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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WILLIAM ARNOLD, et al., Plaintiffs/Appellants,

v.

VIEWPOINT HEALTHCARE, INC, et al., Defendants/Appellees.

No. 1 CA-CV 23-0271 

Appeal from the Superior Court in Maricopa County

Nos. CV2019-050255 

 CV2022-053714

 (Consolidated)

The Honorable Melissa Iyer Julian, Judge

The Honorable Sara Agne, Judge

AFFIRMED

COUNSEL

Reynolds Legal Group PLLC, Flagstaff

By Michael T. Reynolds

Counsel for Plaintiffs/Appellants

Ensign Services Inc., Higley

By Michael J. Ryan, Nichole Cullen

Co-Counsel for Defendants/Appellees

Jones Skelton & Hochuli PLC, Phoenix

By Jonathan Paul Barnes, Jr.

Co-Counsel for Defendants/Appellees

FILED 01-23-2024
ARNOLD, et al. v. VIEWPOINT, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Kent E. Cattani and Judge Anni Hill Foster joined.

C A M P B E L L, Judge:

¶1 William Arnold and Bobbi Laniece Patterson (Parents) appeal 

the superior court’s judgment denying relief under Arizona’s savings

statute, A.R.S. § 12-504. They also appeal the dismissal of their second 

amended complaint against Viewpoint Healthcare, Inc., doing business as

Horizon Post Acute (Horizon), for noncompliance with A.R.S. § 12-2603.

For the following reasons, we affirm. 

BACKGROUND

¶2 Parents’ son, Antonio Michael Patterson Arnold, had a septic 

infection when he was admitted to a local hospital for treatment in February 

2017. The infection spread to Antonio’s heart, causing tricuspid and mitral 

valve endocarditis. Antonio underwent a tricuspid valve replacement to 

mitigate the endocarditis but suffered a “complete heart block that 

complicated his post-operative course of healing.” To address his escalating 

heart issues, doctors installed a pacemaker. His health care providers 

ordered him to take an antibiotic to treat the endocarditis until May 23. 

¶3 After Antonio’s discharge from the hospital on April 25, 

Horizon admitted him for post-acute rehabilitation. Antonio’s admitting 

diagnosis report noted past opioid and stimulant abuse. On May 7, 

Horizon’s nursing staff found Antonio’s deceased body on the floor after 

an “unattended death” that occurred during intravenous antibiotic 

administration. Antonio’s immediate cause of death on his death certificate 

is listed as “endocarditis/valvular heart failure” due to “intravenous drug 

abuse.” 

¶4 In 2019, Parents sued Horizon and others for Antonio’s 

wrongful death, negligence, and medical malpractice. Parents claimed (1) 

the pacemaker was defective and did not include a back-up battery, (2) the 

hospital prematurely discharged Antonio while he was unstable, and (3)

Horizon was understaffed and failed to appropriately monitor Antonio.

Because the litigation was filed against a licensed professional, Parents
ARNOLD, et al. v. VIEWPOINT, et al.

Decision of the Court

3

were required to certify whether expert testimony would be required “to 

prove the licensed professional’s standard of care or liability for the claim” 

A.R.S. § 12-2602(A). Parents indicated in their complaint that such

testimony would be required to prove their case. 

¶5 To comply with their initial expert disclosure obligations,

Parents proffered a preliminary expert opinion affidavit authored by a 

registered nursing expert, Ethel Wills. See A.R.S. §§ 12-2602(B), -2603. Wills’ 

curriculum vitae showed she had more than 30 years of experience in 

nursing care. Among other things, Wills had provided care to patients with 

cardiac conditions and had assessed and provided emergent care to 

patients in cardiac distress. 

¶6 In her preliminary expert opinion affidavit, Wills noted that 

Horizon neglected to timely administer Antonio’s prescribed antibiotic.

Wills specifically opined that:

The nursing staff breached the standard of care of medication 

administration by failing to give his medication at the right 

time. During the 11 days that Antonio was at Horizon, [the 

antibiotic] was administered more than an hour late 14 times. 

Some administrations were two to three hours later than the 

scheduled administration times. This inconsistency in his 

receiving the antibiotic more likely than not affected

maintaining a therapeutic level of the antibiotic to treat the 

endocarditis.

Wills also opined that shortly before Antonio’s death, Horizon’s nurse 

failed to adequately monitor him during intravenous administration of the 

antibiotic. Antonio’s treatment chart noted that administration of the 

antibiotic began at 11:46 p.m. on May 6, 2017, and indicated that the nurse

returned at 1:10 a.m. on May 7, “finding him without a pulse and not 

breathing.” Wills concluded:

In failing to return to monitor during the continuous infusion 

of antibiotic during the hour, there was no consideration 

made of the possibility of an adverse event relevant to the 

medication administration. The failure to intervene caused 

Antonio’s death. 

