good afternoon good afternoon maybe the morning i think still still morning it's still morning i came from out of state so i my time's all mixed up  my name is scott borg i represent the plaintiff appellant steve trujillo this case is about a man who had half his foot amputated because of negligence by a physician assistant plaintiff had two physician experts who regularly work with physician assistants to testify about how the standard of care for a physician assistant was violated in this case that physician so i don't think there's any doubt maybe i'm wrong about this that your experts knew of the standard of care there was the government is not contesting that they didn't know the standard of care for physician assistance so the question is whether the arizona legislature has made them statutorily unqualified witnesses because of the language in determined and i can remember the case but determined by whether there was sufficient involvement of the health care professional with the  different oh thank you that's that is a good point obviously you know my opinion i think it's a silly statute but i'm just trying to figure out how we work with the the physician assistant  required to work under the supervision of a physician and the scope of practice for the physician assistant is determined by the supervising physician there's a number of regulations and parts of the statute that establish a very close relationship between the physician and the physician that's where the nurse could operate independently i suppose in many respects yes i think there's a case that says something about  well one profession is so totally divorced from from the from the nursing profession that there was no no way in which they could be deemed to be aligned or dependent on one another but this statutory scheme is is completely different it is like fourteen or fifteen different points in which it places the physician assistant under the the physician and requires compliance by the physician assistant with a whole retinue of of things including annual reports keeping the name of a supervising physician on file and updating that an arizona case that is decided whether a physician assistant can be testified against by a physician but physicians are so heavily enter client with physician assistants that oh you don't need to do that they are part and parcel of the same field and physician assistants are totally dependent on physicians it is not logical to say that a physician a qualified physician who has the same experience and training as a physician assistant cannot testify as to the standard of care does it make a difference in this case that your two experts weren't supervising physician assistants no other words that i could see where the physician assistant under whom the doctor and to whom this position assistant worked might be qualified to speak of the standard of care because this position or system worked under that person but these are just two doctors who happen to know about feet and infectious disease so that when i do so how do we know they know anything about the  standard of care for a physician assistants i know in general physician assistants work under doctors but in the briefs they say it's said that  the physicians in this case work extensively with physician assistants in the same field in the same area and or as a factual matter they they would be like the doctor who is supposed to super supervising this physician just that they're in different states so they can't actually supervise somebody in arizona so i take it your your poor quiet lives on the arizona side of the border yeah you know and if you're in new mexico you wouldn't have this problem probably not mr bork at one point you asked the district court for an extension to disclose rebuttal export reports from i think september  nd two thousand and seventeen to october th two thousand and seventeen so it seems like that would have been a real opportunity but at no point did you disclose any expert witnesses had done that i don't think you'd be in this position so can you help me understand why why you didn't offer that when you could have i wasn't sure that i didn't think we could have at that time because the case had been going on for some time and everything all the indications were that the judge would not entertain that motion what did the judge say i can't recall exactly what the judge said but he was you can see from they very give very narrow interpretations of what is considered that area of standard of care and they are very limited in what they will allow and who they were allowed to opine on that it has to be within that same band of profession what they consider that profession so not sure that it was the district court who is ramming this but it looks like the language of the legislature but why didn't you hire a from the star we thought we had better than a p a we had two experts who trained who worked extensively with ph d s they we thought they were getting a higher higher level of expertise we could get back to judge mckee as question about the record at some point you understood that the government was contending that you had to have a p out why you thought it was too late other than what we were asked to never went back to the judge when the motion was filed and asked the deadline for identifying experts ok and i read it as being that we really couldn't come in with a new expert at that point just just because the deadline had run can't really fault the district judge for not giving you relief that you don't request you never requested an extension of the deadline an effort to hire you know because the deadline when passed and we felt we had two highly qualified experts who are better much better than the p a who isn't the defendant and so we figured if you get it but you know you asked for an extension to disclose for bottle expert reports and then i mean i think you saw what the landscape was at that point and just interesting to me that he didn't trying to get a ph we didn't think it was worthwhile because it was so clearly these two experts were so clearly qualified and there's ambiguity in the statute about who can testify in medical malpractise cases especially there's no case on point as to a physician