                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


         SHAUNA R. REES, a married woman, Plaintiff/Appellant,

                                        v.

  HOSPITAL DEVELOPMENT OF WEST PHOENIX, INC., dba WEST
VALLEY HOSPITAL and ABRAZO HEALTH CARE, Defendants/Appellees.

                             No. 1 CA-CV 13-0581
                              FILED 10-30-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2010-021657
             The Honorable Sally Schneider Duncan, Judge

   AFFIRMED IN PART; REVERSED IN PART AND REMANDED


                                   COUNSEL

O’Steen & Harrison PLC, Phoenix
By Paul D. Friedman
Counsel for Plaintiff/Appellant

The Checkett Law Firm PLLC, Scottsdale
By John J. Checkett and Paul J. Sheston
Counsel for Defendants/Appellees
                           REES v. HOSPITAL
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Jon W. Thompson and Judge Diane M. Johnsen joined.


K E S S L E R, Judge:

¶1            Plaintiff/Appellant Shauna R. Rees (“Rees”) appeals the
superior court’s summary judgment for Defendant/Appellee Hospital
Development of West Phoenix, Inc. dba West Valley Hospital and Abrazo
Health Care (collectively “the Hospital”). For the following reasons, we
reverse the summary judgment and remand for further proceedings, but
affirm the superior court’s ruling allowing the Hospital to name a non-party
at fault.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2           Rees arrived at the Hospital’s emergency department at 12:35
a.m., complaining of stomach pain and nausea. She was admitted to the
Hospital as a medical/surgical patient with a diagnosis of small bowel
obstruction at 4:17 a.m. The medical/surgical department did not have a
bed available for Rees and she was kept in the emergency department for
approximately ten hours.

¶3             According to Rees, the Hospital’s nursing staff and the
hospitalist assigned to care for her, Dr. Dumlao, did not properly assess or
examine her, did not appropriately respond to a dangerous change in her
condition, and failed to keep her surgeon, Dr. Muddaraj, apprised of her
condition. In particular, Rees alleges that emergency department nurse
Lynn Major failed to assess her vital signs for several hours, and did not
inform Dr. Muddaraj when she observed that Rees was pale, diaphoretic,
and vomiting. Rees also alleges medical/surgical unit nurse Karen Bruns
did not inform either Dr. Dumlao or Dr. Muddaraj when she observed that
Rees no longer had bowel sounds and had become lethargic and confused.

¶4            When Dr. Muddaraj arrived to see Rees that afternoon, she
was restless and unresponsive with a thready pulse and rapid heart rate.
He immediately took her to surgery. When Dr. Muddaraj opened Rees’
abdomen, he observed that her bowel was ischemic and gangrenous. He
also recognized that Rees had become septic from the gangrenous bowel.



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                           REES v. HOSPITAL
                           Decision of the Court

¶5            Dr. Muddaraj relieved the ischemia by untwisting the bowel
and removed the portion that was irreversibly gangrenous, leaving Rees
with only three to four feet of bowel. As a result, Rees suffers from “short-
gut syndrome,” which impairs her bowel habits and interferes with her
ability to absorb nutrients. The sepsis also caused Rees lung damage and
to be temporarily placed on a ventilator postoperatively.

¶6             Rees filed this action for medical malpractice, alleging the
Hospital’s nursing staff provided negligent care by failing to properly
monitor Rees and keep her surgeon apprised of her condition, resulting in
permanent injury.1 After the Hospital deposed Dr. Dumlao, it identified
her as a non-party at fault. Rees moved to strike the designation as
untimely or, in the alternative, asked for leave to amend her complaint to
allege that the Hospital was vicariously liable for Dr. Dumlao’s negligence.
The court denied Rees’ motion to strike, but granted her leave to file an
amended complaint. Rees alleged Dr. Dumlao had acted as the Hospital’s
ostensible agent and the Hospital should be held liable for her negligent
treatment of Rees under a theory of vicarious liability.

¶7             The Hospital moved for summary judgment on causation,
arguing that because Rees had not disclosed a medical causation expert she
could not establish when her bowel became ischemic or whether she would
have suffered less damage absent the alleged negligence. Rees argued she
had proffered sufficient causation evidence to raise a question of fact,
relying on Dr. Muddaraj’s testimony that the longer sepsis is untreated the
worse it becomes and his opinion that if he had conducted the surgery
earlier, Rees would have experienced less extensive damage. She also
argued the Hospital’s failure to retain all of Rees’ medical records made it
impossible to know Rees’ true condition at various points during the day
of her surgery, and that a jury should be given an opportunity to infer that
the missing evidence would have been harmful to the Hospital. The court
granted judgment for the Hospital, ruling Dr. Muddaraj’s testimony was
insufficient to create a material question of fact regarding causation.

