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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

WILLIAM ARNOLD, et al.
, Plaintiff s / Appellants
,

v.

VIEWPOINT HEALTHCARE, INC, et al.
, Defendant s /Appellee s

.
No. 1 CA

- CV 23

- 0271

Appeal from the Superior Court in Maricopa County

No s . CV2019

- 050255 CV2022

- 053714 (Consolidated) The Honorable Melissa Iyer Julian , Judge The Honorable Sara Agne, Judge

AFFIRMED

COUNSEL
Reynolds Legal Group PLL C
, Flagstaff By Michael T. Reynolds Counsel for Plaintiff

s / Appellants

Ensign Services Inc

. , Higley By Michael J. Ryan, Nichole Cullen C o

- C ounsel for Defendant s /Appellee s

Jones Skelton & Hochuli PLC
, Phoenix By Jonathan Paul Barnes, Jr. C o

- Counsel for Defendants/Appellees FILED 01-23-2024ARNOLD, 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 saving s 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, d octors 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 o n 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, ParentsARNOLD, 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 h ad 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 opinio n 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 :

I n fail ing 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, Wil l s 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 di agnosis of endocarditis/valve replacement
, and pacemaker implantation. ” She concluded that “[t]his negligent breach ofARNOLD, et al. v. VIEWPOINT, et al. Decision of the Court

4 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 P arents ’ 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 c ourt 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 rel ied on Passmore v. McCarver , 242 Ariz. 288 (App. 2017)
, finding that Parents failed to prosecute their case. The court dismissed the newl y 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 702 2 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. N

w. 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, u ltimately 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 Windhu r st v. Ariz. Dep’t of Corrs
., ___ Ariz. ___, ___, ¶ 47, 536 P.3d 764, 775 (2023).ARNOLD, et al. v. VIEWPOINT, et al. Decision of the Court

5 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. W e “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. F intelman n , 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 ac tion . . . 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 Go rney 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. Decision of the Court

6 ¶14 Wills’ first causation opinion addressed the untimely administration of Antonio ’s antibiotics. While Wills opine d that delays in medication administration result e d 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 fail ed to determine at what point the failure to timely administer the antibiotic resulted in sub

- the rapeutic 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 administratio n, 3 explain at what point proper monitoring would have prevented the death
, or explain if the death could have been prevented by compli a nt monitoring

. See Sampson v. Surgery Ctr. of Peoria, LLC , 251 Ariz. 308, 313, ¶ 23 (2021) (affirming summary judgment when plaintiff’s expert’s testimony fail ed 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 m edical 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 fail ed 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 be en 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. Decision of the Court

7 fail ed 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 doe s not make him any more qualified to testify in the case at bar”). Parents also argue tha t Wills’ affidavit need not have rule d 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 , n o 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 U nder 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 provision s of the saving s 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. Decision of the Court

8 ¶22 In Passmore , t his 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 t he plaintiff in Passmore failed to serve any preliminary expert opinion affidavit s , which the superior court found amounted to lack of prosecution. See i d

. 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 t he record does not support Parents’ argument. In June 2021, the superior court struck Parents ’ original and supplemental preliminary expert opinion affidavit s 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 a c ted reasonably and in good faith in moving forward with a preliminary expert opinion affidavit from a nurse

. But they did not necessari l y need a physician expert

— a nurse expert would have been acceptable

. In fact, t he court specifically cited Ra s or

, 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 42 9 , ¶ 23 ; see also Windhu r st , ___ 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. Decision of the Court

9 CONCLUSION

¶25 For the foregoing reasons, we affirm the superior court’s ruling. We award costs to Horizon upon compliance with ARCAP 21.