                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


      BARBARA BARNA BROWN, Plaintiff/Appellant/Cross-Appellee,

                                         v.

    JOHN C. LINCOLN HEALTH NETWORK, an Arizona Non-Profit
            corporation, Defendant/Appellee/Cross-Appellant.

                              No. 1 CA-CV 14-0814
                                FILED 5-17-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2009-019514
                The Honorable Michael D. Gordon, Judge

                                   AFFIRMED


                                     COUNSEL

Barbara Barna Brown, Phoenix
Plaintiff/Appellant/Cross-Appellee

Quintairos, Prieto, Wood & Boyer, P.A., Phoenix
By Andrew E. Rosenzweig, Rita J. Bustos
Counsel for Defendant/Appellee/Cross-Appellant
                         BROWN v. JCL NETWORK
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1           Barbara Brown (“Brown”) appeals the summary judgment
granted to John C. Lincoln Health Network (“JCL”). For the following
reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

A. Prior Litigation

¶2             Brown’s mother, Sally S. Barna, died while in a hospital
owned by JCL. The death certificate stated that the immediate cause of
death was cardiorespiratory arrest, caused by “multi-organ failure” and
“stomach perforation.” Brown filed a complaint alleging JCL was liable for
Barna’s wrongful death as a result of medical malpractice under a variety
of theories. After Brown filed a motion for partial summary judgment and
JCL filed a cross-motion for summary judgment, the superior court granted
JCL’s motion.

¶3           Brown filed an appeal after her motion for new trial was
denied. On appeal, we found that the superior court properly dismissed
the medical malpractice claims based on lack of informed consent and
inadequate patient care, but found the court should not have dismissed her
medical battery claim for lack of consent. Brown v. John C. Lincoln Health
Network, 1 CA-CV 11-0230, 2012 WL 1698162, at *1, ¶ 1 (Ariz. App. May 15,
2012) (mem. decision). As a result, we affirmed the judgment in part and
remanded the medical battery claim for further proceedings. Id. at *4,
¶ 17.

B. This Litigation

¶4           After the mandate was issued and the matter was remanded,
JCL filed an unsuccessful motion for summary judgment, arguing that
because this was a wrongful-death claim, an expert witness was required




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                            Decision of the Court

to prove that the battery was the cause of death.1 JCL then filed another
summary-judgment motion, arguing that it was entitled to judgment as a
matter of law because Brown, in her capacity as her mother’s power of
attorney, had consented to the medical procedure she claims resulted in her
mother’s death. Brown responded, and during the oral argument admitted
she had consented to the medical procedure. She argued, however, she had
been falsely told there was a medical emergency requiring the medical
procedure and, as a result, her consent was ineffective because it had been
procured through misrepresentations and under duress.

¶5           After finding that there was “no credible evidence that
[Brown]’s consent was invalid,” and that she needed, but had not offered,
medical-expert testimony to demonstrate support for her theories that her
consent was vitiated by JCL’s action, the superior court granted JCL
summary judgment. Brown then filed an unsuccessful motion for new trial,
and this appeal from the final judgment of dismissal and costs. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(1).2

                                 DISCUSSION

¶6           Brown argues the superior court erred by granting summary
judgment to JCL. She contends that her consent to the medical procedure
was procured through misrepresentations and by subjecting her to duress,
which precluded summary judgment.

¶7             We review a grant of summary judgment de novo, viewing
the facts in the light most favorable to the party opposing the motion. KB
Home Tucson, Inc. v. Charter Oak Fire Ins. Co., 236 Ariz. 326, 329, ¶ 14, 340
P.3d 405, 408 (App. 2014) (citation omitted). We are mindful that summary
judgment should be granted when the facts supporting the claim or defense
“have so little probative value, given the quantum of evidence required,
that reasonable people could not agree with the conclusion advanced by the
proponent of the claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309,
802 P.2d 1000, 1008 (1990). And we will affirm the grant of a motion for
summary judgment if it was correct for any reason supported by the record,
even if not specifically considered by the trial court. KB Home, 236 Ariz. at
329, ¶ 14, 340 P.3d at 408.




1   JCL challenges the denial in its cross-appeal.
2   We cite to the current version of the statute unless otherwise noted.