¶8          Rees timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A) (Supp. 2013).2




1 Rees’ complaint also alleged claims against other defendants. Those
claims were dismissed and are not at issue in this appeal.
2 Unless otherwise noted, we cite the current version of all statutes when no

material revisions have occurred.


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                            REES v. HOSPITAL
                            Decision of the Court

                                    ISSUES

¶9            Rees argues the superior court erred by granting summary
judgment for the Hospital on the basis that she failed to provide adequate
causation evidence to create a material question of fact for the jury. She also
contends the superior court abused its discretion by allowing the Hospital
to belatedly name Dr. Dumlao as a non-party at fault.

                                DISCUSSION

I.     The Superior Court Erred by Granting Summary Judgment for the
       Hospital on the Issue of Causation

¶10           We review the entry of summary judgment de novo, viewing
the evidence and reasonable inferences therefrom in the light most
favorable to the party opposing the motion. Duncan v. Scottsdale Med.
Imaging, Ltd., 205 Ariz. 306, 308, ¶ 2, 70 P.3d 435, 437 (2003). Summary
judgment is only appropriate when “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of
law.” Ariz. R. Civ. P. 56(a); see also Orme Sch. v. Reeves, 166 Ariz. 301, 309,
802 P.2d 1000, 1008 (1990) (explaining that summary judgment is proper “if
the facts produced in support of the claim . . . 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.”).

¶11           To establish a prima facie case against the Hospital, Rees was
required to show that the Hospital’s failure to follow the applicable
standard of care was the proximate cause of her injury. A.R.S. § 12-563
(2003). She contends the superior court erroneously determined that she
failed to proffer sufficient evidence to create a material question of fact
regarding whether the Hospital employees’ conduct caused her harm.

¶12             A defendant’s acts are the proximate cause of a plaintiff’s
injury only if they are a substantial factor in bringing about the harm and
the injury would not have occurred “but for” the defendant’s negligent
conduct. Barrett v. Harris, 207 Ariz. 374, 381, ¶ 26, 86 P.3d 954, 961 (App.
2004); see also Ontiveros v. Borak, 136 Ariz. 500, 505, 667 P.2d 200, 205 (1983).
Because “no man can say with absolute certainty what would have
occurred if the defendant had acted otherwise,” the question of causation
is “peculiarly for the jury.” Purcell v. Zimbelman, 18 Ariz. App. 75, 82–83,
500 P.2d 335, 342–43 (1972) (quoting Prosser, Law of Torts § 41, at 242 (4th
ed. 1971)). However, a court may grant summary judgment when a party
fails to demonstrate a material question of fact upon which a reasonable
jury could find causation, therefore entitling the party moving for summary


                                       4
                            REES v. HOSPITAL
                            Decision of the Court

judgment to a judgment as a matter of law. See Grafitti-Valenzuela v. City of
Phoenix, 216 Ariz. 454, 457, ¶ 7, 167 P.3d 711, 714 (App. 2007).

¶13            “Ordinarily, a plaintiff in a medical malpractice lawsuit must
prove the causal connection between an act or omission and the ultimate
injury through expert medical testimony, unless the connection is readily
apparent to the trier of fact.” Barrett, 207 Ariz. at 378, ¶ 12, 86 P.3d at 958.
To establish the requisite causal connection, the plaintiff’s expert is
generally required to testify as to probable causes of the plaintiff’s
injury. See Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546, 789 P.2d
1040, 1047 (1990) (recognizing that plaintiff satisfies burden by presenting
facts from which causal relationship may be inferred but cannot leave
causation to the jury’s speculation); Kreisman v. Thomas, 12 Ariz. App. 215,
218, 469 P.2d 107, 110 (1970) (noting “causation must be shown to be
[p]robable and not merely [p]ossible, and generally expert medical
testimony that a subsequent illness or disease ‘could’ or ‘may’ have been
the cause of the injury is insufficient.”).            However, under some
circumstances, a plaintiff’s expert may opine as to possible causes of an
injury if other evidence supports a causal connection. See Kreisman, 12 Ariz.
App. at 218, 469 P.2d at 110 (citing Arizona decisions that have “relaxed”
the general rule concerning expert medical testimony and “sustained
verdicts based upon expert testimony as to the [p]ossible cause, when there
is sufficient additional evidence indicating the specific causal
relationship.”).

