St. George v. Plimpton – 11/29/2016

December 6, 2016

Arizona Court of Appeals Division One holds that expert testimony is required when alleging negligence against a certified nurse midwife and that the statutes regulating midwives who are not certified nurse midwives do not apply or establish the standard of care to support per se negligence.

Parents sued their certified nurse-midwife and a supervising doctor for negligence during the delivery of their baby.  They certified that expert testimony was required but disclosed only a doctor as their expert.  The expert was unable to identify how the supervising doctor’s conduct fell below the standard of care but later alleged that the doctor negligently supervised the certified nurse-midwife.  For the certified nurse-midwife, the parents argued that the statutes and regulations governing midwives established the standard of care or that their doctor expert was sufficient. 

At the oral argument on summary judgment, the superior court denied the parents’ request for leave to obtain a certified nurse-midwife expert.  The court granted summary judgment in favor of the certified nurse-midwife and the doctor.  The Court of Appeals affirmed. 

The court correctly granted summary judgment to the doctor on medical malpractice because the expert failed to identify a standard of care violation.  The plaintiffs did not plead negligent supervision and their expert did not identify the standard of care that would have applied to supervision of a certified nurse-midwife.

The court correctly granted summary judgment to the certified nurse-midwife because expert testimony was required.  A person can be negligent per se if they violate a standard of care established by statute or adopted by the court from a statute.  However, certified nurse-midwives are licensed by the Board of Nursing and are distinct from midwives licensed through the Department of Health Services.  Certified nurse-midwives are not subject to the statutes or regulations for midwifery cited by the parents.  Accordingly, expert testimony was required but the expert produced was not qualified because he did not practice as a certified nurse-midwife or teach in that field.  Finally, the court did not abuse its discretion in denying leave to identify a witness because the oral request failed to comply with Rule 56(f) and came nearly two years after the courts clarified the law requiring experts.

Presiding Judge Gould authored the opinion; Judges Swann and Orozco concurred.