The Supreme Court of the State of Arizona (“Arizona Supreme Court”) held in its opinion dated July 30, 2021: “a jury in a medical malpractice case may not be left to “infer” causation without the guidance of expert testimony where the cause of death is disputed and not obvious to an ordinary person.”
The Underlying Facts
In March 2012, Plaintiff Michelle Sampson (“Sampson”) took her four-year-old son, Amaré Burks, to the Surgery Center of Peoria, an outpatient surgery clinic, for a scheduled tonsillectomy and adenoidectomy. The procedure is considered routine and has an extremely low complication rate. Dr. Guido administered the general anesthesia, and Dr. Libling performed the procedure. Dr. Libling remained in the operating room with Amaré for about thirty minutes after the surgery. At that point, Amaré was sitting up and crying and was transferred to a post-operative anesthesia care unit (PACU).
Nurse Kuchar attended Amaré in the PACU. Amaré drank apple juice and asked for a toy but, according to his mother, appeared sleepy and uncomfortable. After sixty-one minutes, Nurse Kuchar released Amaré to his mother’s care. He scored eight of eight on a vitals-release test, and his condition did not appear concerning. Sampson took Amaré home and put him to bed. She had been told it was typical for a patient to sleep after surgery. Approximately two hours after Amaré’s discharge, Sampson checked on him, and he was not breathing. Emergency personnel were unable to revive him.
Sampson brought a wrongful death action against several defendants, including the Surgery Center and Dr. Guido. As required by A.R.S. § 12-2603, Sampson identified Dr. Greenberg as her expert witness to establish cause of death, proximate cause, and standard of care.
In his initial affidavit, Dr. Greenberg attested that (1) one hour was insufficient to assess a pediatric patient for discharge and that three hours was appropriate, especially for a child with a history of sleep apnea; (2) the anesthesiologist fell below the standard of care by discharging Amaré before that time and Amaré’s death could have been prevented with longer observation in the PACU; and (3) Amaré died from being rendered unable to breathe from the after-effects of surgery and anesthesia, as his pharyngeal tissues were swollen and obstructed his upper airway, and the residual effects of anesthesia did not allow him to awaken to overcome the obstruction. In his deposition, Dr. Greenberg opined that the standard of care required between one and three hours of observation before release.
Arizona Supreme Court Opinion
The Arizona Supreme Court stated that in Arizona medical malpractice cases, causation must be established by competent expert testimony, and the narrow exception is that a jury may infer such causation if malpractice is “readily apparent.”
In the case it was deciding, the Arizona Supreme Court stated: “Dr. Greenberg, who opined that Surgery Center and Dr. Guido fell below the requisite standard of care … equivocated over the applicable standard, providing a range from one hour of post-operative observation, which the Surgical Center satisfied, to up to three hours, which it did not. More significantly, Dr. Greenberg did not opine that insufficient observation was the probable proximate cause of Amaré’s death. Rather, he opined that greater observation “could have” allowed Surgery Center personnel to resuscitate Amaré … In a case where the standard of care or the cause of death is disputed on a matter requiring medical knowledge to resolve, it is difficult, if not impossible, to imagine a situation where lay jurors, untrained in medicine or medical procedure, could properly determine liability absent expert guidance.”
“[E]ven if Dr. Greenberg’s testimony established that three hours of observation constituted the standard of care, “lay jurors are not competent to determine that Amare’ 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 Amare’s distress had it observed that schedule, and, if it had noted distress, what could have been done in a timely manner to save Amare’.” As a result, Sampson did not establish that the failure to observe Amaré for a longer period caused his death by starting a natural and continuous sequence of events, unbroken by any intervening causes.”
Source Sampson v. Surgery Center of Peoria, LLC, No. CV-20-0024-PR.
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