¶14          Rees argues she satisfied this standard by offering Dr.
Muddaraj’s testimony that once Rees became pale and diaphoretic and
began vomiting, she was exhibiting signs of ischemia and “time was of the
essence” to address the ischemia and prevent the sepsis from progressing




                                       5
                            REES v. HOSPITAL
                            Decision of the Court

further.3 He further testified that the longer a patient is not treated, the
worse sepsis can become and opined that if Rees was exhibiting signs of
sepsis at 11:40 a.m., the infection increased throughout the day until he
performed surgery. Although Dr. Muddaraj was unable to say how quickly
Rees’ ischemia and sepsis progressed, or identify how much damage she
would have sustained if he had operated at a specific earlier time, he did
opine to a reasonable degree of medical probability that if he had been able
to operate on Rees earlier, the damage would have been less extensive.

¶15            A reasonable interpretation of this testimony is that the
severity of Rees’ injuries were increased, at least in part, by the delay in
performing the operation. Those injuries include both those resulting from
ischemia and those resulting from sepsis, such as the lung damage suffered
by Rees. When the evidence permits a finding that the defendant’s breach
of the standard of care increased the risk of harm or deprived the plaintiff
of a significant chance of a better recovery, it is for the jury to decide
whether the defendant’s conduct was a cause-in-fact of the plaintiff’s injury.
Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 606–08, 688 P.2d 605,
614–16 (1984) (finding a material question of fact where the plaintiff’s expert
testified there would have been a “‘substantially better chance’ of full
recovery had surgery been performed at once . . . [and] the longer the delay,
the greater the risk of residual injury.”); Vigil v. Herman, 102 Ariz. 31, 35,
424 P.2d 159, 163 (1967) (reversing summary judgment and finding
sufficient evidence of causation where an injury was permitted to progress
by defendant’s failure to act; “a jury might reasonably have concluded that
the subsequent development of plaintiff’s condition into a seriously


3 Rees also cites the portion of the Hospital’s disclosure statement that
indicated its expert would testify that Rees would have had a better
outcome if a surgeon had seen her at approximately 11 a.m. A disclosure
statement is not admissible evidence, see Taylor-Bertling v. Foley, 233 Ariz.
394, 400, ¶ 20, 313 P.3d 537, 543 (App. 2013) (stating that “while disclosure
statements may be admitted into evidence as party admissions, they are not
in and of themselves evidence.” (citing Ryan v. San Francisco Peaks Trucking
Co., 228 Ariz. 42, 47, ¶ 16, 262 P.3d 863, 868 (App. 2011))), and we therefore
do not consider it as part of our analysis, cf. Briskman v. Del Monte Mortgage
Co., 10 Ariz. App. 263, 266, 458 P.2d 130, 133 (1969) (holding that “[w]hile a
court must review the contents of supporting affidavits and depositions in
ruling upon a motion for summary judgment, only such matters stated
therein as would be admissible in evidence may properly be considered by
the court.”).



                                      6
                            REES v. HOSPITAL
                            Decision of the Court

advanced stage would not have occurred but for the inaction of the
doctor.”).

¶16            The Hospital argues this principle does not apply in this case
because Rees did not present evidence that she would have had a
“substantially better chance” of a full recovery if she had received timely
medical treatment. The Hospital contends, instead, that this case is more
akin to Lohse v. Faultner, 176 Ariz. 253, 860 P.2d 1306 (App. 1992), in which
we declined to apply Thompson because the plaintiff had not offered
sufficient evidence to create a jury question on the issue of causation. We
disagree. In Lohse, the plaintiff’s expert admitted he could do nothing more
than speculate as to whether, absent negligence, the defendant would have
been in a position to prevent the harm. Id. at 260–61, 860 P.2d at 1313–14.
By contrast, in this case there is evidence that, in the absence of negligence,
Dr. Muddaraj, or one of his partners, would have been in a position to
intervene earlier in the progression of Rees’ malady and prevent further
harm. Dr. Muddaraj’s testimony, coupled with the nature of the Hospital’s
alleged breach of the standard of care, creates a genuine issue of material
fact regarding whether the Hospital contributed to the delay in performing
the operation, which, in turn, caused or increased the severity of Rees’
injury.4 See id. at 263, 860 P.2d at 1316 (“Close questions should be left to
the jury, not preempted by the court.”).

¶17          Because a reasonable jury could conclude that the Hospital
contributed to Rees’ damage by delaying her abdominal surgery, the
superior court erred by granting summary judgment for the Hospital.5

II.    The Superior Court Did Not Err by Allowing the Hospital to
       Designate Dr. Dumlao as a Non-Party at Fault

¶18            Arizona has abolished joint and several tort liability; thus, a
defendant is liable to an injured party only for his percentage of fault and
may ask the trier of fact to apportion fault among all those who contributed
to the injury, whether they were, or could have been, named as parties to


4 The Hospital’s alleged breach was not an issue presented below on
summary judgment. As such, we will not address the evidence raised on
appeal as to breach of the standard of care by the Hospital.
5 Accordingly, we do not address Rees’ argument that the superior court

erred by granting summary judgment for the Hospital because a jury could
infer causation based on the Hospital’s failure to retain all of Rees’ medical
records.



