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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

BROOKE AMICK, Plaintiff/Appellant/Cross-Appellee, 

v.

BANNER HEALTH, an Arizona Corporation, dba Banner Desert Medical 

Center, Defendant/Appellee/Cross-Appellant, 

and 

JOHN I. ISKANDAR, et al., Defendants/Appellees. 

No. 1 CA-CV 22-0401 

Appeal from the Superior Court in Maricopa County 

No. CV2019-011659 

The Honorable Daniel G. Martin, Judge 

REVERSED AND REMANDED 

COUNSEL 

Beale Micheaels Slack & Shughart PC, Phoenix 

By John A. Micheaels, K. Thomas Slack, Tracy A. Gromer 

Counsel for Plaintiff/Appellant/Cross-Appellee 

The Checkett Law Firm PLLC, Phoenix 

By John J. Checkett, James G. Bennett 

Co-Counsel for Defendant/Appellee/Cross-Appellant

FILED 8-15-2023
2 

Jones Skelton & Hochuli PLC, Phoenix 

By Eileen Dennis GilBride 

Co-Counsel for Defendant/Appellee/Cross-Appellant

Crawford & Kline PLC, Tempe 

By Bruce D. Crawford 

Co-Counsel for Defendants/Appellees

Quintairos Prieto Wood & Boyer PA, Scottsdale 

By Rita J. Bustos 

Co-Counsel for Defendants/Appellees

MEMORANDUM DECISION 

Judge Michael S. Catlett delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Michael J. Brown joined. 

C A T L E T T, Judge: 

¶1 Brooke Amick (“Amick”) appeals the superior court’s 

judgment and denial of a motion for new trial after a jury verdict in favor 

of Dr. John J. Iskandar (“Dr. Iskandar”) in this medical malpractice case. 

Banner Health dba Banner Desert Medical Center (“BDMC”) cross-appeals 

from the court’s pretrial grant of partial summary judgment to Amick based 

on vicarious liability. 

¶2 We reverse the court’s rulings precluding certain testimony 

from treating physician Dr. David Suber and evidence of a second surgery. 

We also reverse the court’s grant of partial summary judgment to Amick on 

the issue of vicarious liability. We remand for a new trial and, in so doing, 

provide guidance on a negative inference issue. 

FACTS AND PROCEDURAL HISTORY 

¶3 On August 24, 2017, Amick went to BDMC’s emergency 

room. Dr. Iskandar, the on-call neurosurgeon, was brought in to treat 

Amick. Dr. Iskandar determined that Amick was suffering from 

ossification of the posterior longitudinal ligament (“OPLL”) that had 

caused narrowing of the cervical canal from the C2 to C6 vertebrae. Dr. 

Iskandar diagnosed Amick with severe cervical spinal stenosis 

(narrowing). Dr. Iskandar recommended surgical laminectomy—removal 
AMICK v. BANNER HEALTH 

Decision of the Court 

3 

of the lamina (back section)—of the C2-C6 spinal vertebrae to relieve spinal 

cord compression caused by Amick’s severe OPLL. 

¶4 On August 28, 2017, Dr. Iskandar performed a partial 

laminectomy of Amick’s C2 vertebra and a total laminectomy at C3-C6 to 

decompress Amick’s spinal cord. Dr. Iskandar then installed hardware, 

including screws and rods, to support Amick’s spinal cord. Dr. Iskandar 

completed surgery at approximately 4:45 p.m. 

¶5 After waking up, Amick reported severe incisional pain and 

an inability to move her extremities. At approximately 6:00 p.m., Dr. 

Iskandar evaluated Amick, noting sensation in all four extremities and 

slight movement in her forearms and shoulders. He ordered an emergency 

CT scan. A radiologist interpreted the CT scan images and authored a 

report at 6:59 p.m., noting “[s]evere spinal canal stenosis and presumed 

cervical cord compression at the level of C2-C3[.]” 

¶6 Dr. Iskandar also reviewed the CT scan images, noting “CT of 

C-spine - anatomic alignment with well-decompressed spinal canal.

Hardware was intact and in good position.” He again examined Amick,

whose condition remained unchanged. Dr. Iskandar ordered a consult

from neurologist Dr. David Suber to assess Amick for a possible

“conversion reaction.” But Dr. Iskandar did not place this order on an

emergency basis.

¶7 The following morning, more than 12 hours after surgery, Dr. 

Suber evaluated Amick and ordered further imaging studies on an 

emergency basis. Later that morning, Dr. Iskandar again evaluated Amick 

and determined she was a complete quadriplegic. Amick suffered a cardiac 

arrest and coded. She was resuscitated and admitted to the intensive care 

unit. Dr. Iskandar documented in Amick’s medical records that he 

discussed concerns with Amick’s family about a “spinal cord reperfusion 

injury.” Amick remained in the intensive care unit until September 29, 

2017, when she was discharged from BDMC. 

