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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

LISA CURTIS
, Plaintiff/Appellant
,

v.

B ANNER HEALTH, et al.
, Defendant s /Appellee s

.
No. 1 CA

- CV 19

- 0621

Appeal from the Superior Court in Maricopa County

No. CV2017

- 055564 The Honorable Cynthia J. Bailey
, Judge (Retired)

AFFIRMED

COUNSEL

Sternfels & White, PLLC
, Fountain Hills By Christopher J. Enos Counsel for Plaintiff/Appellant

Jennings, Strouss & Salmon, P.L.C.
, Phoenix By John J. Egbert, Jay A. Fradkin C ounsel for Defendant s

/Appellee s Banner Health FILED 10-20-2020CURTIS v. BANNER , et al. Decision of the Court

2 MEMORANDUM DECISION
Judge D. Steven Williams delivered the decis ion of the Court, in which Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig joined.

W I L L I A M S , Judge:

¶1 Lisa Curtis (“Curtis ”) appeals the superior court’s denial of her Rule 56(d) motion and grant of summary judgment for Banner Hea lth (“Banner”) on her claim s of medical negligence . For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 On Septembe r 15, 2015, Curtis went to the emergency room at Banner Gateway Medical Center ( the “ h ospital ”) seek ing treatment for

nause a, vomiting, diarrhea and body aches. Dr. Olin Vance examined Curtis and, among other things, ordered two blood cultures to determine if Curtis had a bacterial infection in her blood. The results of the blood cultures were still un known when Dr. Vance disc harg ed Curtis from the hospital that same day

. Dr. Vance instructed C urtis to follow up with her primary care physician within three to four days, and to return to the hospital for any new or worsening symptoms

. ¶3 Just hours after her discharge, the initial results of Curtis ’ blood culture s showed gram positive cocci

. T he lab informed the hospital’s
emergency room charge nurse of the results , but Curtis was not informed

. As relevant here, Banner ’s hospital policy requir es , in part, that staff notify the tre ating physician of a patient’s critical results ( Curtis’ blood cu lture test results) “as soon as possible,” and consider relaying results up the chain of command if the treating physician cannot be contacted “within 60 minutes of [staff] receiving the [res ults] .”

¶4 T wo days later, on September 17, the lab results confirm ed staphylococcus aureus (a staph infection) and Dr. Casey Crandall , a physician on duty, r ecommended that hospital staff inform Curtis and advise her to return to the hospital if symptoms ha d not improved

. Staff did
not notify Curtis. Yet
, Curtis return ed to the hospital on her own and was admitted because of worsening conditions and sever e sepsis

.CURTIS v. BANNER , et al. Decision of the Court

3 ¶5 Curtis brought two claims of medical negligence against Banner in September 2017, alleging, in part, that Banner staff “fail[ed] to properly notify [her] of the results of the blood test ” which proximately

caus ed her injur ies

. Curtis certified that expert testimony was needed to establish her claims and timely disclosed two physician expert witness es but did not timely disclose a nurs e expert w itness. After the deadline for disclosing expert witness es had passed , Banner filed a motion for summary judgment arguing that
, without a qualified nurse expert witness, Curtis could not establish the nursing staff’s conduct fell below the requisite standard of care. Curtis filed a motion under Rule 56(d) of the Arizona Rules of Civil Procedure, requesting authorization to depose “ Dr. Vance as well as two nurses” before respondi ng to Banner ’s motion , which the court denied.

¶6 T he superior court granted summary judgment for Banner

. Curtis timely appealed . W e have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12

- 120.21(A)(1)
, - 2101(A)(1).

D ISCUSSION

I. Rule 56(d) Motion for R elief

¶7 Rule 56(d) affords a party, who “cannot present evidence essential to justify its opposition” to summary judgment, to request, among other things, the opportunity “to obtain affidavits or to take discovery” before responding to a motion for summary j udgment. Ariz. R. Civ. P. 56(d)(1) and (5)(A) . We review the superior court’s denial of a Rule 56(d) motion for an abuse of discretion. St. George v. Plimpton , 241 Ariz. 163, 165, ¶ 11 (App. 2016)

. ¶8 Banner’s motion for summary judgment raised the narrow iss ue of Curtis’ failure to name an expert qualified to testify to nursing standard of care, including the nursing care provided by hospital staff

. A lthough Curtis disclosed two expert witnesses, Dr. Lynette Zills, a board certified urgent care physician, and Dr. Thomas Anthony Cumbo, a board certified internal medicine physician, Curtis failed to timely disclose an expert witness who could testify to the nursing standard of care. See A.R.S

. § 12

- 2604(A); see also Bak er v. Univ. Physicians Healthcare , 231 Ariz . 379, 384, ¶ 14 (2013) (the testifying expert must specialize in the same specialty or claimed specialty as the treating medical professional).

¶9 Curtis contends the superior court’s denial of her Rule 56(d) motion constituted an abuse of discretion because it placed a n undue burden on Curtis to sift through Banner’s disclosure, provided just twoCURTIS v. BANNER , et al. Decision of the Court

4 months before the summary judgment motion, in order to determine which type of expert witnesses were ne eded. But Curtis concedes she knew before the expert witness disclosure deadline that the conduct of hospital nurses was central to her medical negligence claim.

