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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LISA CURTIS, Plaintiff/Appellant,

v.

BANNER HEALTH, et al., Defendants/Appellees.

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

Counsel for Defendants/Appellees Banner Health

FILED 10-20-2020
CURTIS v. BANNER, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision 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 Health

(“Banner”) on her claims of medical negligence. For the following reasons, 

we affirm. 

FACTUAL AND PROCEDURAL HISTORY

¶2 On September 15, 2015, Curtis went to the emergency room at 

Banner Gateway Medical Center (the “hospital”) seeking treatment for 

nausea, 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 unknown when Dr. Vance discharged Curtis from the 

hospital that same day. Dr. Vance instructed Curtis 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 cultures showed gram positive cocci. The lab informed the hospital’s 

emergency room charge nurse of the results, but Curtis was not informed. 

As relevant here, Banner’s hospital policy requires, in part, that staff notify 

the treating physician of a patient’s critical results (Curtis’ blood culture 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 [results].” 

¶4 Two days later, on September 17, the lab results confirmed

staphylococcus aureus (a staph infection) and Dr. Casey Crandall, a 

physician on duty, recommended that hospital staff inform Curtis and 

advise her to return to the hospital if symptoms had not improved. Staff did 

not notify Curtis. Yet, Curtis returned to the hospital on her own and was 

admitted because of worsening conditions and severe sepsis.
CURTIS v. BANNER, et al.

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¶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 

caused her injuries. Curtis certified that expert testimony was needed to 

establish her claims and timely disclosed two physician expert witnesses but 

did not timely disclose a nurse expert witness. After the deadline for 

disclosing expert witnesses 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 responding to Banner’s motion, which the court 

denied.

¶6 The superior court granted summary judgment for Banner.

Curtis timely appealed. We have jurisdiction pursuant to Article 6, Section 

9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

I. Rule 56(d) Motion for Relief

¶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 judgment. 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 

issue of Curtis’ failure to name an expert qualified to testify to nursing 

standard of care, including the nursing care provided by hospital staff. 

Although 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 Baker 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 an undue

burden on Curtis to sift through Banner’s disclosure, provided just two 
CURTIS v. BANNER, et al.

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4

months before the summary judgment motion, in order to determine which 

type of expert witnesses were needed. 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 The superior court denied Curtis’ Rule 56(d) request because: 

(1) “report[s] and other discovery regarding the necessity of a nursing 

standard of care expert 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 “failed 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 persuaded . . . that the name of 

the specific nurse or nurses involved 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 that discovery did not influence the 

narrow issue presented in Banner’s summary judgment motion. Ader v. 

Estate of Felger, 240 Ariz. 32, 36, ¶ 7 (App. 2016). And, Curtis knew nearly 

two months before the expert witness disclosure deadline that she needed

to establish the requisite nursing standard 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 judgment 

as a matter of law.” Ariz. R. Civ. P. 56(a). On appeal, we review a grant of 

summary 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, ¶ 11 (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 cause 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 standard of care “must be established by expert 

medical testimony.” Id. at 49, ¶ 23; Seisinger v. Siebel, 220 Ariz. 85, 94, ¶ 33 
CURTIS v. BANNER, et al.

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(2009); see also Phillips v. Stillwell, 55 Ariz. 147, 149 (1940). The testifying 

expert must “specialize ‘in the same specialty or claimed specialty’ as the 

treating [medical professional].” Baker v. Univ. Physicians Healthcare, 231 

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 readily 

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). 

As an exception to the general rule requiring expert testimony, the standard 

of care need not be established by expert medical 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 professionals is []sufficient to establish the 

necessary standard of care.” For example, in Bell v. Maricopa Med. 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 constituted 

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., 159 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 

supervision of a patient were negligent . . . the existence of a hospital 

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 negligence.” 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 

was 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 

window of his room and suffered severe physical injuries.” Id. at 125. The 

hospital had a protocol in place requiring that “the window in [plaintiff’s] 
CURTIS v. BANNER, et al.

Decision of the Court

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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 drawn 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 the 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 could not 

conclude, absent expert testimony, that Banner’s own protocol is 

synonymous with the standard of care, the superior court appropriately 

granted summary judgment for Banner. 

CONCLUSION

¶18 For the foregoing reasons, we affirm.