¶8 After deciding she wanted a second opinion, on October 5, 

2017, Amick was seen by neurosurgeon Dr. Udaya Kakarla. About two 

weeks later, on October 20, 2017, Dr. Kakarla performed surgery on Amick. 

Dr. Kakarla documented “residual stenosis” and performed a complete 

laminectomy at C2 with “the chance of meaningful recovery [being] very 

slim.” Amick did not regain any motor function following the second 

surgery but reported she regained some sensation of pain. 
AMICK v. BANNER HEALTH 

Decision of the Court 

4 

¶9 Amick filed a lawsuit against Dr. Iskandar, Dr. Suber, BDMC, 

and others. During discovery, and while still a party, Dr. Suber testified at 

deposition that if Dr. Iskandar had told him the night of the surgery that 

Amick was unable to move her extremities and the post-operative CT scan 

showed severe compression and stenosis at the C2-C3 level, he would have 

told Dr. Iskandar that Amick “need[ed] neurosurgical attention and 

[needed] to be taken back for further decompressive surgery.” He testified 

that the decision to take her back to surgery was a neurosurgical decision. 

He also testified that when he reviewed the CT scan the morning after the 

surgery, he found that Amick had “persistent, severe spinal canal stenosis 

at the C2-C3 level and compression” of the cervical cord at that level. 

¶10 Amick agreed to dismiss Dr. Suber (and other parties) before 

the trial, leaving Dr. Iskandar and BDMC as remaining defendants. The 

superior court granted summary judgment to Amick on her claim that 

BDMC was vicariously liable for Dr. Iskandar, finding that Dr. Iskandar 

was BDMC’s apparent agent. The court granted partial summary judgment 

to Dr. Iskandar on a discrete causation issue, concluding that Amick had 

failed to establish by expert medical testimony that treatment beyond the 

6-12-hour post-operative period would have prevented her spinal cord

injury.1 The court, therefore, later precluded Amick from introducing any

evidence regarding her second surgery, including Dr. Kakarla’s notes.

¶11 The superior court presided over a 15-day jury trial. One of 

the central issues was the cause of Amick’s spinal cord injury. Amick’s 

theory was that her injury was caused by inadequate decompression of her 

spine because Dr. Iskandar performed only a partial laminectomy of the C2 

vertebra. Dr. Iskandar’s experts opined that he performed an appropriate 

partial laminectomy. Still, due to the laminectomies performed on the other 

areas of the spine, a rush of blood back into Amick’s spinal cord 

overwhelmed it and resulted in what is known as a “reperfusion injury.” 

¶12 Amick’s neurosurgery expert, Dr. Richard Wohns, testified 

that Dr. Iskandar fell below the standard of care by performing only a 

partial laminectomy, and that he should have taken Amick back to surgery 

to complete the laminectomy immediately upon learning of her postsurgical complaints—with or without the results of the emergency CT scan. 

The jury heard evidence that Dr. Iskandar had a narrow 6–12-hour window 

of opportunity after surgery to avoid permanent damage to Amick. Dr. 

Wohns testified that the post-operative CT scan showed severe narrowing 

in Amick’s spine. Amick’s causation expert, Dr. Richard Latchaw, also 

1 Amick did not appeal this ruling. 
AMICK v. BANNER HEALTH 

Decision of the Court 

5 

testified that the post-operative CT scan showed persisting stenosis and 

cord deformity. Dr. Iskandar’s neurosurgery expert, Dr. Omar Zalatimo, 

testified that the post-operative imaging did not show continued spinal 

cord compression but rather showed evidence of a reperfusion injury. 

¶13 During trial, the superior court precluded Amick’s counsel 

from eliciting testimony from Dr. Suber about what he would have done 

had Dr. Iskandar requested an emergency consult the night of the surgery 

and what he observed when he reviewed Amick’s CT scan. Dr. Suber 

ultimately testified only that he was not asked to perform an emergency 

neurology consultation on August 28, 2017 but would have done so if he 

had been asked, and he would have then reviewed any available imaging 

studies. And he testified that he performed a non-urgent neurological 

examination on August 29, 2017, at approximately 7:00 a.m., determining 

that Amick was completely paralyzed. 

¶14 Amick’s friend testified at trial that shortly before Amick’s 

discharge from BDMC, Dr. Iskandar’s nurse, Karla Baning, told her “off the 

record” that Amick’s imaging did not support the reperfusion injury 

theory. Nurse Baning denied this claim at trial. 

