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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


              MICHELLE SAMPSON, et al., Plaintiff/Appellant,

                                         v.

    SURGERY CENTER OF PEORIA, LLC, et al., Defendants/Appellees.

                              No. 1 CA-CV 18-0113
                                FILED 12-26-2019


            Appeal from the Superior Court in Maricopa County
                             CV2013-015707
               The Honorable Hugh E. Hegyi, Judge Retired
                The Honorable James Blomo, Judge Retired

               AFFIRMED IN PART; REVERSED IN PART


                                    COUNSEL

Lloyd Law Group PLLC, Payson
By Arthur E. Lloyd
Counsel for Plaintiff/Appellant

Holden & Armer PC, Phoenix
By DeeDee Armer Holden and Michael J. Ryan
Counsel for Defendant/Appellee Surgery Center of Peoria, LLC
Tucker & Miller LLP, Phoenix
By Kevin J. Tucker
Counsel for Plaintiff/Appellee Antoine Burks

J. Goodwin Law PLLC, Goodyear
By James C. Goodwin
Counsel for Defendants/Appellees George Guido, M.D. and Valley
Anesthesiology Consultants, Ltd.



                       MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge James B. Morse Jr. and Judge David D. Weinzweig joined.


S W A N N, Chief Judge:

¶1            Four-year-old Amare’ Burks died within two hours of his
post-operative discharge from an ambulatory surgery center. His mother
brought this wrongful death action against the surgery center, the
anesthesiologist and his employer, among others. The superior court
granted summary judgment for those defendants. After review, we affirm
summary judgment as to the anesthesiologist and his employer, but we
reverse summary judgment as to the surgery center.

                 FACTS AND PROCEDURAL HISTORY

¶2            Amare’, accompanied by his mother Michelle Sampson
(“Mother”), reported to Surgery Center of Peoria, LLC, for a scheduled
tonsillectomy and adenoidectomy to address his obstructive sleep apnea
(“OSA”). The surgery proceeded routinely from 8:36 a.m. to 8:54 a.m. with
Dr. George Guido of Valley Anesthesiology Consultants, Ltd.,
administering anesthesia. Amare’ was discharged to the post-operative
anesthesia care unit (“PACU”) at 9:29 a.m.

¶3          During his time in the PACU, Amare’ repeatedly asked
Mother for his toy and he ingested some apple juice and possibly some
popsicle. According to Mother, he did not cry in front of her but he
appeared uncomfortable and “really sleepy.”

¶4         At 10:30 a.m., sixty-one minutes after Amare’s admission to
the PACU, a nurse discharged him to Mother’s care with discharge


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                       Decision of the Court

instructions and prescriptions. The nurse’s notes showed that Amare’ had
an eight-of-eight score on a vitals-release test. He was groggy but was
sitting upright, and he accepted a sticker on his way out. Mother held him
and the nurse helped her get him and his belonging into Mother’s car.

¶5            Mother put Amare’ to bed at home. Approximately two
hours after discharge, she checked on Amare’ and discovered that he had
stopped breathing. Emergency personnel were unable to resuscitate him.

¶6             Mother brought a wrongful death action against multiple
defendants, including Surgery Center, Dr. Guido, and Valley
Anesthesiology Consultants. To establish standard of care and causation,
she offered the opinions of pediatric anesthesiologist Dr. James Alan
Greenberg. The superior court granted summary judgment in favor of the
defendants on the basis that nothing in Dr. Greenberg’s deposition
testimony or affidavits (including a supplemental affidavit that the court
had earlier stricken) showed a causal link between the defendants’ conduct
and Amare’s death. The court denied Mother’s motions for reconsideration
and a new trial. She appeals.

                                 ISSUES

¶7           Mother raises three issues on appeal:

      1. Did the superior court err by granting summary judgment
         on the claim for premature discharge to either Dr.
         Guido/Valley Anesthesiology Consultants or the Surgery
         Center when plaintiff offered evidence to support
         causation, with or without Dr. Greenberg’s supplemental
         affidavit?

      2. Was it error to strike Dr. Greenberg’s supplemental
         affidavit as unauthorized when ARCP Rule 56(c)(6)
         expressly allows supplementation of affidavits?

      3. Was it error to imply that Dr. Greenberg’s causation
         opinions might be inadmissible under Evidence Rule 702?

                              DISCUSSION

¶8            On review of a grant of summary judgment, we review de
novo whether genuine issues of material fact exist and whether the superior
court correctly applied the law. Dreamland Villa Cmty. Club, Inc. v. Raimey,
224 Ariz. 42, 46, ¶ 16 (App. 2010). “[W]e view the facts and reasonable


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inferences in the light most favorable to the non-prevailing party.” Rasor v.
Nw. Hosp., LLC, 243 Ariz. 160, 163, ¶ 11 (2017).