assistant there are numerous cases about nurses and so we believe that because there's this inner twining of the physician and physician assistant and all these statutes say that the physician must do this and must do that and require that the standard of care be viewed through the professional perspective of the treater whose care is at issue and the district court properly exercised its discretion by holding that the two proposed experts here in  physician in the and the p s a where one profession is basically dependent on the others sort of permanent overall supervision so just curious why shouldn't there be consideration of an exception being carved out of section twelve two thousand six hundred and four to allow physicians to testify to the standard of care for p a on or for a few different reasons st the arizona statutes make clear that unlike in other states physician assistants are considered their own separate independent professions so they're not regulated together with doctors under the same statutes and regulations instead title thirty two dollars of the arizona revised statutes defines health care professionals as those who are licensed pursuant to the individual substantive chapters of that title and chapter twenty five provides those substantive standards and definitions for physician assistance they're governed by their own regulatory board they have separate training and education and licensing and certification requirements and they are treated as a separate profession in fact they are prohibited from holding themselves out as doctors they can be disciplined for that they can be criminally prosecuted for expand it for operating outside of their scope of practice  i appreciate that i just i mean it seems like the arizona statutes also require physicians to supervise position assistants and i think for example a p a is only allowed to provide medical services that are delegated by the super position if the services within the p a skills is within the physician's scope of practice and is supervised by the by the physician and you know the p a is only allowed to do certain things if the position allows it i mean it's administering drugs med you know medical devices pronouncing death other diagnostic their predicament of services this just seems unique that th responsibility for all the tasks of the piece so just seems that we should maybe look at and i'm sure perhaps even more specifically the arizona legislature should look at that were the case is before us right now as to whether or not it's appropriate to uphold the the district court's decision that said no doctor can opine on the standard of care for physician let let me try to answer that by looking at the statute that we that we have to deal with here and the way that the statute has been construed in applied by the arizona appellate courts in this case  your honor as are bound by authoritative interpretations of the statute by the arizona supreme court and are guided by the principles that can be distilled from the arizona appellate case law that deals with the statute there are three principles that all work together to require formants here the st principle is the general intent of the statute as then vice chief justice spells recognized in the baker case the general intent of the statute is to ensure that the standard of care expert has comparable training and experience as the trader at issue comparable training and experience and for a host of reasons a board certified podiatrist in an infectious disease specialist do not have the same training and experience or even comparable training and experience as a physician assistant working at a general care or sort of walk in urgent care clinic what's the that's what doesn't make a great deal of sense under it seems and  take this hypothetical if the physician or the medical doctor that was actually supervising this defendant had been prepared to testify that the defendant had not complied with the standard of care would he be precluded from testifying under the statute well yes and that gets me to the to the nd thing that can be distilled from the arizona case law which is that these traditional notions of familiarity with the standard of care of experience working with these other care providers or even of supervising them being in a supervisory position is not under arizona law enough so sue me let's i want to follow up on judge gross point so let's assume we have a doctor who said i told the physician assistant to do x and he did why and why is terribly destructive and hurts patients now that's why i told him to do x have the same or substantially similar professional i so we don't have a race it's a case for purposes of this question right you don't right now there may be you know the physicians testimony certainly relevant but is it that sort of expert testimony that is r assistant to testify that disobeying the doctor's orders falls below the standard of care well if you know the statute subjects the physician assistant to the doctors so that might be a negligence per se situation in direct violation of of the statute but that's that's different that's not what we have here in a case where you're just trying to assess whether the physician assistant made the right judgment call well operating as a physician assistant the statute requires a physician assistant to provide that expert testimony so in the st george case for instance the o b g y n testified throughout his entire career he regularly worked with and supervised certified nurse midwives and was friendly with the standard of care same professional band here i mean the i think physicians in p s are supposed to me once a week i mean it just seems that they have such a close and intertwined relationship that these traditional bands of  care you know and what is normally expected seems to be present here so for example assuming every other fact in this case is identical except that lewis is not a p a he is a podiatrist and a medical doctor would you object to polanski's and watson's expert testimony in that case argument that somehow they didn't know the standard of care or that the standard of care for the doctor and a podiatrist is different than the you're making purely a stay you're saying i don't care about