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                            Decision of the Court

¶8            If the death of a person is caused by a wrongful act, the party
responsible for the act remains liable to an action for damages. A.R.S. § 12-
611; Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 196, ¶ 7,
273 P.3d 645, 648 (2012) (citation omitted). A wrongful-death action can be
brought by the surviving child of the deceased person for, and on behalf of
the surviving children. A.R.S. § 12-612(A). Damages for wrongful death
can include the decedent’s prospective earning capacity; the loss of
companionship, comfort and guidance caused by the death; and the
survivor’s emotional suffering. Walsh, 229 Ariz. at 196, ¶ 8, 273 P.3d at 648.

¶9            A person can be liable for the wrongful act of battery “if the
[person] intentionally engages in an act that results in harmful or offensive
contact with the person of another.” Duncan v. Scottsdale Med. Imaging, Ltd.,
205 Ariz. 306, 309, ¶ 9, 70 P.3d 435, 438 (2003) (relying on Restatement
(Second) of Torts §§ 13, 18 (1965) (hereafter “Restatement”)). A health care
provider can commit a battery on a patient if a procedure is performed on
the patient without his or her consent. Id. The battery claim can be
defeated, however, “when consent is given.” Id.

A. Misrepresentation

¶10           Brown argues that JCL called her and falsely represented that
there was a medical emergency requiring her consent to the use of a feeding
tube, which later perforated Barna’s stomach, resulting in her death. As a
result, and citing to Duncan and Restatement § 892(B), Brown contends
JCL’s misrepresentation of a medical emergency rendered her consent
ineffective.

¶11            Although both Duncan, 205 Ariz. at 311, ¶ 20, 70 P.3d at 440
(“[I]f a patient’s consent is obtained by a health care provider’s fraud or
misrepresentation, a cause of action for battery is appropriate”), and
Restatement § 892(B)(2)3 may support the proposition that consent that is
obtained by fraud or misrepresentation is actionable, no evidence was


3   Restatement § 892(B)(2) states:

         If the person consenting to the conduct of another is induced
         to consent by a substantial mistake concerning the nature of
         the invasion of his interests or the extent of the harm to be
         expected from it and the mistake is known to the other or is
         induced by the other’s misrepresentation, the consent is not
         effective for the unexpected invasion or harm.



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                        BROWN v. JCL NETWORK
                          Decision of the Court

presented to the superior court that JCL purposefully lied to, or misled,
Brown that there was a medical emergency requiring the immediate
insertion of a feeding tube. Moreover, there was no evidence presented to
the court that JCL mistakenly determined there was a medical emergency
warranting the procedure, JCL knew of the mistake, or JCL tried to induce
Brown’s consent based on a misrepresentation.

¶12            Brown, however, attempted to argue that the medical records
and the death certificate supported her argument. But, whether there was
not a medical emergency in this case, as she argued, is not “something that
persons unskilled [in medicine] are capable of understanding” without the
opinion of an expert. Rudolph v. Ariz. B.A.S.S. Fed’n, 182 Ariz. 622, 626, 898
P.2d 1000, 1005 (App. 1995). Unlike common events that citizens would
recognize as an emergency, such as a gunshot wound, compound fracture,
or visible epileptic seizure, to refute the claim in this case that there was a
medical emergency that required the procedure, Brown needed to
overcome the evidence contained in her mother’s hospital chart for April
15, 2007 that demonstrated this emergency: “[patient] went into acute
respiratory failure and required intubation and was transferred to the
intensive care unit (ICU) for further care. The patient requires PEG tube
placement for sheeting due to her multiple episodes of aspiration
pneumonia previously and her current episode.” Brown needed, but did
not produce an affidavit or testimony from a medical expert who would
testify that the information in the medical records did not support the claim
that there was a medical emergency or that there was an immediate need
for the feeding tube. And in the absence of expert medical evidence that
there was no medical emergency, there was no genuine issue of material
fact to preclude the grant of summary judgment. See Riedisser v. Nelson, 111
Ariz. 542, 544, 534 P.2d 1052, 1054 (1975) (if the matter is not one “of
common knowledge among laymen; expert testimony is required”); see also
Adams v. Amore, 182 Ariz. 253, 255, 895 P.2d 1016, 1018 (App. 1994) (“The
function of an expert witness is to provide testimony on subjects that are
beyond the common sense, experience and education of the average juror.”)
(internal quotation marks and citation omitted). Consequently, the
superior court did not err in finding Brown’s consent to the procedure had
not been procured by fraud or misrepresentation.

B. Duress

¶13          Brown also contends her consent was obtained under duress.
She argues that because JCL called her at 8:56 a.m., advised her about the
medical emergency, the need for the medical procedure, as well as the



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                           Decision of the Court

consequences of withholding consent, her consent was secured under
duress. We disagree.