¶15 The jury rendered a defense verdict. The superior court 

entered final judgment and denied Amick’s motion for a new trial. 

DISCUSSION

I. Jurisdiction

¶16 Following entry of final judgment and the superior court’s 

denial of her motion for new trial, Amick filed a notice of appeal. On July 

19, 2022, this Court stayed the appeal because, at the time of final judgment 

(January 19, 2022), Amick still had a claim pending against a party and the 

superior court did not sign the ruling denying Amick’s motion for new trial. 

But Amick had settled with the unresolved party on January 28, 2022. This 

Court, therefore, revested jurisdiction in the superior court to allow it to 

consider a motion from Amick for a new “signed judgment with Rule 54(c) 

finality language” and a signed order denying her motion for new trial. 

This Court ordered that the “stay will be lifted automatically when this 

court receives the signed Rule 54(c) judgment and signed order.” 

¶17 On August 9, 2022, the superior court entered a signed Rule 

54(c) judgment and, on August 11, 2022, a signed order denying Amick’s 

motion for new trial. This Court re-instated the appeal. 
AMICK v. BANNER HEALTH 

Decision of the Court 

6 

¶18 BDMC then asked this Court to dismiss the appeal for lack of 

jurisdiction, arguing Amick failed to timely appeal the new final judgment 

the superior court entered on August 9, 2022. BDMC’s motion was referred 

to Chief Judge Cattani, who denied the motion. In so doing, Chief Judge 

Cattani explained that, because Amick had settled with the sole remaining 

defendant prior to filing her notice of appeal, “everything was resolved 

when Plaintiff filed the notice of appeal and only the ministerial tasks of 

entering a judgment with Rule 54(c) language and a signed order ruling on 

the motion for new trial remained.” BDMC did not file a motion for 

reconsideration. 

¶19 Instead, BDMC filed an answering brief requesting 

“reconsideration of a jurisdictional issue” previously raised in its motion to 

dismiss. BDMC asks us to reconsider Chief Judge Cattani’s decision, 

arguing again that Amick was required to file a second notice of appeal 

because the superior court entered the original judgment while a claim 

against a defendant remained pending. We will not do so. Instead, we 

agree with Chief Judge Cattani that the pertinent date for determining 

whether something more than a ministerial task remained pending is the 

date of Amick’s notice of appeal—May 25, 2022. As of that date, the trial 

court had resolved all claims against all parties, and all that remained were 

the ministerial tasks of entering a 54(c) judgment and a signed order 

denying Amick’s motion for new trial. See Smith v. Ariz. Citizens Clean 

Election Comm’n, 212 Ariz. 407, 415 ¶ 37 (2006) (the “limited exception” for 

premature appeals applies “if no decision of the court could change and the 

only remaining task is merely ministerial”); Tripati v. Forwith, 223 Ariz. 81, 

86 ¶ 22 (App. 2009) (the “notice of appeal, although premature, became 

effective upon entry of the signed order denying his motion for new trial”). 

We, like Chief Judge Cattani, conclude that Amick’s premature notice of 

appeal became effective after entry of final judgment and a signed order 

denying Amick’s motion for new trial. We, therefore, have jurisdiction 

under A.R.S. § 12-120.21(A)(1), A.R.S. § 12-2101(A), and Arizona Rule of 

Civil Appellate Procedure 9(c). 

II. Exclusion of Evidence

A. Dr. Suber’s Testimony

¶20 Amick argues the superior court committed reversible error

in finding that some of Dr. Suber’s testimony was inadmissible under the

“One-Expert Rule” and, therefore, limiting the scope of his testimony at

trial. Dr. Iskandar argues the court properly excluded the testimony, but
AMICK v. BANNER HEALTH 

Decision of the Court 

7 

that even if doing so was erroneous, Amick is not entitled to a new trial. 

We agree with Amick. 

¶21 Under Arizona Rule of Civil Procedure (“Rule”) 26(b)(4)(F)(i), 

each side is “presumptively entitled to call only one retained or specially 

employed expert to testify on an issue.” This restriction is known, and 

referred to herein, as the “One-Expert Rule.” Whether a party violates “the 

One-Expert Rule is a mixed question of law and fact.” McDaniel v. Payson 

Healthcare Mgmt., Inc., 253 Ariz. 250, 255 ¶ 14 (2022). As a mixed question, 

we defer to factual findings but review legal conclusions de novo. Id. 