that the statute says this and they give for  seems rather an absurd result though given that they are familiar i mean super familiar with the standard of care well but they are not familiar necessarily with the standard of care from the perspective of a the p t a learns from it's you know a different training an educational program a different certification program a different licensing program so that what a p a is supposed to do in a particular situation has to be judged by the standards that apply to p s by the professional perspective training and experience that applies to pay so the general intent of the statute that like training in experience control who can testify really applies here and it does tails with the notion that for milieu already with the standard of care is not enough under the statute supervision under the statute is not enough let me let me just point to the cornerstone case which talks about nursing and looks at the nursing statutes one of the nurses in that case was a licensed practical nurse and under arrest thirty to sixty no one hundred and nineteen a license practical nurse why statute must be supervised by either in a physician or a registered nurse know i mean it's it's a slip of the district judge but i think you can see i think intense here was very helpful here cornerstone looks to the arizona statutory scheme governing the professions recognizes that nursing is its own profession because nurses are intense yo looks to the access statute title thirty two i'm sorry title thirty sets looks to another set of statutory distinctions i think the common theme there is that whether you look at title thirty two or title thirty six the arizona statutes draw a clear hard demarcation between physicians and other professionals so in title thirty six he used an addressed in a tense he of the court looked at that distinction  medicaid access statute which recognized that nurses and physicians assistants operate one tier of the health care delivery system physicians operate at a different here therefore they're in separate professions so could a nurse  before your you're qualified expert because you're a nurse so all agree that there is some tension there your honor but if you look overall at the basic principles that can be distilled from the arizona case law the general intent of the statute then you need like or comparable training and experience that for mill european supervision are not enough to qualify an expert and three from from cornerstone you get the rd principle which is that you look to the kind of the regulatory structure of how these professions are organized which also informs the decision and as we discussed in our brief chapter twenty five provides this very separate and independent regulatory scheme for for peonies really do perform a different function in the health care system they help lower the cost of services and help increase patient access to the system and that's why they were really introduced into the american medical system in the and sixty s that history is traced in the tennessee supreme court case that we cite the cox case and it further explains why p s really are treated and recognized as an independent profession and even under the statutes that  the plaintiff cites here p s are afforded a great degree of autonomy there doesn't have to be a supervising physician present where they practice as long as they touch base in some fashion even by telecommunication once a week there is no requirement in arizona that doctors cosign any specific number of patients charts p s unlike in arizona unlike in many other states are governed by separate independent regulatory board those distinctions are all set in an american medical association survey that are cited in the opening briefing that we cite in our answering brief so there are clear distinctions and it really would up and subtle there isn't a case law to recognize that a professional vastly different training and experience can testify as to the standard of care of the p a here one could imagine if that were the rule then why couldn't a p a testify about the standard of care of an infectious disease specialist or doctor tree for that matter that would really be fundamentally at odds with the way the case law has developed and as your honour's pointed out how it has defined these requirements to a high degree of particularity so adopting the plaintiff's position would really require rewriting arizona law and the district court should be formed thank you thank you thank your honour's none of the cases cited by the government are on point and they fell the look at in this case isn't cherry on point it's a district court case but didn't judge oversee city you couldn't use a physician to testify about the standard of care of a pm well interestingly in that case the government was taking the in this case and like no other case where a field of nursing or medicine is involved there's close in or twenty of the overseeing profession with the profession being overseen and that makes all the difference in cornerstone they said you must look at all the statutes and all the evidence about what the standard of care is and the cases that have been cited by the government involve different issues and  involve the kind of intense entanglement between b a's and physicians so i would urge you to look at the different approaches to know the p s a can only take on duties that are delegated by a supervising physician and supervising physician must supervise the p a must meet with the supervising position once a week the scope of practice is set by the supervising position p a's are trained by doctors licensed to work with doctors directed no overseen by doctors and they were supervised by doctors p a s or stated in the statutes to be agents of doctors they can only take on duties that delegated by doctors they must have a written agreement that updated annually now lining their squad the scope of their practice their agents already said that so in looking at whether the interest experts can opine about the standard of care i think you have to look at google overall statutory scheme not just whether  not just whether there's  case on our docket for this morning is greg young publishing incorporated incorporate