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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 ERNESTINE GRAYSON, Plaintiff/Appellant,

                                         v.

               BANNER HEALTH, et al., Defendants/Appellees.

                              No. 1 CA-CV 17-0577
                                FILED 10-11-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-094248
               The Honorable David M. Talamante, Judge

              JURISDICTION ACCEPTED; RELIEF DENIED


                                    COUNSEL

The Roll Law Office, PLLC, Phoenix
By Guy P. Roll
Counsel for Plaintiff/Appellant

Quintairos, Prieto, Wood & Boyer, PA, Phoenix
By Andrew E. Rosenzweig, Rita J. Bustos, Michael F. Tamm
Counsel for Defendant/Appellee Banner Health

Crawford & Kline, PLC, Tempe
By Peter G. Kline
Co-Counsel for Defendants/Appellees Patel
                        GRAYSON v. BANNER, et al.
                           Decision of the Court

Jones, Skelton & Hochuli, PLC, Phoenix
By Eileen Dennis GilBride
Co-Counsel for Defendants/Appellees Patel

Broening Oberg Woods & Wilson, PC, Phoenix
By James R. Broening, Megan E. Gailey, Alicyn M. Freeman
Counsel for Defendants/Appellees Lutgen



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1            Ernestine Grayson appeals the dismissal of her medical
malpractice complaint for failure to file an expert medical opinion affidavit
pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2603(F) (2018).1
For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Grayson sued Banner Health d/b/a Banner Thunderbird
Medical Center ("Banner"), Dr. Sundeep S. Patel and Jeanine D. Lutgen,
P.A., after Patel performed an aortic valve replacement on Grayson at
Banner. The surgery involved hundreds of tiny surgical needles because
each suture required a separate needle. At the end of the surgery, one
needle had not been accounted for. An x-ray revealed its general location
in the surgical field inside Grayson's chest. Patel later averred that he spent
"significant time" looking for the needle without success before he
determined that it was in Grayson's best interest to close the wound and
resuscitate her.

¶3            In her complaint, Grayson alleged the defendants breached
the "standard of care by improperly allowing a retained surgical instrument
. . . to remain" in her body. Grayson further alleged that because the
defendants' negligence is "obvious," she "does not need to provide medical


1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


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                       GRAYSON v. BANNER, et al.
                          Decision of the Court

expert testimony of the standard of care and breach thereof under the
doctrine of res ipsa loquitur."

¶4              The defendants moved to compel Grayson to file a
preliminary expert opinion affidavit pursuant to A.R.S. § 12-2603(F).
Grayson objected, arguing she did not need to provide expert testimony
regarding standard of care or breach because retention of a surgical needle
in the patient's body following surgery is negligence within the realm of
common knowledge. The superior court ordered Grayson to submit an
expert affidavit to support her complaint. After Grayson failed to submit
the affidavit, the court dismissed her complaint without prejudice pursuant
to § 12-2603(F).

¶5            Grayson timely appealed.

                              JURISDICTION

¶6            We have an independent duty to determine whether we have
appellate jurisdiction, even when the parties do not raise a jurisdictional
question. Baker v. Bradley, 231 Ariz. 475, 478, ¶ 8 (App. 2013). The superior
court dismissed Grayson's complaint without prejudice. A dismissal
without prejudice generally is not appealable because it is not a final
judgment and does not preclude a party from refiling the complaint.
Workman v. Verde Wellness Center, Inc., 240 Ariz. 597, 600, ¶ 7 (App. 2016).
For that reason, A.R.S. § 12-2101(A)(1) (2018) does not afford us jurisdiction
of Grayson's appeal.

¶7            A dismissal without prejudice can be appealable under § 12-
2101(A)(3) when the order effectively determines the action and prevents it
from being refiled, such as when the statute of limitations has run.
Although it appears the statute of limitations has run on Grayson's medical
malpractice claim, Arizona's savings statute, A.R.S. § 12-504(A) (2018),
would allow her to commence a new action within six months of the
dismissal. See Garza v. Swift Transp. Co., Inc., 222 Ariz. 281, 284, ¶¶ 15-16
(2009). Accordingly, the judgment here is not appealable under § 12-
2101(A)(3) because it did not effectively determine the action and prevent
it from being refiled.

¶8             Although we lack appellate jurisdiction, this court properly
can review the judgment by exercising special action jurisdiction. See
Villares v. Pineda, 217 Ariz. 623, 624, ¶ 10 (App. 2008) ("Special action
jurisdiction is appropriate where there is no 'equally plain, speedy, and
adequate remedy by appeal.'") (quoting Ariz. R.P. Spec. Act. 1); see also
Danielson v. Evans, 201 Ariz. 401, 411, ¶ 35 (App. 2001) (sua sponte accepting


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                        GRAYSON v. BANNER, et al.
                           Decision of the Court

special action jurisdiction after finding appellate jurisdiction lacking).
Because Grayson has no speedy or adequate remedy by appeal, we elect to
exercise discretionary review, treating Grayson's appeal as a petition for
special action and accepting special action jurisdiction. See A.R.S. § 12-
120.21(A)(4) (2018) (court may assume special action jurisdiction "without
regard to its appellate jurisdiction").

                                 DISCUSSION

¶9            Grayson contends the superior court erred in requiring her to
present a preliminary expert affidavit in support of her medical malpractice
claim. We review an order requiring a preliminary expert affidavit for an
abuse of discretion. See Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 128,
¶ 14 (App. 2008).