¶22 In McDaniel—our supreme court’s most recent word on the 

One-Expert Rule—the court provided guidance on how to differentiate fact 

and expert witnesses in the medical malpractice context.2 The court 

explained that “the dispositive inquiry is whether the treating physicians 

testified based on their observations and actions in treating [a patient], 

regardless of whether in explaining their treatment decisions they also 

offered opinions about the standard of care.” Id. at 256 ¶ 20. Crucially, “a 

fact witness may also offer expert opinion testimony without violating the 

One-Expert Rule when the witness’ testimony is based on personal 

observations and actions.” Id. at 255 ¶ 20. 

¶23 No one disputes that Dr. Suber was Amick’s treating 

neurologist and was not retained or specially employed to testify on an 

issue. At one point, Dr. Suber was a defendant in this action. By the time 

of trial, Dr. Suber was an adverse witness compelled to attend and provide 

testimony because of a subpoena from Amick. Thus, Dr. Suber did not 

qualify as a “retained or specially employed expert” within the text of the

One-Expert Rule. See Ariz. R. Civ. P. 26(b)(4)(F)(i). 

¶24 Under McDaniel, Dr. Suber’s proposed testimony was not 

inadmissible under any broader understanding of the One-Expert Rule. Dr. 

Suber would have testified at trial (1) about what he observed when he 

reviewed Amick’s CT scan and (2) what he would have recommended had 

Dr. Iskandar asked him to perform an urgent consult on August 28, 2017. 

As to the urgent consult issue, Dr. Suber would have testified that, based 

on custom and practice, he would have seen Amick that evening. And, 

based on the CT scan images he eventually reviewed on August 29, 2017, 

he would have recommended to Dr. Iskandar that Amick immediately go 

back into surgery to relieve compression of the spinal cord. His proposed 

2 The superior court did not have the benefit of McDaniel at the time it 

made the evidentiary rulings at issue. 
AMICK v. BANNER HEALTH 

Decision of the Court 

8 

testimony is fact witness testimony. Asking a physician to provide custom 

and practice testimony based on his observations during treatment does not 

render the testimony expert testimony—McDaniel says that a treating 

physician can provide standard-of-care testimony. See 253 Ariz. at 255–56 

¶¶ 20–21. Under McDaniel, therefore, Dr. Suber could testify about his 

observations in treating Amick, and what he would have recommended 

had he seen her sooner, without violating the One-Expert Rule. Id. 

¶25 Moreover, it was prejudicial to exclude Dr. Suber’s testimony. 

One of Dr. Iskandar’s primary trial theories was that Amick’s quadriplegia 

resulted from reperfusion, not compression. Dr. Suber’s excluded 

testimony is relevant to refuting that theory because he would have testified 

that she was suffering from compression post-surgery. Dr. Iskandar also 

theorized that there was nothing he could have done further for Amick 

until it was too late. Specifically, Dr. Iskandar testified at trial that between 

8:00 p.m. on August 28, 2017 and the next morning, there was nothing for 

him to do for Amick from a neurosurgery perspective. Dr. Suber’s 

excluded testimony could have helped refute that claim in the jury’s mind. 

The jury would hear from Amick’s treating neurologist that had Dr. 

Iskandar requested an urgent consult on August 28, Dr. Suber would have 

seen Amick that night and recommended additional and immediate 

surgery. Dr. Iskandar downplays this proposed testimony because Dr. 

Suber is not a neurosurgeon and could not decide whether additional 

surgery would occur. But the fact a non-neurosurgeon would have 

recommended additional surgery furthers Amick’s theory that Dr. 

Iskandar, as a neurosurgeon, should have readily realized on August 28 

that additional surgery was necessary. 

B. Second Surgery Evidence

¶26 Amick argues the superior court also improperly excluded all

evidence of her second surgery, including Dr. Kakarla’s post-operative note

that he observed “residual stenosis” during the second surgery. Amick

argues evidence of her second surgery was relevant to causation and

damages. Dr. Iskandar maintains that evidence of the second surgery was

irrelevant based on the superior court’s summary judgment ruling on

causation, which granted Dr. Iskandar judgment on any theory “that

[Amick’s] spinal cord injury was reversible more than 6-12 hours after

surgery.” We agree with Amick here too.