Finally, Wills stated that Horizon’s nursing staff did not follow the care plan 

established for the antibiotic therapy and failed to develop a care plan 

relevant to the “medical diagnosis of endocarditis/valve replacement, and 

pacemaker implantation.” She concluded that “[t]his negligent breach of
ARNOLD, et al. v. VIEWPOINT, et al.

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the standard of medical care and the failure to consistently monitor the 

patient, caused Antonio to pass away.” 

¶7 In June 2022, the superior court dismissed Parents’ second

amended complaint against Horizon without prejudice.

1 The court noted

that although Wills was qualified to testify about alleged deviations in the 

standard of care, she was not qualified to opine that any nursing 

interventions would have changed Antonio’s death due to 

endocarditis/valvular heart failure. Ultimately, the court concluded that 

Parents failed to comply with A.R.S. § 12-2603(B)(4), requiring an identified 

expert to establish causation, and Arizona Rule of Evidence (“Rule”) 702,

regarding expert qualifications. 

¶8 Parents sought entry of final judgment or alternative relief

under the savings statute, A.R.S. § 12-504, and refiled their lawsuit against 

Horizon. The superior court consolidated the actions but declined to allow 

the refiling of the lawsuit under the savings statute. The court relied on 

Passmore v. McCarver, 242 Ariz. 288 (App. 2017), finding that Parents failed 

to prosecute their case. The court dismissed the newly filed complaint and 

entered a judgment of dismissal with prejudice, from which Parents appeal. 

DISCUSSION

I. Causation Testimony

¶9 Parents argue the superior court erred by holding their 

disclosed expert lacked the specialized knowledge to assist a jury in 

determining causation under Rule 7022 and A.R.S. § 12-2603. The superior 

court referred to Rule 702 as the standard governing expert qualifications. 

1 Parents settled with or dismissed the remaining defendants. 

2 Regardless of the rule or statute cited, A.R.S. § 12-2603 defines an 

expert in the same way as Rule 702, which governs expert witness 

testimony. Rasor v. Nw. Hosp. LLC, 244 Ariz. 423, 426, ¶ 12 (App. 2018); 

compare A.R.S. § 12-2603(H)(2) with Ariz. R. Evid. 702. Under Rule 702, 

“[f]or a witness to be qualified as an expert, he or she need only possess 

‘skill and knowledge superior to that of [people] in general.’” State v. 

Romero, 239 Ariz. 6, 10, ¶ 17 (2016) (citations omitted). Notwithstanding 

knowledge superior to that of the general population, ultimately a 

causation expert’s knowledge must be such that the expert’s testimony

“will assist the jury in its resolution” of causation. Rasor, 244 Ariz. at 429, 

¶ 23 (citation omitted); see also Windhurst v. Ariz. Dep’t of Corrs., ___ Ariz. 

___, ___, ¶ 47, 536 P.3d 764, 775 (2023).
ARNOLD, et al. v. VIEWPOINT, et al.

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Given the procedural posture of this case and the lack of any expert witness 

testimony, in this decision we refer to A.R.S. § 12-2603(B)(1)’s requirement 

that the affidavit set forth an expert’s qualifications to opine on liability. We 

“must determine whether the judgment, not the reasoning, of the superior 

court was correct.” Picaso v. Tucson Unified Sch. Dist., 217 Ariz. 178, 181, ¶ 9

(2007).

¶10 We review the superior court’s ruling determining an expert’s 

qualifications for abuse of discretion. Baker v. Univ. Physicians Healthcare, 

231 Ariz. 379, 387, ¶ 30 (2013). We review de novo the dismissal for the 

failure to “properly certify the non-frivolous nature of the complaint 

pursuant to A.R.S. § 12-2603.” Boswell v. Fintelmann, 242 Ariz. 52, 54, ¶ 5

(App. 2017). 

¶11 In adopting A.R.S. § 12-2603, requiring a preliminary expert

opinion affidavit, the legislature has “erect[ed] an orderly procedure by 

which the parties can litigate what expert witness testimony will be 

necessary and what experts must be disclosed.” Sanchez v. Old Pueblo 

Anesthesia, P.C., 218 Ariz. 317, 323, ¶ 20 (App. 2008). The statute “does not

require that the expert giving the preliminary affidavit serve as the expert 

at trial.” Jilly v. Rayes, 221 Ariz. 40, 42–43, ¶ 6 (App. 2009). The affidavit 

requirement is “meant to certify that the action . . . is not meritless.” Id. at 

43, ¶ 6. 