                                      7
                            REES v. HOSPITAL
                            Decision of the Court

the action. A.R.S. § 12-2506 (A), (B) (2003). A party who alleges a non-party
is wholly or partially at fault must provide the identity, location, and the
facts supporting the claimed liability of the non-party within 150 days after
filing an answer. Ariz. R. Civ. P. 26(b)(5).6

¶19          Rees argues the superior court abused its discretion by
allowing the Hospital to name Dr. Dumlao as a non-party at fault more than
one year after the deadline to do so and only three days before discovery
ended. The trial court has broad discretion in discovery and disclosure
matters, and we review its rulings for an abuse of discretion. Rosner v.
Denim & Diamonds, Inc., 188 Ariz. 431, 434, 937 P.2d 353, 356 (App. 1996).

¶20          The Hospital identified Dr. Dumlao as a non-party at fault on
June 26, 2012, approximately seventeen months after the Rule 26(b)(5)
deadline. In response to Rees’ motion to strike the notice as untimely, the
Hospital argued that the late designation was justified by new information
discovered during Dr. Dumlao’s deposition and did not prejudice Rees.

¶21            The Hospital claimed that after it filed its answer, and as part
of its due diligence investigation, it engaged an internal medicine specialist
to evaluate Dr. Dumlao’s care of Rees and, based on that expert’s opinion,
concluded it could not properly name Dr. Dumlao as a non-party at fault.
The parties then attempted to depose Dr. Dumlao, but had difficulty
locating her. When she was finally deposed, she admitted that her actions
fell below the standard of care while treating Rees. Based on that testimony,
the Hospital then identified Dr. Dumlao as a non-party at fault.

¶22           The Hospital argued Rees was not prejudiced by the untimely
designation because she had chosen not to name Dr. Dumlao as a defendant
in the action, which altered the manner by which the parties conducted
discovery and delayed the detection of Dr. Dumlao’s violation of the
standard of care. The Hospital also pointed out that, while additional
discovery might be necessary, the case was not set for trial and Rees would
have the opportunity to resolve Dr. Dumlao’s liability. The superior court
determined the late designation would not prejudice Rees and granted her
leave to amend her complaint to allege that the Hospital was responsible
for Dr. Dumlao’s negligent acts under a theory of vicarious liability.

¶23         Rees argues on appeal that the Hospital’s failure to depose Dr.
Dumlao earlier evidences a lack of diligence that the superior court should


6Rule 26(b)(5) was amended effective April 15, 2014. The changes are not
material to this decision.


                                      8
                           REES v. HOSPITAL
                           Decision of the Court

have weighed against allowing the late designation. However, under the
circumstances—including that Rees did not name Dr. Dumlao as a
defendant, the Hospital’s initial assessment indicated there was no basis to
name Dr. Dumlao as a non-party at fault, and that Dr. Dumlao moved out-
of-state and was difficult to locate—the Hospital did not act unreasonably
by failing to depose Dr. Dumlao earlier. See Ariz. R. Civ. P. 26(b)(5)
(requiring only “reasonable diligence” before the trier of fact may apportion
fault to a non-party whose identity was not disclosed in accordance with
the rule).7 Further, Rees was not unfairly prejudiced by the Hospital’s late
designation of Dr. Dumlao as a non-party at fault because the superior court
allowed Rees to amend her complaint to allege that the Hospital was
vicariously liable for Dr. Dumlao’s negligent treatment of Rees, as Dr.
Dumlao had acted as the Hospital’s ostensible agent.

¶24           Because the Hospital established good cause, reasonable
diligence, and a lack of unfair prejudice to Rees, the superior court did not
abuse its discretion by denying Rees’ motion to strike the Hospital’s notice
of non-party at fault.

                              CONCLUSION

¶25           For the foregoing reasons, we affirm the superior court’s
denial of Rees’ motion to strike the Hospital’s notice of non-party at fault,
but reverse its summary judgment for the Hospital and remand for further
proceedings consistent with this decision.




                                      :gsh


7 We also reject Rees’ argument that she was prejudiced by the court’s ruling
because Dr. Dumlao filed a special appearance to contest the Hospital’s
claim for indemnification, which delayed the trial date and ultimately led
to a re-opening of discovery, as these later events do not bear on the
propriety of the superior court’s ruling on the non-party issue.



                                     9
