN’S
       TESTIMONY SUPPORTS THE REASONABLE INFERENCE THAT
       BETTIE WOULD NOT HAVE DIED HAD DR. WANG
       DISCONTINUED COUMADIN CONSISTENT WITH THE
       STANDARD OF CARE AFTER SEPTEMBER 20, 2010.

¶14           Webster contends that the superior court erred by granting
judgment as a matter of law as to any alleged negligence occurring after
September 20, 2010, and that the jury was improperly instructed not to
consider any such negligence. We review de novo both the grant of
judgment as a matter of law, and the question of whether a jury instruction
correctly states the law. Glazer v. State, 237 Ariz. 160, 167, ¶ 29 (2015); A
Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515,
533, ¶ 50 (App. 2009).

¶15            Rule 50 provides that “[i]f during a trial by jury a party has
been fully heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that issue, the court may
determine the issue against the party.” Such relief should be granted when,
taking the evidence in the light most favorable to the nonmovant, there is
no issue of fact and the movant is entitled to relief as a matter of law.
Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 302, ¶ 6 (App. 1999);
Glazer, 237 Ariz. at 167, ¶ 29. Judgment as a matter of law is appropriate
“only when the facts presented in support of a[n issue] have so little
probative value that reasonable people could not find for the claimant.”
Monaco, 196 Ariz. at 302, ¶ 6.



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                      WEBSTER v. WINDSONG et al.
                         Decision of the Court

¶16            A medical-malpractice plaintiff must present evidence that
the defendant failed to comply with the standard of care and that such
failure was the proximate cause of harm to the plaintiff. A.R.S. § 12-563.
With few exceptions not applicable here, the plaintiff must prove the
standard of care deviation and causation by expert testimony. Morell v. St.
Luke’s Med. Ctr., 27 Ariz. App. 486, 490 (1976); Barrett v. Harris, 207 Ariz.
374, 378, ¶ 12 (App. 2004). Causation is a question for the jury “unless
reasonable persons could not conclude that a plaintiff had proved this
element.” Barrett, 207 Ariz. at 378, ¶12. A plaintiff “may prove proximate
causation by presenting facts from which a causal relationship may be
inferred, but the [plaintiff] cannot leave causation to the jury’s speculation.”
Salica v. Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 419, ¶ 16 (App.
2010).

¶17           Webster presented sufficient evidence that Dr. Wang’s post-
September 20 Coumadin decisions fell below the standard of care.
Dr. Wilson specifically testified that Dr. Wang should have discontinued
the medication on September 20 and 24, and should not have resumed it on
September 28. Further, Webster presented sufficient evidence that Bettie
died as a result of the thigh wound and that the thigh wound was caused
by treatment she received after September 20: Dr. Talan testified that he did
not believe the thigh wound would have developed if the Coumadin had
been discontinued on September 20 “[a]nd it wasn’t reintroduced.”
(Emphasis added.) We cannot say that no reasonable person could infer
from that statement that Bettie died as the result of Dr. Wang’s post-
September 20 decisions. The jury could reasonably have concluded from
Dr. Talan’s testimony that Bettie died because Coumadin was administered
after September 20.1

¶18           Accordingly, the court erred by granting the defendants’
motion for Rule 50 relief and by instructing the jury in accordance with that
ruling. The issue of the defendants’ liability for Dr. Wang’s post-September
20 conduct should have been submitted to the jury.

¶19          We note also that the court’s division of the tort of medical
negligence into individual, daily events of liability (for which a deviation
from the standard of care, or negligence, and causation must coincide) was

1     The defendants point out on appeal that before trial, the court
precluded Dr. Talan from testifying about causation related to the
Coumadin reintroduction because that opinion was late-disclosed. But the
defendants did not object to the relevant testimony at trial.



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                      WEBSTER v. WINDSONG et al.
                         Decision of the Court

not necessary as a matter of law. Rule 50 permits the court to determine
whether there exists “legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue.” Here, the “issue” was whether
there was sufficient evidence that negligence committed after September 20
caused Bettie’s death — not whether an overall pattern of negligence existed.
Assuming that the court was correct concerning the absence of causation
evidence, it should only have instructed the jury of that ruling. Even if the
post-September 20 conduct could not be found to have caused Bettie’s
death, the conduct was relevant to the question of whether Dr. Wang’s
continuing decision to administer Coumadin (which began before
September 20) constituted negligence. By instructing the jury that it could
not consider conduct occurring after September 20 for any reason, the court
(1) exceeded the grounds for its own ruling, (2) prevented the jury from
considering the totality of the evidence bearing on standard of care, and (3)
may have signaled to the jury (improperly) that no conduct after September
20 amounted to negligence at all. Because there was evidence that post-
September 20 conduct violated the standard of care on a continuing basis,
this instruction improperly invaded the province of the jury.

II.    THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY
       PRECLUDING EVIDENCE OF BETTIE’S PAIN AND SUFFERING.

¶20           Webster next contends that the superior court erred by
precluding evidence of Bettie’s pain and suffering. We review the court’s
evidentiary rulings for abuse of discretion. Cal X-Tra v. W.V.S.V. Holdings,
L.L.C., 229 Ariz. 377, 404, ¶ 89 (App. 2012).

¶21           Webster relies on Girouard v. Skyline Steel, Inc., 215 Ariz. 126
(App. 2007), to argue that evidence regarding the “ten-month sequence of
Bettie’s demise” was admissible to show that her manner of death caused
her survivors to suffer additional damages. Girouard recognized that
“[f]rom the standpoint of the survivor who must be compensated for the
harrowing experience of losing a loved one, death may not simply be the
cessation of the decedent’s life,” but “may in fact encompass the scope of
the manner in which the decedent’s life ceased.” Id. at 130, ¶ 16. But
Girouard was expressly limited to anguish suffered as a result of “the
manner of a decedent’s death . . . as opposed to anguish caused by
knowledge of premortem pain suffered by the decedent.” Id. at 130-31, ¶
17. Girouard explained:

       [C]ompensation in a wrongful death action is limited to
       “injury resulting from the death.” A.R.S. 12-613 (emphasis
       supplied). Accordingly, . . . a survivor may not recover for


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                     WEBSTER v. WINDSONG et al.
                        Decision of the Court

      mental anguish resulting from the negligent acts of the
      defendant prior to the decedent’s death . . . . Nor may a
      survivor recover for mental anguish resulting from actual or
      perceived pain and suffering experienced by the decedent
      during the time leading up to death because such period of
      time precedes the death of the decedent.

Id. at 132, ¶ 19. Under Girouard, we discern no abuse of discretion in the
superior court’s ruling limiting evidence regarding Bettie’s pain and
suffering to that related to her actual death, not her slow decline.

                             CONCLUSION

¶22          For the foregoing reasons, we affirm the superior court’s
ruling regarding the evidence of Bettie’s pain and suffering, but we
otherwise reverse. We remand for proceedings consistent with this
decision.




                          AMY M. WOOD • Clerk of the Court
                          FILED:    JT


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