¶27 The court precluded evidence of Amick’s second surgery, 

finding that Dr. Kakarla’s description in his post-operative notes was 

additional expert opinion supporting that Dr. Iskandar failed to do a 
AMICK v. BANNER HEALTH 

Decision of the Court 

9 

complete decompression, causing continued spinal cord compression and 

quadriplegia. The court believed the second surgery evidence was 

cumulative to testimony from Amick’s retained expert, Dr. Wohns. But 

there is no dispute that Dr. Kakarla was Amick’s treating neurosurgeon and 

the notes sought to be introduced reflect his personal observations of 

Amick’s spine during surgery. This evidence is not cumulative expert 

opinion and does not otherwise violate the One-Expert Rule. See McDaniel, 

253 Ariz. at 255–56 ¶¶ 20–21. 

¶28 We also disagree with the notion that the second surgery 

evidence is irrelevant because of the superior court’s (unchallenged) 

summary judgment ruling on causation. Amick sought to introduce the 

second surgery evidence, in part, to refute Dr. Iskandar’s reperfusion injury 

theory. The excluded evidence was relevant to help refute that theory. Two 

months after Amick’s first surgery, Dr. Kakarla personally viewed Amick’s 

spine and visualized “residual stenosis.” He then performed a complete 

laminectomy, which supports Amick’s theory that Dr. Iskandar was 

negligent in performing only a partial laminectomy. 

¶29 Dr. Kakarla’s documentation about the need for a second 

surgery and what he discovered during that surgery was also relevant to 

Dr. Iskandar’s defense theory that there was nothing additional he could 

have done after Amick’s first surgery. The fact a second treating 

neurosurgeon concluded that additional decompression surgery was 

required could lead the jury to conclude that Dr. Iskandar should have 

realized the same on August 28, 2017, within the 6-12-hour post-operative 

window of opportunity. Using the evidence in such a manner is not 

inconsistent with the court’s summary judgment ruling on causation—

Amick can argue that the stenosis Dr. Kakarla observed was present on 

August 28 and the surgery he later performed should and could have been 

performed within the 6-to-12-hour window. 

¶30 The second surgery evidence was also relevant to disputed 

testimony that Nurse Baning confidentially disclosed shortly before 

Amick’s discharge that compression, not reperfusion, was the underlying 

medical issue. The jury could find the fact that Amick immediately sought 

a second opinion from a different neurosurgeon, which resulted in a second 

surgery, supports that the statement was made. The second surgery was 

also relevant to Amick’s damages. 
AMICK v. BANNER HEALTH 

Decision of the Court 

10 

C. New Trial

¶31 In sum, the superior court erred by precluding Dr. Suber’s

additional testimony and evidence of Amick’s second surgery. Those

errors were prejudicial because the evidence excluded was relevant (each

in multiple ways) to the claims and defenses in the case. We, therefore,

vacate the judgment in favor of Dr. Iskandar and remand for a new trial.

See In re Conservatorship for Hardt, 242 Ariz. 449, 453 ¶ 17 (App. 2017)

(reversing for a new trial based on the erroneous exclusion of evidence

under the One-Expert Rule).

III. Negative Inference Guidance

¶32 Because the issue may arise on remand, we address Amick’s 

argument that the superior court erred in precluding her counsel from 

arguing a “negative inference” in closing argument based on Dr. Iskandar’s 

decision not to provide standard of care testimony in his own defense. 

¶33 Under Arizona Rule of Civil Procedure 26(b)(4)(F)(ii), “a 

defendant in a medical malpractice action may—in addition to that 

defendant’s standard-of-care expert witness—testify on the issue of that 

defendant’s standard of care.” While Dr. Iskandar testified at trial, he did 

not provide standard-of-care testimony, instead relying on expert 

testimony. At a pre-trial conference, Amick argued that her counsel should 

be able to comment in closing argument on that decision, and that the jury 

could, if it chooses, draw a negative inference. Relying on Gordon v. Liguori, 

182 Ariz. 232, 236 (App. 1995), the superior court ruled that because Dr. 

Iskandar testified as a fact witness, Amick’s counsel could not suggest in 

closing argument that the jury should draw any inference from Dr. 

Iskandar’s failure to testify as to the standard of care. 

¶34 If, on remand, Dr. Iskandar does not provide standard of care 

testimony, Amick’s counsel is permitted to draw the jury’s attention to that 

failure and argue all reasonable inferences therefrom, including inferences 

that are negative for Dr. Iskandar. Of course, Dr. Iskandar’s counsel is 

permitted to respond to those arguments during closing. If, for example, 

Amick’s counsel does not cross-examine Dr. Iskandar on standard of care 

issues, Dr. Iskandar’s counsel is permitted to point that failure out. 

¶35 Counsel has wide latitude in closing argument to “comment 

on the evidence and argue all reasonable inferences therefrom.” State v. 