¶12 The affidavit must contain the expert’s qualifications to opine 

on the health care professional’s standard of care or—as relevant here—

liability. A.R.S. § 12-2603(B)(1). An expert providing a preliminary expert 

opinion affidavit must be “a person who is qualified by knowledge, skill, 

experience, training or education to express an opinion regarding a licensed 

health care professional’s standard of care or liability for the claim.” A.R.S. 

§ 12-2603(H)(2). The affidavit must also state “[t]he manner in which the 

health care professional’s acts, errors or omissions caused or contributed to 

the damages or other relief sought by the claimant.” A.R.S. § 12-2603(B)(4); 

see also Gorney v. Meaney, 214 Ariz. 226, 231–32, ¶ 16 (App. 2007) (noting that 

the preliminary expert opinion affidavit must state that the alleged 

deviations in the standard of care proximately caused the harm).

¶13 Here, Wills’ affidavit failed to comply with A.R.S. 

§ 12-2603(B)(4) because it failed to explain how any failure of care led to 

Antonio’s death. The affidavit also failed to identify Wills’ qualifications 

that would enable her to draw such inferences, as required by A.R.S. 

§ 12-2603(B)(1). 
ARNOLD, et al. v. VIEWPOINT, et al.

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¶14 Wills’ first causation opinion addressed the untimely 

administration of Antonio’s antibiotics. While Wills opined that delays in 

medication administration resulted in the failure to maintain a therapeutic 

level of the antibiotic to treat Antonio’s endocarditis, she did not sufficiently 

state the “manner in which” this failure caused Antonio’s death as required 

by A.R.S. § 12-2603(B)(4). Specifically, Wills failed to determine at what 

point the failure to timely administer the antibiotic resulted in 

sub-therapeutic levels of the antibiotic or if timely administration would 

have prevented his death. And nothing in Wills’ affidavit or attached 

curriculum vitae, such as experience in pathophysiology or the 

pharmacokinetics of antibiotic therapy, showed that she was qualified 

under A.R.S. § 12-2603(B)(1) or -2603(H)(2) to opine on the therapeutic level 

of an antibiotic. 

¶15 Wills next opined that Horizon’s nursing staff’s failure to 

monitor the antibiotic infusion in the hour preceding Antonio’s death 

caused his death. But Wills did not set forth the standard of care for 

appropriate monitoring of a patient for intravenous antibiotic 

administration,3 explain at what point proper monitoring would have 

prevented the death, or explain if the death could have been prevented by 

compliant monitoring. See Sampson v. Surgery Ctr. of Peoria, LLC, 251 Ariz. 

308, 313, ¶ 23 (2021) (affirming summary judgment when plaintiff’s expert’s 

testimony failed to “connect the dots” between an alleged insufficient 

observation and the patient’s death because the jury would be left to 

speculate). Wills did not satisfy A.R.S. § 12-2603(B)(4) because she did not 

explain how failure to monitor the infusion caused Antonio’s death. 

¶16 In their reply brief, Parents argue that Horizon nurses caused 

or contributed to Antonio’s death by “failing to intervene in his cardiac 

event and administer potentially life-saving [cardio-pulmonary 

resuscitation].” But medical malpractice cases require proof of causation by 

the probability standard, not the possibility standard. A.R.S. § 12-563(2); 

Kreisman v. Thomas, 12 Ariz. App. 215, 218 (1970).

¶17 Finally, Wills’ third causation opinion, criticizing Horizon’s 

treatment plans or lack thereof, was wholly conclusory and failed to link 

the flaws in the treatment plan to the mechanism of Antonio’s death. Wills 

did not state what an appropriate treatment plan would have been nor 

establish that the failure to have one caused Antonio’s death. Again, Wills 

3 For example, Wills did not explain whether the standard of care 

required continuous observation or periodic checks at specific intervals.
ARNOLD, et al. v. VIEWPOINT, et al.

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failed to show how Horizon’s actions or inaction caused Antonio’s death as 

required by A.R.S. § 12-2603(B)(4).

¶18 Parents’ remaining arguments are similarly unavailing. They 

argue that numerous other courts have permitted Wills to testify at 

depositions and at trial regarding medical negligence and causation. But 

Wills’ previous testimonial experience is irrelevant to the matter at hand. 

