To establish medical malpractice, a plaintiff must prove that the healthcare provider’s action fell below the standard of care and that the failure was a proximate cause of the plaintiff’s injury. In Arizona, causation must be established by competent expert testimony, with an exception allowing for a jury to infer such causation if malpractice is “readily apparent.” The Supreme Court of Arizona recently held that this narrow exception does not apply when the cause of death or injury is disputed and not obvious to an ordinary person.
Sampson, et al. v. Surgery Center of Peoria, LLC, et al.
Plaintiff Michelle Sampson brought her 4-year-old son, Amaré Burks, to the Surgery Center of Peoria, an outpatient surgery clinic, for a scheduled tonsillectomy and adenoidectomy. The procedure was done under general anesthesia and the doctor who performed the procedure stayed in the operating room with the boy for about 30 minutes afterward. Burks was then transferred to a post-operative anesthesia care unit (PACU), where he was under a nurse’s care. After 61 minutes, Burks was sent home, having scored 8 of 8 on a vitals-release test.
Sampson, who had been told it was typical for a patient to sleep after surgery, put her son to bed, checked on him about two hours after discharge, and discovered he was not breathing. Emergency personnel was unable to revive him. Sampson brought a wrongful death action against several defendants, including the surgery center and the anesthesiologist, Dr. Guido.
In accordance with Arizona law, the plaintiff produced an expert witness, Dr. Greenberg, to establish standard of care, proximate cause, and cause of death.
Dr. Greenberg originally attested that one hour was insufficient to assess a pediatric patient for discharge and that three hours was appropriate. He also stated the anesthesiologist fell below the standard of care by discharging the patient before that time and that the patient’s death could have been prevented with longer observation in the PACU. Finally, he attested that Burks died from his inability to breathe due to after-effects of surgery and anesthesia – that his pharyngeal tissues were swollen and obstructed his upper airway, and that the residual effects of sedation did not allow him to awaken to overcome the obstruction.
Later, Dr. Greenberg contradicted his first statement, stating that the standard of care required between one and three hours of observation before release.
Trial Court and Court of Appeals Decisions
The Surgery Center and Dr. Guido contended that the expert witness failed to establish that their actions proximately caused Burks’ death. The plaintiff argued that the causal connection was “obvious” and therefore expert testimony about causation was not required.
The trial court disagreed with the plaintiff, and held that Dr. Greenberg’s testimony failed to establish a causal connection between the providers’ actions or omissions and Burks’ death. It was further noted that whether Burks would have survived with longer observation involved “matters committed to the expertise of medical practitioners, and well beyond the keen of the average juror.”
After the court entered final judgment against Sampson, she appealed to the Court of Appeals, which reversed the lower court’s decision, concluding that a reasonable jury could find that the standard of care for observation was three hours and could thus infer that the early discharge was the probable cause of death. While acknowledging the contradictions in Dr. Greenberg’s testimony, the Court of Appeals stated that if the 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.”
Arizona Supreme Court Decision
The Arizona Supreme Court examined whether the Court of Appeals had erred in holding that the jury could properly infer proximate cause given the facts of the case.
Regarding causation, the Arizona Supreme Court said, a 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.” Moreover, a plaintiff must show that causation is probable, not merely speculative.
Thus, even if Dr. Greenberg’s testimony was generously interpreted to read that a three-hour observation period was required, “his failure to connect the dots between the premature discharge and Burks’ death” would leave the jury to infer that failure to observe the patient for longer was the proximate cause of death. But such causation must be shown to be probable and not merely possible, and “Dr. Greenberg’s assertion that a longer observation period could have prevented Burks’ death is therefore insufficient as a matter of law to prove causation,” the Court said.
Further, the Court noted, the cause of Burks’ death is disputed. The autopsy report said Burks died from a “disseminated Strep Group A” infection, while Dr. Greenberg stated he died from a “swollen and obstructed upper airway” combined with an inability “to breathe from the after-effects of surgery and anesthesia.” Given the fact that medical experts could not agree on the cause of death, the Court said it is unrealistic to expect that a jury could properly infer that the early discharge was the probable cause of death.
“Lay jurors are not competent to determine that [Burks] would have exhibited symptoms of distress during those three hours, what those symptoms would have been, what a reasonable schedule of observation in such a center would have been, whether the Surgery Center would or should have noticed [Burks’] distress had it observed that schedule, and, if it had noted distress, what could have been done in a timely manner to save [him],” the Court said.
By affirming the trial court’s ruling and vacating the Court of Appeals’ decision, the Arizona Supreme Court properly defined the circumstances under which causation must be established by expert testimony. Given that establishing or disproving causation is the linchpin of every medical negligence claim, it behooves counsel to address it proactively and affirmatively rather than leaving it to chance.