¶10 T he superior court denied Curtis’ Rule 5 6 (d) request because : (1) “report [ s ] and other discov ery regarding the necessity of a nursing standard of care exp ert were timely disclosed in August 2018, almost 60 days prior to the deadline for expert disclosure reports” ; (2) Curtis “concede[s] in the Rule 56 [ d ] motion that she knew in August, 2018, that a nurse received the blood testing results” ; (3) Curtis “fail ed to prove that [Banner] possessed any undisclosed evidence that could provide any insight into the narrow issue raised in the [m] otion for [s] ummary [j] udgment” ; and (4) “ the [c] ourt was not pe rsuaded . . . that the name of the specific nurse or nurses i nvolved in the transmission of [Curtis’] blood test results was necessary prior to disclosure of an expert opinion report. ”

¶11 The court did not abuse its discretion in denying Curtis’ request for more discovery because th at discovery did not influence the

na rrow issue presented in Banner’s summary judgment motion. Ad e r v. Estate of Felger , 240 Ariz. 32, 3 6
, ¶ 7 (App. 2016). And
, Curtis knew nearly two months before the expert wi tness disclosure deadline that she needed to establish the requisite nursing stand ard of care

.
II. Motion for Summary Judgment

¶12 Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the moving party is entitled to judgme nt as a matter of law.” Ariz. R. Civ. P. 56(a) . On appeal, we review a grant of

su mmary judgment de novo
, Dreamland Villa Cmty. Club, Inc. v. Rainey , 224 Ariz. 42, 46, ¶ 16 (App. 2010)
, “view [ing] the facts and reasonable inferences in the light most favorable to the non

- prevailing party,” Rasor v. Nw. Hosp., LLC , 243 Ariz. 160, 163, ¶ 1 1 (2017)

. ¶13 In a medical negligence action, a plaintiff must prove both : (1) “[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 (2) “[s]uch failure was a proximate c ause of the injury.” A.R.S. § 12

- 563 ; see also Ryan v. S .F. Peaks Trucking Co., Inc. , 228 Ariz. 42, 48

– 49, ¶ 23 (App. 2011)

. ¶14 Typically, the st andard of care “must be established by expert medical testimony.” Id. at 49, ¶ 23; Seisinger v. Siebel , 220 Ariz. 85, 94, ¶ 33CURTIS v. BANNER , et al. Decision of the Court

5 (2009); see also Phillips v. Stillwell , 55 Ariz. 147, 149 (1940). The testifying expert must “specialize ‘in the same specialty o r claimed specialty’ as the treating [medical professional] .” Baker v. Univ. Physicians Healthcare , 23 1 Ariz. 379, 384, ¶ 14 (2013) (quoting A.R.S. § 12

- 2604(A)); see also Rasor , 243 Ariz. at 165

– 66, ¶ 27. “ Similarly, unless a causal relationship is readil y apparent to the trier of fact, expert medical testimony is normally required to establish proximate cause.” Ryan , 228 Ariz. at 49, ¶ 23; see also Salica v. Tucson Heart Hosp.

- Carondelet, L.L.C. , 224 Ariz. 414, 419, ¶ 16 (App. 2010). A s an exception to th e general rule requiring expert testimony, the standard of care need not be established by expert medi cal testimony if the negligence is “so grossly apparent that a layman would have no difficulty in recognizing it.” Riedisser v. Nelson
, 111 Ariz. 542, 544 (1975).

¶15 In Potter v. H. Kern Wisner, M.D., P.C. , 170 Ariz. 331, 335 (App. 1991), this court indicated there appears to be “a split in authority in Arizona” whether “evidence of a practice by an individual doctor or a limited group of health care professio nals is []sufficient to establish the necessary standard of care.” For example , in Bell v. Maricopa Me d

. Center
, 157 Ariz. 192, 195 (App. 1988)
, this court reasoned that a jury could not conclude “ that [a] hospital’s violation of its [own] protocols consti tuted evidence of negligence unless it first found that the protocols were not merely evidence of the applicable standard, but were synonymous with it.” But in Peacock v. Samaritan Health Serv

. , 15 9 Ariz. 123 , 127 (App. 1988)
, decided just two months after Bell , this court held that, although “a policy adopted by a health care provider will [not] always equate with the standard of care to be applied by the jury in determining if the care and supervi sion of a patient were neglige nt . . . the existence of a h ospital protocol is nevertheless some evidence of the standard of care.” (Emphasis added.) Further, when a hospital protocol exists, “[a jury] could conclude that the protocol [is] the standard of care and that the failure to follow that standard was negli gence.” Id

. Whether Bell and Peacock actually conflict with one another, however, is not clear to us.

¶16 In granting summary judgment for Banner, the superior court concluded that “ the issues involved with the duty of care for nursing staff in documenting and disseminating blood culture reports is not analogous to the standard of care at issue in Peacock

. ” We agree. In Peacock
, the plaintiff

wa s suffering from a “manic episode” and admitted into a hospital’s mental health unit where he needed to “be observed, monitored and watched for worsening of [] symptoms or evidence of a delirium.” Id

. at 124. Once admitted, the plaintiff “either jumped or fell through the fourth floor windo w of his room and suffered severe physical injuries

. ” Id

. at 125. The hospital had a protocol in place requir ing that “the window in [plaintiff’s]CURTIS v. BANNER , et al. Decision of the Court

6 room

. . . be secured by a lock mechanism

. ” Id. at 127. It was not. Id. This court reasoned that evidence of the “[hospital’s] own protocol together with reasonable inferences that can be draw n from the act of placing a reportedly suicidal patient in a fourth floor room with an unsecured window” could be enough for a jury to conclude that the protocol was the standard of care. Id

. (Emphasis added.)

¶17 Here, however, “reasonable inferences” as to th e time in which blood culture results ought to be relayed to an attending physician, or the patient herself, are not commonly known , but instead require medical training and knowledge . Consequently, because a jury c ould not conclude , absent expert testim ony, that Banner’s own protocol is synonymous with the standard of care
, the superior court appropriately gra n ted summary judgment for Banner

.
CONCLUSION

¶18 For the foregoing reasons, we affirm

.