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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

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IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS
D IVISION O NE

A NTHONY ZAPPIA , Plaintiff/Appellant
,

v.

A MANDEEP S. SODHI, et al., Defendant s /Appellee s

.
No. 1 CA- CV 18 -0743

A ppeal from the Superior Court in Maricopa County No. CV2016-053025 The Honorable Bruce R. Cohen
, Judge

AFFIRMED

COUNSEL
Anthony Zappia, Sun City Plaintiff/Appellant

J ennings, Strouss & Salmon, P.L.C., Phoenix By Jay A. Fradkin, R. Ryan Womack C ounsel for Defendant s/Appellees FILED 3-3-2020ZAPPIA v . SODHI , et al. Decision of the Court

2 MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.

P E R K I N S , Judge:

¶1 Plaintiff Anthony Zappia appeals from a grant of summary judgment in favor of defendan t Banner Boswell Rehabilitation Center

. For the reasons stated below, we affirm

.
FACTUAL AND PROCEEDURAL HISTORY

¶2 We v iew the facts in the light most favorable to Zappia

. Stramka v. Salt River Recreation, Inc. , 179 Ariz. 283, 284 (App. 1994). I n September 2014, Zappia had back surgery at Banner Boswell Medical Center . H e was transferred to Banner Boswell Rehabilitation Center (“ Boswell ”) for rehabilitative services . A week later , and t welve days after surgery , Zappia complain ed of “’ severe pain ’ in [ the left ] lower chest .” Dr. Amandeep Sodhi ordered a chest x -ray and believed that Zappia’s vital signs were not indicative of a pulmonary embolism. Sodhi’s notes suggest that while he then ordered a CT angiogram, the test was still pending at th e time.

¶3 The next day, after continued pain
, Zappia’s niece Joanne Marozzi , a registered nurs e, grew increasingly concerned

. As a result of her

concern, 9-1-1 was called a nd e mergency services transported Zappia to the hospital . A CT angiogram at the hospital revealed that Zappia was, in fact, experiencing a pulmonary embolism. Doctors at the hospital treated Zappia for the embolism and he survived

. Zappia now takes blood thinners and continues to experience pain that Marozzi believes is not related to the back surgery

. ¶4 Zappia sued Sodhi, Boswell, and others for medical malpractice, alleging that the defendants’ f ailure to conduct a CT angiogram earlier either caused or worsened the embolism. Zappia also alleged that the defendants’ conduct constituted abuse of a vulnerable adult

. Zappia proffered Marozzi as his expert on the proper standard of

care for the nurses at Boswell . Marozzi , who has been a nurse for more than three decades, work ed as a n intensive care unit (“ ICU ”) floor nurse atZAPPIA v . SODHI , et al. Decision of the Court

3 Banner Estrella Medical Center one day a week in the year before the embolism

. Marozzi spent the remainder of the week working as a case manager for CIGNA Healthcare and babysitting her grandchildren.

¶5 Boswell filed a motion for summary judgment , arguing that Mar ozzi was not a qualified expert under A.R.S. § 12 -2604. Although t he trial court found that Marozzi’s work as an ICU floor nurse satisfied A.R.S. § 12 -2604 (A)(1) ( the “same specialty” requirement), it found that Marozzi did not devote a majority of her professional time to her work as an ICU

nurse and therefore did not meet the requirements of subsection (A)(2) (the

“ majority of professional time in the prior year” requirement ). The court further denied Zappia’s attempt to invoke Arizona Rule of Civil Procedure 56(d) to seek additional time to obtain a substitute expert based on lack of compliance with the rule

. Because Zappia did not have a proposed standard of care expert apart from Marozzi, the trial court granted Bosw ell ’s motion for summary judgment on Zappia’s claim s against Boswell

. ¶6 Zappia timely appealed.

DISCUSSION

¶7 We review a trial court’s grant of summary judgment de novo

. Palmer v. Palmer , 217 Ariz. 67, 69, ¶ 7 (App. 2007). Summary judgment is proper when no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a).

¶8 A medical malpractice plaintiff must prove ( 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 that ( 2) “[s]uch failure was the proximate cau se of the injury.” A.R.S. § 12-563.

¶9 Unless the alleged malpractice is a matter of common knowledge , Arizona requires that the standard of care be established by expert medical testimony. Rasor v. Nw

. Hosp

. , LLC , 243 Ariz. 160, 163, ¶ 12 (2017). This also applies when a medical malpractice claim is brought as an abuse of a vulnerable adult claim. Equihua v. Carondelet Health Network , 235 Ariz. 504, 509, ¶ ¶ 19–20 (App. 2014) (citing Cornerstone Hosp. of S e. Ariz., L.L.C. v. Marner ex rel. Cty. of Pima
, 231 Ariz. 67, 71

– 72, ¶¶ 7, 14 (App. 2012))

. The failure of a plaintiff to provide such expert medical testimony is ordinarily an appropriate ground for summary judgment in favor of a defendant

. Rasor , 243 Ariz. at 166, ¶ 31 (reversing on other grounds)

.ZAPPIA v . SODHI , et al. Decision of the Court

4 1. Th e Trial Court Correctly Denied Zappia ’s Expert Under A.R.S. § 12-2604(A)(2).

¶10 Zappia first challenge s the trial court’s determination that Marozzi was not qualified to testify as an expert under A.R.S. § 12

- 2604(A)(2). Subsection (A)(2) requires that the pr oposed expert , “[d]uring the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person’s professional time to either or both of . . . the active clinical practice of the same health profession as the defendant ”

or teaching students in a relevant accredited program

. ¶11 We review a trial court’s determination of expert qualifications for abuse of discretion. Baker v. Univ. Physicians Healthcare
, 231 Ariz. 379, 387, ¶ 30 (2013). The evidence presented to t he trial court was that, in the year before the incident challenged here, Marozzi worked as a nurse just one day a week. W orking in the qualifying profession for only one day per work week does not constitute a majority of Marozzi’s professional time. The trial court did not abuse its discretion in rejecting her

as a standard of care expert.

2. The Trial Court Correctly Denied Zappia ’s Attempt t o Invoke Rule 56(d).

¶12 Second, Zappia contends that the trial court should have granted Rule 56(d) relief , an issue w e review for an abuse of discretion. St. George v. Plimpton , 241 Ariz. 163, 165, ¶ 11 (App. 2016)

. Rule 56(d) permits a party to request relief and an expedited hearing when a party opposing summary judgment cannot present evidence to justify its op position. The rule states that such a request “ must be accompanied ” by a supporting affidavit containing information specified in the rule

. Ariz. R. Civ. P. 56(d)(1) (emphasis added)

. Also , the filer must attach a Rule 7.1(h) good faith consultation certificate to the motion. Id. Failure to comply with the Rule 56 provisions is grounds for denial of such relief

. See St. George , 241 Ariz. at 168, ¶¶ 29–32 (App. 2016).

¶13 Zappia ’s purported Rule 56(d) request consist ed of a single
sentence on page 8 of h is response to the motion for summary judgment

. Merely c iting to the rule in a response to a motion for summary judgment
, as the trial court correctly observed, “does not come close to complying with the rule.” Counsel did not identify any of the information listed in Rule 56(d)(1)(A) and did not file a good faith certificate under Rule 7.1(h). Therefore , the trial court did not abuse its discretion in denying Rule 56(d) relief.ZAPPIA v . SODHI , et al. Decision of the Court

5 CONCLUSION

¶14 We affirm

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