McDaniel v. Payson Healthcare Mgmt., Inc. (10/20/2020)

January 4, 2021

Arizona Court of Appeals Division Two requires new trial in medical malpractice case, due to trial court errors involving experts.

A rider fell from a dirt bike in 2017, suffering lacerations to his knee.  He received treatment from a series of physicians at various hospitals and clinics (the “Medical Parties”).  Lab tests at the first hospital where he received treatment showing high levels of a certain protein were improperly recorded and misplaced.  If the correct levels had been recorded, there was testimony that it may have affected a test indicating the presence of necrotizing fasciitis—the Laboratory Results Indicative of Necrotizing Fasciitis (LRINEC).  Eventually, the rider was diagnosed with necrotizing fasciitis and other complications and alleged that delay in diagnosis led to all of the skin on his right leg being removed.

At trial, the court allowed, over objection, several of the treating physicians to testify in support of the Medical Parties consistent with other expert testimony that the protein levels, even if properly recorded, would not indicate necrotizing fasciitis.  The trial court also allowed, over objection, expert testimony critical of the LRINEC, when the final disclosures of the Medical Parties for these same witnesses indicated acceptance or support of the LRINEC.  The plaintiff, the conservator of the rider’s estate, moved for a new trial.  The trial court denied the motion.

The Arizona Court of Appeals reversed and remanded for a new trial, holding that the trial court erred (1) in allowing the treating physicians’ testimony regarding the protein levels because it was improperly cumulative of other expert testimony under Rule 26(b)(4)(F) and (2) the testimony critical of the LRINEC should not have been allowed because it was not properly disclosed under Rule 26.1.

The Court of Appeals also dismissed for lack of jurisdiction a cross-appeal by certain of the Medical Parties, requesting that they be allowed to name as a non-party at fault a physician who was earlier dismissed from the case. The Court of Appeals held that the non-party physician was an indispensable party to the cross-appeal because any relief on appeal would require reversing the non-party’s summary judgment dismissal from the case.  Thus, the failure to include him in the appeal was jurisdictionally fatal.

Judge Vásquez authored the opinion in which Judge Staring joined.  Judge Brearcliffe joined as to the expert issues but dissented on the cross-appeal regarding the non-party physician.