¶9             A plaintiff alleging medical malpractice must prove both that
“[t]he health care provider failed to exercise that degree of care, skill and
learning expected of a reasonable, prudent health care provider in the
profession or class to which he belongs within the state acting in the same
or similar circumstances” and that “[s]uch failure was a proximate cause of
the injury.” A.R.S. § 12-563. To establish proximate cause, the plaintiff must
show “a natural and continuous sequence of events stemming from the
defendant’s act or omission, unbroken by any efficient intervening cause,
that produces an injury, in whole or in part, and without which the injury
would not have occurred.” Barrett v. Harris, 207 Ariz. 374, 378, ¶ 11 (App.
2004). Causation in a medical malpractice action must be proved by expert
testimony unless the connection between the conduct and the injury is
readily apparent. Id. at ¶ 12. The plaintiff must show that causation is
probable, not merely speculative. See, e.g., Robertson v. Sixpence Inns of Am.,
Inc., 163 Ariz. 539, 546 (1990) (recognizing that plaintiff cannot leave
causation to jury's speculation); Kreisman v. Thomas, 12 Ariz. App. 215, 218
(1970) (noting that “causation must be shown to be [p]robable and not
merely [p]ossible”).

I.     DR. GREENBERG’S DEPOSITION TESTIMONY

¶10          At issue here is whether Amare’s respiratory failure could
have been prevented if he had been held in the PACU for a longer period.
At oral argument on appeal, Surgery Center’s counsel conceded that Dr.
Greenberg’s deposition testimony was sufficient to permit a reasonable jury
to conclude that the standard of care required Amare’ to be kept in the
PACU for a longer period. We agree.

¶11           During his deposition, Dr. Greenberg variously stated that a
patient should be retained for three hours, two hours, or at least one hour
after surgery. When asked to clarify, the following exchange ensued:

       [Defense counsel]: [T]his is an article by Michael Smith at
       MedPage1 today, which I’m not sitting here offering any view


1      The article that counsel asked Dr. Greenberg about indicated that the
average pediatric type discharge for this surgery came after 1.47 hours in
the recovery room, and the actual discharges ranged from 27 minutes to
7.25 hours. Dr. Greenberg stated the article was not authoritative because



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      about whether that’s a reputable medical source, but what I
      am here to ask you is whether you have read the literature
      that basically says the same thing that this article says, which
      is there’s no true standard of care for how long patients are
      observed after the procedure before being discharged when
      they have a tonsillectomy and adenoidectomy?

      [Dr. Greenberg]: The standard of care that I’m familiar with is
      to be observed greater than an hour.

      [Defense counsel]: Okay. Amare’ Burks was observed for
      greater than an hour; correct?

      [Dr. Greenberg]: No. All right. We’re splitting hairs here. He
      was observed for 61 minutes, but what I mean is considerably
      more than that.

      [Defense counsel]: . . . You’re telling me that you have read in
      the literature that it’s an hour. Is that a fair characterization
      of your belief?

      [Dr. Greenberg]: What’s a characterization is that my belief is
      that the standard of care is a longer time than Amare’ was
      observed in the recovery room.

      [Defense counsel]: Would you agree with me that there is not
      a consensus then in the literature about how long a pediatric
      patient should be observed?

      [Dr. Greenberg]: I have not read any articles that say that the
      pediatric patient should be observed any less than two hours.




it was not in a peer-reviewed medical journal. Dr. Greenberg agreed that
there has been an increased “sea change” towards more and more
tonsillectomy and adenoidectomy surgeries in ambulatory surgical centers
in the years between the article’s publication in 2006 and the 2015
deposition. Dr. Greenberg did not reference any medical literature upon
which he relied to form his opinion that more than an hour recovery was
necessary.



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      [Defense counsel]: Well, you just said a minute ago that it was
      your understanding that the standard of care is an hour. Why
      the distinction?

      [Dr. Greenberg]: Not an hour. More than an hour. And more
      than an hour could be 2 hours or it could be 100 hours.

      [Defense counsel]: Well, more than an hour could be 61
      minutes, correct?

      [Dr. Greenberg]: Splitting hairs.

¶12           Dr. Greenberg agreed that the PACU nurse distributed
appropriate medications to Amare’, that Amare’ had adequate pain and
nausea control at discharge, and, finally, that there was nothing to alert
medical personnel that the situation was anything other than routine.
Specifically:

      [Defense counsel]: Was there anything in the medical record
      that would have told Dr. Guido this child is going to die
      within the next two to three hours?

      [Dr. Greenberg]: No.

      [Defense counsel]: Other than your belief that children with
      [OSA] need to be kept longer than that one hour, can you tell
      me anything about Amare’s specific medical condition at the
      times he was discharged that would have told Dr. Guido do
      not discharge this patient right now; he could die in the next
      two to three hours?

      [Dr. Greenberg]: No.

      ...

      [Defense counsel]: And we do know that based on what we
      know from the record and the observations made of this child
      and your opinions today, that there was nothing to alert
      anyone who cared for this child that he was going to be
      different than any other post tonsillectomy and
      adenoidectomy patients. Fair?