See Englehart v. Jeep Corp., 122 Ariz. 256, 258 (1979) (stating that “the fact that 

a witness has qualified as an expert on previous occasions does not make 

him any more qualified to testify in the case at bar”). Parents also argue that 

Wills’ affidavit need not have ruled out Antonio’s pre-existing conditions 

as his sole cause of death. Although we agree, Wills’ affidavit nevertheless

failed to sufficiently state the mechanism of death as required by A.R.S. 

§ 12-2603(B)(4). For the same reason, no further discovery examining Wills’ 

qualifications was necessary for the court to reach its conclusion. See

Sanchez, 218 Ariz. at 323–24, ¶ 23 (noting that A.R.S. § 12-2603 provides the 

remedy for testing the sufficiency of an expert affidavit). 

¶19 Because Parents failed to proffer a sufficient affidavit, the 

superior court did not err in dismissing the action under A.R.S. § 12-2603(F).

II. Relief Under A.R.S. § 12-504

¶20 Parents argue the superior court misapplied Passmore by 

concluding they failed to prosecute their case and denying relief to refile 

their cause of action under the discretionary provisions of the savings

statute, A.R.S. § 12-504(A).

4 We review for abuse of discretion the superior 

court’s denial of discretionary relief under the savings statute. Passmore, 242 

Ariz. at 291, ¶ 7; Jepson v. New, 164 Ariz. 265, 274 (1990).

¶21 When the superior court terminates an action for lack of 

prosecution, it should only grant relief under A.R.S. § 12-504(A) when the 

plaintiff demonstrates the case was dismissed “despite diligent pursuit of 

the case.” Jepson, 164 Ariz. at 274. The plaintiff has the burden to present the 

circumstances justifying relief under the statute. Id. at 272.

4 Horizon argues Parents waived this issue because when Parents

filed their motion for savings-statute relief, they asserted they were neutral 

about whether the superior court should grant savings-statute relief or

enter final judgment. But Parents only sought savings-statute relief after 

they moved for entry of final judgment, and a co-defendant responded that 

the court should deny entry of final judgment because Parents could seek 

relief under the savings statute. We find no waiver.
ARNOLD, et al. v. VIEWPOINT, et al.

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¶22 In Passmore, this court held that a dismissal for failure to serve 

a preliminary expert opinion affidavit is a dismissal for which the 

discretionary relief provision in A.R.S. § 12-504(A) applies. 242 Ariz. at 

291–92, ¶ 8. Parents argue that Passmore is inapposite because the plaintiff 

in Passmore failed to serve any preliminary expert opinion affidavits, which 

the superior court found amounted to lack of prosecution. See id. at 290, 

292–93, ¶¶ 2, 13. Parents note that they served three preliminary expert 

opinion affidavits; thus, they argue, they showed diligent efforts in 

prosecuting their case. But the record does not support Parents’ argument. 

In June 2021, the superior court struck Parents’ original and supplemental 

preliminary expert opinion affidavits against a co-defendant. In January 

2022, the superior court concluded that Parents’ more recent preliminary 

expert opinion affidavit by a second expert against that same co-defendant 

was deficient regarding causation. The sufficiency of affidavits regarding a

co-defendant is irrelevant to this appeal. More significantly, the holding in 

Passmore did not turn on attempted compliance with statutory obligations; 

it instead focused on the delay resulting from non-compliance. Id. at 292, 

¶ 9 (noting that “[m]ere delay can be the basis of dismissal” and the failure 

to satisfy A.R.S. § 12-2603 “is an unambiguous form of delay” (citation 

omitted)).

¶23 Parents contend that because the superior court failed to tell 

them they needed a physician to establish causation, they acted reasonably 

and in good faith in moving forward with a preliminary expert opinion 

affidavit from a nurse. But they did not necessarily need a physician 

expert—a nurse expert would have been acceptable. In fact, the court 

specifically cited Rasor, which held that a nurse may opine on causation if 

she or he has specialized knowledge to assist the jury in its resolution on 

the issue of causation. 244 Ariz. at 429, ¶ 23; see also Windhurst, ___ Ariz. at 

___, ¶ 47, 536 P.3d at 775. The affidavit was deficient not because it was 

provided by a nurse expert, but rather because it did not assist in the 

resolution of the cause of Antonio’s death.

¶24 We conclude the superior court correctly determined Wills’ 

affidavit did not satisfy A.R.S. § 12-2603 regarding causation. This failure 

amounted to a lack of prosecution for which Parents fail to meet their 

burden to present circumstances justifying discretionary relief under A.R.S. 

§ 12-504(A). 
ARNOLD, et al. v. VIEWPOINT, et al.

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CONCLUSION

¶25 For the foregoing reasons, we affirm the superior court’s 

ruling. We award costs to Horizon upon compliance with ARCAP 21.