Zaragoza, 135 Ariz. 63, 68 (1983). This Court has previously explained that 

“[t]he general rule” when a party declines to testify “is that a negative 

inference is appropriate and that no analysis of factors like those described 
AMICK v. BANNER HEALTH 

Decision of the Court 

11 

in Liguori is necessary.” Melissa W. v. Dep’t of Child Safety, 238 Ariz. 115, 

116–17 ¶ 5 (App. 2015); see also Orosco v. Maricopa Cnty. Special Health Care 

Dist., 2017 WL 443531, at *2 ¶ 12 (Ariz. Ct. App. Feb. 2, 2017) (“Under 

Arizona law, the jury may draw a negative inference when a party declines 

to testify in a civil case.”). We think the same holds true when a party 

testifies on some matters but not others—a party cannot avoid closing 

argument commentary on missing testimony by taking the stand and 

selectively discussing some relevant matters. The adversarial process 

demands that one party be permitted to argue to the jury that there were 

holes in another party’s testimony. 

¶36 Even if this were a situation requiring analysis of the Liguori

factors, those factors support that Amick’s counsel should have been 

permitted to comment on Dr. Iskandar’s failure to provide standard of care 

testimony. As a practical matter, Dr. Iskandar was “in the best position to 

anticipate the content of [his] testimony.” Melissa W., 238 Ariz. at 117 ¶ 7. 

Dr. Iskandar would naturally be expected to provide standard of care 

testimony if it would be helpful. See id. And Dr. Iskandar, as Amick’s 

treating neurosurgeon, certainly could offer unique testimony about how 

he thinks he met the standard of care during Amick’s operation and after. 

On remand, if Dr. Iskandar fails to provide standard of care testimony, 

Amick is permitted to comment on that failure during closing argument 

and suggest to the jury that it should draw a negative inference therefrom 

(and Dr. Iskandar can then respond accordingly during closing). 

IV. Cross-Appeal

¶37 BDMC cross-appeals the superior court’s pretrial grant of 

partial summary judgment to Amick on her claim that BDMC is vicariously 

liable for Dr. Iskandar’s alleged negligence.3 The court concluded that Dr. 

Iskandar was BDMC’s apparent agent as a matter of law, and therefore did 

not address other agency theories. BDMC argues that, at the very least, 

there were material issues of fact precluding summary judgment on 

vicarious liability. 

¶38 We review de novo a grant of summary judgment to determine 

if the superior court properly applied the law and whether any genuine 

issues of material facts exist. Ariz. R. Civ. P. 56(a); Dinsmoor v. City of 

3 The parties stipulated that the only claim against BDMC was for 

vicarious liability for the alleged negligence of Dr. Iskandar. 
AMICK v. BANNER HEALTH 

Decision of the Court 

12 

Phoenix, 251 Ariz. 370, 373 ¶ 13 (2021). We view the record in the light most 

favorable to BDMC. Dinsmoor, 251 Ariz. at 373 ¶ 13. 

¶39 We agree with BDMC that there were material issues of fact 

precluding summary judgment on Amick’s apparent and actual agency 

theories. We conclude that Amick’s argument that BDMC owed her a nondelegable duty fails as a matter of law. 

A. Material Facts

¶40 Amick sought medical care by going to BDMC, where Dr.

Iskandar was on-call and brought in as a neurosurgical consultant to

Amick. Amick was expected to testify that BDMC selected Dr. Iskandar to

be her neurosurgeon. Amick disclosed she would testify that “she

understood and believed” that Dr. Iskandar was the BDMC in-house

neurosurgeon and was employed by and working for BDMC. In deposition

testimony, Dr. Iskandar stated BDMC required physicians to always wear

a “Banner Health system physician identification badge” while working at

the hospital.

¶41 The parties stipulated that, at all relevant times, Dr. Iskandar 

worked in the course and scope of his employment with East Valley 

Neurosurgery (“EVN”). The medical services Dr. Iskandar provided to 

Amick were billed through EVN. And, upon admission to the hospital, 

Amick signed a “Condition of Admission and Treatment” (“Condition”), 

which stated in pertinent part: 

The patient will be treated by his/her attending physician, 

including physician extenders and covering physicians, and 

be under his/her care and supervision. Physicians and other 

health care providers furnishing services to the patient . . . are 

generally not employees or agents of the hospital, and the 

hospital is not liable for their actions or omissions. 

¶42 BDMC created policies and procedures applying to all staff 

and Dr. Iskandar. Dr. Iskandar testified that BDMC did not dictate or 

control the clinical care he provided Amick, and that he used his 

independent judgment in caring for and treating her. Dr. Iskandar, from 

2009 to August 2017, performed neurosurgery exclusively at BDMC 

pursuant to a contract between BDMC and EVN. BDMC paid Dr. Iskandar 

$3,500 per 24-hour shift to be available (i.e., “on-call”) to care for, or consult 

with, BDMC patients on short notice (usually within 30 minutes). BDMC 

furnished all operating rooms, equipment, instruments, nurses, staff, and 

administration necessary for Dr. Iskandar to provide neurological services 
AMICK v. BANNER HEALTH 

Decision of the Court 

13 

to BDMC patients. Dr. Iskandar served on various BDMC hospital 

committees. 