¶10            A medical malpractice claim requires proof of a breach of the
applicable standard of care and that the breach caused the plaintiff's
injuries. See Seisinger v. Siebel, 220 Ariz. 85, 94, ¶ 32 (2009); see also A.R.S. §
12-563 (2018). "Ordinarily, expert medical testimony is required to establish
proximate cause and make out a prima facie case of medical malpractice
unless a causal relationship is readily apparent to the trier of fact." Gregg v.
Nat'l Med. Health Care Servs., Inc., 145 Ariz. 51, 54 (App. 1985); see also Peacock
v. Samaritan Health Serv., 159 Ariz. 123, 126 (App. 1988) (exception to general
rule requiring expert medical testimony when "negligence is so grossly
apparent that a layman would have no difficulty in recognizing it")
(quotation and citation omitted). Generally, a court will not excuse the need
for expert testimony unless the plaintiff's injury is completely unrelated to
the type of care rendered, see, e.g., Carranza v. Tucson Med. Ctr., 135 Ariz.
490, 492 (App. 1983) (patient's leg burned during heart surgery), or the
injury falls far outside the normal risks of receiving medical care, see, e.g.,
Tiller v. Von Pohle, 72 Ariz. 11, 14 (1951) (surgeon left "a cloth sack of
considerable size" in patient's abdomen).

¶11          Grayson argues that, under the doctrine of res ipsa loquitur, the
defendants' decision to close the surgical incision before they located and
removed the missing needle falls within the realm of common knowledge
and therefore does not require expert testimony.

¶12             Res ipsa loquitur is a rule of circumstantial evidence that allows
a plaintiff to present the issue of negligence to a jury when the alleged injury
would not normally occur in the absence of negligence. Schneider v. City of
Phoenix, 9 Ariz. App. 356, 359 (1969); Lowrey v. Montgomery Kone, Inc., 202
Ariz. 190, 192, ¶ 6 (App. 2002). The doctrine permits a trier of fact to draw



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                       GRAYSON v. BANNER, et al.
                          Decision of the Court

an inference of negligence when (1) the injury is "of a kind that ordinarily
does not occur in the absence of negligence"; (2) the injury is "caused by an
agency or instrumentality subject to the control of the defendant"; and (3)
the claimant is not "in a position to show the particular circumstances that
caused the offending agency or instrumentality to operate to her injury."
Lowrey, 202 Ariz. at 192, ¶ 7.

¶13           But the doctrine of res ipsa loquitur applies in a medical
malpractice case "only when it is a matter of common knowledge among
laymen or medical [personnel], or both, that the injury would not ordinarily
have occurred if due care had been exercised." Ward v. Mount Calvary
Lutheran Church, 178 Ariz. 350, 355 (App. 1994) (quotation and citation
omitted). In other words, the doctrine does not change the general rule that
expert testimony is required "to establish a departure from the relevant
standard of care except when negligence is so clearly apparent that a
layman would recognize it." Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz.
317, 321, ¶¶ 12-13 (App. 2008), disapproved on other grounds by Rasor v. Nw.
Hosp., LLC, 243 Ariz. 160 (2017).

¶14           Grayson's complaint was premised on the contention that the
"retention" of the needle during surgery was malpractice. Her complaint
alleged the defendants breached the "standard of care by improperly
allowing a retained surgical instrument . . . to remain" in her body. In her
objection to Banner's expert witness statement, Grayson contended that her
"claim results from the retention of a surgical needle during her aortic valve
replacement." In her response to Patel's motion to require her to present
expert testimony, Grayson argued that her "medical malpractice claim
results from the retention of a surgical needle during her aortic valve
replacement."

¶15           In a declaration submitted with his motion to compel Grayson
to file an expert affidavit, Patel stated that the surgery was a "lengthy
operation" in which "time is of the essence." Patel opined that the benefit to
Grayson in spending more time locating the needle was outweighed by "the
risk of complications" in continuing to search for the needle. Additionally,
he opined that it was not a "deviation from the standard of care for a needle
to be retained" and that he "complied with all applicable standards of care
in performing" Grayson's surgery. Patel further opined that given where it
lay in Grayson's chest, the needle would not injure Grayson.

¶16          The superior court did not abuse its discretion by requiring
Grayson to present an expert affidavit because the negligence she alleged –
the defendants' decision to end the surgery knowing a needle had been left


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                       GRAYSON v. BANNER, et al.
                          Decision of the Court

behind in her body – was not so apparent that a layperson could likely
recognize it without the assistance of expert testimony. See Peacock, 159
Ariz. at 126. Put differently, once the needle was lost, how best to proceed
from a medical standpoint would not be apparent to a layperson without
the benefit of expert testimony. For this reason, the superior court did not
abuse its discretion by concluding it would not be clear to a layperson that
the injury Grayson alleged she suffered from the defendants' decision to
leave the needle in her body was "a kind that ordinarily does not occur in
the absence of negligence." Lowrey, 202 Ariz. at 192, ¶ 7.

¶17           In her reply brief on appeal, Grayson argues for the first time
that the defendants committed negligence by losing the needle in the first
place: "The typical layperson . . . [can] understand the act of losing track of
something in the course of performing a task is a mistake." We generally
will not consider issues first raised in a reply brief, and we decline to do so
here. See Conant v. Whitney, 190 Ariz. 290, 293 (1997).

¶18            Because Grayson failed to establish the first element of res ipsa
loquitur as to Patel's decision to close the wound without further effort to
search for the lost needle, the superior court did not abuse its discretion by
requiring Grayson to submit a preliminary expert opinion affidavit. When
Grayson failed to submit the required affidavit, the court properly
dismissed her complaint, without prejudice, under § 12-2603(F).

                               CONCLUSION

¶19           For the foregoing reasons, we accept jurisdiction of this
appeal as a special action but deny relief.




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




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