      [Dr. Greenberg]: To the extent that the PACU nurse felt that
      this child looked like every other patient, fair.



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      [Defense counsel]: And [another of Mother’s expert
      witnesses] also opined under oath that there was nothing to
      alert anybody to this child being anything or anyone out of
      the ordinary in terms of post tonsillectomy patients; correct?

      [Dr. Greenberg]: Yes.

¶13           Dr. Greenberg’s deposition testimony, although varying
widely, was evidence that a patient should be kept from one to three hours.
While we are not blind to the deficits and contraindications in the
testimony, a reasonable jury could nonetheless find that the standard of
care for observation was three hours. And if a jury were to find that the
standard of care was three hours, it could properly infer that the early
discharge was the probable cause of Amare’s death three hours after
admission.

¶14           Surgery Center makes much of the absence of expert
testimony on the issue of causation. While expert testimony on causation
is often necessary, we perceive no such necessity here. If a jury were to
agree that the standard of care was breached as to time, then no expert
evidence would be necessary to permit it to infer that a discharge in
violation of that standard was the probable cause of a death that occurred
within the time the child should have been observed under the standard of
care.

¶15          Because there exists a triable issue as to whether Amare’s
discharge time constituted breach of the standard of care and thereby
caused his death, we reverse and remand with respect to that aspect of the
wrongful death claim.

¶16           The reversal pertains to Surgery Center only. Dr. Greenberg’s
testimony was insufficient to establish liability by Dr. Guido related to
Amare’s discharge. Dr. Greenberg’s deposition testimony does not support
Mother’s theory that Dr. Guido should have personally examined Amare’
before allowing him to be discharged. Dr. Greenberg admitted that he,
himself, does not always examine patients, even pediatric tonsillectomy
patients, before they are discharged. In fact, he testified that in his
experience “[i]t would be unusual for the anesthesiologist to actually
examine the patient.” Further, with respect to Mother’s theory that Dr.
Guido should have personally written Amare’s discharge orders, Dr.
Greenberg agreed that the information and warnings contained in Amare’s
discharge orders was correct. He could not say what he would put in a
typical discharge order of this type. And, while Dr. Greenburg continued



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to assert that Dr. Guido had breached the standard of care by failing to
personally author the discharge orders, he agreed that such a standard was
not required by the American Society of Anesthesiologists (“ASA”), a
group of which he is a member. He agreed, after reviewing the ASA
standards, that one of them states: “In the absence of the physician
responsible for the discharge, the PACU nurse shall determine that the
patient meets the discharge criteria.” He further admitted that the ASA
standards do not require the doctor personally to write the discharge
orders. Dr. Greenberg acknowledged that the medical record included that
Dr. Guido, when writing his post-operative notes, had indicated that
Amare’ had met the discharge criteria. He also agreed there was nothing
in the PACU nurse’s notes that should have caused Dr. Guido to follow up
with Mother.

II.    DR. GREENBERG’S AFFIDAVITS

¶17             Dr. Greenberg authored two affidavits: the first to accompany
the complaint and the second attached to Mother’s “Second Supplemental
Response” to the defendants’ pending motion for summary judgment. In
the latter affidavit, Dr. Greenberg stated:

       Had the proper level of monitoring been conducted and had
       a physician evaluated Amare’ just prior to his being sent
       home, it most likely would have been discovered that the
       child was not ready for discharge, and the child’s life could
       have been saved by keeping him longer for observation or
       admitting him to the hospital.

The defendants successfully moved to strike the supplemental affidavit as
a “sham” affidavit written simply to preclude summary judgment. Though
we conclude that Dr. Greenberg’s deposition testimony was by itself
sufficient to preclude summary judgment with respect to the Surgery
Center, we briefly address the propriety of the court’s order striking the
supplemental affidavit.

¶18           The superior court has broad discretion to determine the
admissibility of expert opinion evidence in summary judgment
proceedings. Mohave Electric Coop. v. Byers, 189 Ariz. 292, 301 (App. 1997).
We review evidentiary rulings for abuse of discretion. Larsen v. Decker, 196
Ariz. 239, 241, ¶ 6 (App. 2000). “An expert affidavit opposing a motion for
summary judgment must set forth ‘specific facts’ to support an opinion.”
Florez v. Sargeant, 185 Ariz. 521, 526 (1996); see also Ariz. R. Civ. P. 56(e).
Because the supplemental affidavit set forth no additional facts or new



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evidence to support his opinion, the superior court did not abuse its
discretion by deeming its conclusory opinions inadmissible. In view of that
conclusion, we do not address Mother’s contention that it was error for the
superior court to “infer” that Dr. Greenberg’s affidavit may not have met
the standard set out by Ariz. R. Evid. 702.

                              CONCLUSION

¶19         For the foregoing reasons, we affirm the judgment for
defendants Dr. Guido and Valley Anesthesiology Consultants. We reverse
summary judgment as to Surgery Center on the issue of the standard of
care.




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




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