¶14            Consent given under duress cannot be effective. Restatement
§ 892(B)(3). The Restatement provision does not define duress, but
describes it as the “constraint of another’s will by which [s]he is compelled
to give consent when [s]he is not in reality willing to do so.” Restatement §
892(B) cmt. j. Moreover, although subsection (3) “does not attempt to define
the type of duress to which it applies,” comment j notes that to render
consent ineffective, generally the duress must be “quite drastic . . . and that
clearly and immediately amount[s] to an overpowering of the will,” and
could include “force or threats of force against the person consenting . . . as
well as immediate threats of that force.”                        Restatement
§ 892(B) cmt. j; see also Black’s Law Dictionary (10th ed. 2014) (broadly
defining duress as “a threat of harm made to compel a person to do
something against his or her will or judgment; esp., a wrongful threat made
by one person to compel a manifestation of seeming assent by another
person to a transaction without real volition.”).

¶15            There is no evidence that JCL used duress to secure Brown’s
consent for the medical procedure. There is no evidence suggesting force
or threats of force, whether against her or her mother. There is no evidence
that she was precluded from talking to her mother’s doctor, if she had
wanted, before giving her consent. The only evidence for the superior court
to consider was the call to Brown that there was a medical emergency
warranting a medical procedure and of the consequences that might result
from failing to undergo that procedure. The call, without more, cannot
constitute duress. And because there was no evidence of wrongdoing by
JCL, the court did not err by granting summary judgment to JCL.

C. Motion for New Trial

¶16           Brown also argues the superior court erred by denying her
motion for a new trial. She argues that her due-process rights were violated
by “[r]equiring [her] to have an expert witness for the lack of consent
component at this late stage of [the] litigation, without notice.” We
disagree.

¶17            We review the denial of a motion for new trial for an abuse of
discretion. State v. Larin, 233 Ariz. 202, 206, ¶ 6, 310 P.3d 990, 994 (App.
2013) (citation omitted); McBride v. Kieckhefer Assocs., Inc., 228 Ariz. 262, 266,
¶ 16, 265 P.3d 1061, 1065 (App. 2011). A violation of due process is a




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                           Decision of the Court

question of law that we review de novo. In re MH 2006-002044, 217 Ariz.
31, 33, ¶ 7, 170 P.3d 280, 282 (App. 2007).

¶18           In arguing the superior court abused its discretion by denying
her motion for new trial, Brown challenged the grant of summary
judgment, which we have affirmed. She then argued that the ruling
requiring her to have an expert violated her due-process rights. Brown
omitted, however, that it was her burden to demonstrate with some
admissible evidence that there really was no medical emergency
warranting the medical procedure to create a genuine issue of material fact
that her consent was ineffective. See Nat.’l Bank of Ariz. v. Thruston, 218 Ariz.
112, 119, ¶ 26, 180 P.3d 977, 984 (App. 2008) (citation omitted). She had to
overcome the evidence JCL had submitted, but did not.

¶19            Moreover, even though Brown is representing herself, she
had to comply with the procedural rules to present admissible evidence to
challenge JCL’s evidence. See Kelly v. NationsBanc Mortg. Corp., 199 Ariz.
284, 287, ¶ 16, 17 P.3d 790, 793 (App. 2000) (noting that it is well-established
that a party who conducts a case without a lawyer is held to the standards
expected of a lawyer). She needed to present more than her conclusory
argument that the absence of the word “emergency” in the hospital report,
combined with the death certificate, could be used to infer there was no
medical emergency and, as a result, her consent to the procedure was
falsely procured.      She needed an expert to explain that, despite the
language of the report, there was no medical emergency warranting the
procedure. See Riedisser, 111 Ariz. at 544, 534 P.2d at 1054. And it is only
with a medical expert that the superior court, or other fact finder, could
determine under the circumstances there was no medical emergency and
Brown had been misled to consent to the medical procedure.

¶20          Because the law was well established that Brown had to
counter JCL’s motion with admissible evidence in order to demonstrate the
existence of a genuine issue of material fact, there was no due process
violation. Consequently, the court did not abuse its discretion by denying
her motion for new trial.4




4Because we are affirming the grant of summary judgment, JCL’s cross-
appeal is moot. See Portley v. Portley, 134 Ariz. 492, 492, 657 P.2d 905, 905
(App. 1982).


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               BROWN v. JCL NETWORK
                 Decision of the Court

                     CONCLUSION

¶21   Based on the foregoing, we affirm the judgment.




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