B. Apparent Agency

¶43 BDMC argues the superior court erred in concluding that Dr.

Iskandar was its apparent agent as a matter of law. A hospital may be liable

for a physician’s negligence under an apparent agency theory. See Reed v.

Gershweir, 160 Ariz. 203, 205 (App. 1989). The party asserting agency has

the burden of proof. Curran v. Indus. Comm’n of Ariz., 156 Ariz. 434, 437

(App. 1988). To prove apparent agency, Amick needed to show (1) that

BDMC intentionally or inadvertently led her to believe Dr. Iskandar was its

agent and (2) that she justifiably relied on BDMC’s representations. See

Fadely v. Encompass Health Valley of Sun Rehab. Hosp., 253 Ariz. 515, 520 ¶ 15

(App. 2022), review denied, (Dec. 6, 2022).

¶44 Amick asks us to adopt a standard employed in other 

jurisdictions. Under that standard, apparent authority exists between 

hospitals and doctors if the hospital “holds out” as providing services to 

the public. See Jennison v. Providence St. Vincent Med. Ctr., 25 P.3d 358, 365–

66 (Or. Ct. App. 2001). That standard, however, does not include Arizona’s 

justifiable reliance requirement, which this Court applied in the hospital 

context only a short time ago in Fadely.

4 See 253 Ariz. at 520 ¶ 15. We, 

therefore, decline to apply Amick’s proposed standard. 

¶45 Under the standard employed in Fadely, the record shows 

genuine issues of material fact as to both requirements of apparent agency. 

First, there is mixed evidence regarding whether BDMC led Amick to 

believe Dr. Iskandar was its agent—for example, while BDMC argues there 

is no proof Amick saw Dr. Iskandar’s BDMC badge or what impact it had 

on her perception of Dr. Iskandar’s relationship with BDMC, Amick 

disclosed she would testify that “she understood and believed” Dr. 

Iskandar was the BDMC in-house neurosurgeon and was employed by 

BDMC. BDMC relies heavily on the Condition Amick signed upon 

admission. But the Condition notified Amick only that physicians are 

“generally not employees or agents” of BDMC. Unlike the consent in Fadely, 

which unambiguously stated that all physicians were independent 

contractors, the Condition is equivocal as to Dr. Iskandar’s status. Second, 

there is mixed evidence as to justifiable reliance—for example, the parties 

dispute the extent to which BDMC’s holding out of Dr. Iskandar as its agent 

4 The superior court also did not have the benefit of Fadely when it 

issued the summary judgment decision. 
AMICK v. BANNER HEALTH 

Decision of the Court 

14 

caused Amick to rely upon the care or skill of Dr. Iskandar (as opposed to 

some other neurosurgeon). See Restatement (Second) of Agency § 267 

(1958) (justifiable reliance); see Fadely, 253 Ariz. at 520 ¶ 15 (citing 

Restatement (Second) of Agency § 267 with approval). On the summary 

judgment record, a reasonable factfinder could decide either way on both 

prongs of apparent agency. 

C. Actual Agency

¶46 Amick argues we can affirm summary judgment on alternate

grounds based on actual agency between BDMC and Dr. Iskandar. That a

physician is on a hospital staff does not necessarily render the physician a

hospital’s actual agent. See Evans v. Bernhard, 23 Ariz. App. 413, 417 (1975).

When determining whether a physician is a hospital’s agent, the fact finder

must examine the specific relational facts between the hospital and the

physician. Id. For a hospital to be liable for a physician’s negligence on

actual agency grounds, the focus is on the degree of the hospital’s control

over the physician. See Gregg v. Nat’l Med. Health Care Servs. Inc., 145 Ariz.

51, 55 (App. 1985). This Court’s prior decisions have analyzed the following

factors to determine actual agency: whether the hospital arranged services

for the physician’s patients, whether the hospital handled all billing,

whether the physician’s services were provided exclusively through the

hospital, whether the physician was the head of a hospital department, and

whether the physician’s group provided services pursuant to hospital rules

and procedures. See Beeck v. Tucson Gen. Hosp., 18 Ariz. App. 165, 170–171

(1972); Barrett v. Samaritan Health Servs., Inc., 153 Ariz. 138, 146 (App. 1987).

¶47 Whether agency exists is generally a fact question and only 

becomes a legal question when all material facts are undisputed. Ruesga v. 

Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, 596 ¶ 21 (App. 2007). The record 

shows disputed issues of material fact as to actual agency. On one hand, 

when treating Amick, Dr. Iskandar was working in the course and scope of 

his employment with EVN; all medical services Iskandar provided to 

Amick were billed through EVN; and Dr. Iskandar testified that BDMC did 

not dictate or control his clinical judgment when treating Amick. On the 

other hand, from 2009 to August 2017, Dr. Iskandar performed 

neurosurgery exclusively at BDMC; BDMC paid Dr. Iskandar $3,500 per 24-

hour shift to be available for BDMC patients; BDMC furnished all operating 

rooms, equipment, nurses, and staff necessary for Dr. Iskandar to provide 

neurological services to his BDMC patients; and Dr. Iskandar served on 

various BDMC committees. The parties also dispute whether BDMC 

required Dr. Iskandar to comply with various policies and procedures, and, 

as explained, the Condition Amick signed upon admission did not 
AMICK v. BANNER HEALTH 

Decision of the Court 

15 

unambiguously disclaim an agency relationship. We, therefore, do not 

alternatively affirm summary judgment based on actual agency. On 

remand, the factfinder should decide the actual agency issue. 

D. Non-Delegable Duty

¶48 Finally, Amick argues we should alternatively affirm partial

summary judgment on her vicarious liability claim because BDMC owed

her a non-delegable duty to provide competent emergency and surgical

care. A principal may be liable for an independent contractor’s negligence

when the principal has a non-delegable duty. Myers v. City of Tempe, 212

Ariz. 128, 132 ¶ 17 (2006). However, non-delegable duties are few. Id. at

132 ¶18. Non-delegable duties may be imposed by common law, statute,

contract, franchise, or charter. Ft. Lowell–NSS Ltd. P’ship v. Kelly, 166 Ariz.

96, 101 (1990). Without such authority, Arizona courts decline to recognize

a non-delegable duty. Santorii v. MartinezRusso, LLC, 240 Ariz. 454, 458 ¶

14 (App. 2016); see Myers, 212 Ariz. at 132–33 ¶¶ 17–19 (concluding that no

authority imposes a non-delegable duty on a city to provide emergency

services).

¶49 Here, Amick provides no basis to find that BDMC owed her a 

non-delegable duty to provide neurosurgical care. Amick concedes that no 

Arizona appellate court has found that a hospital owes a non-delegable 

duty to provide surgical care in circumstances like this. Each Arizona case 

Amick cites involved a non-delegable duty owed by a land possessor or by 

a governmental entity pursuant to statute. Kelly, 166 Ariz. at 104 (finding a 

land possessor vicariously liable for invitees’ injuries caused by an 

independent contractor, relying on the Restatement (Second) of Torts § 

422(b)); DeMontiney v. Desert Manor Convalescent Ctr. Inc., 144 Ariz. 6, 8 

(1985) (county had a non-delegable duty to provide mental health 

evaluation and treatment to an involuntarily detained mental-hold patient 

pursuant to A.R.S. § 36-530); Cooke v. Berlin, 153 Ariz. 220, 223 (App. 1987) 

(noting in dicta that the state apparently “undertook” a non-delegable duty 

to provide adequate mental health care, citing DeMontiney, supra), 

disapproved of on other grounds Dunn v. Carruth, 162 Ariz. 478, 481 (1989) ; see 

also Wiggs v. City of Phoenix, 198 Ariz. 367, 369–70 ¶ 8 (2000) (recognizing 

that a municipality has a non-delegable duty to maintain its roadways, 

relying on the Restatement (Second) of Torts § 418). 

¶50 Further, Amick provides no contract between BDMC and Dr. 

Iskandar establishing a non-delegable duty to provide neurosurgical care. 

See, e.g., Cohen v. Maricopa County, 228 Ariz. 53, 57 ¶ 20 (App. 2011). And 

none of the state or federal statutes and regulations Amick cites imposed a 
AMICK v. BANNER HEALTH 

Decision of the Court 

16 

non-delegable duty on BDMC to provide neurosurgical care to her. 

Amick’s non-delegable duty theory fails as a matter of law. 

¶51 We reverse the grant of summary judgment to Amick on the 

issue of vicarious liability and remand for a jury to resolve the genuine 

issues of material fact. 

CONCLUSION 

¶52 We reverse the superior court’s rulings limiting the scope of 

Dr. Suber’s testimony and precluding all evidence of Amick’s second 

surgery. We also reverse the court’s grant of partial summary judgment to 

Amick on BDMC’s vicarious liability. We remand for a new trial consistent 

with this decision. 

¶53 Amick requests an award of attorneys’ fees under A.R.S. § 12-

349 stemming from BDMC’s jurisdictional argument. In the exercise of our 

discretion, we deny Amick’s request. We award Amick her costs on appeal 

upon compliance with Arizona Rule of Civil Appellate Procedure 21.