St. George v. Plimpton (CA1 11/29/16)

Affirming summary judgment in a malpractice case for not having proper expert evidence. This is the published version of a memorandum that came down earlier this month. The court granted a request for publication; not sure why this is publishable except perhaps for the part about midwife regulations.

Plaintiffs Wife was allegedly injured during the birth of her child. Plaintiffs sued their OB and the nurse-midwife who assisted him. Based on the discovery testimony of Plaintiffs’ expert the trial court granted Defendants summary judgment. Plaintiffs appeal.

As to the doctor, the expert said at deposition that he didn’t fall below the standard then “corrected” the depo to say that he did by not having the nurse “working under . . .  a set of protocols to appropriately monitor patients.” (The Superior Court refused to strike that and apparently that ruling was not appealed.) The court says that the correction “does not specify how [Defendant] allegedly breached the standard of care.” Plaintiffs argued that the expert had said enough at depo to establish an inadequate-supervision claim. The court says that they didn’t allege this separately, that it was part of the malpractice claim, that thus there had to be expert evidence of a breach of standard, and that even the correction letter “did not state what standard of care applied to [Defendant].” As to whether and under what circumstances there can be a negligent-supervision claim against a doctor for supervising a nurse that isn’t subject to the med-mal statutes, the court doesn’t say.

As to the nurse, Plaintiffs argued that she was negligent per se for violating some unspecified Arizona midwife regulations. But the nurse was a registered RN subject to the nursing statutes, not licensed under or subject to the midwife statutes. Plaintiffs argue that the midwife statutes apply to “a person who delivers a baby or provides health care related to . . . labor” and should therefore cover the nurse. The court says that this “would lead to absurd results” such as making midwife regs binding on the OB. Plaintiff’s OB expert criticized the nurse but his opinion was not sufficient under the statute since he was not a nurse.

Much of the opinion is spent describing the factual reasons why the trial court did not abuse its discretion by refusing to give Plaintiffs extra time to find a nurse/midwife expert. Basically, Plaintiffs argued that the statute wasn’t clear on whether they needed a nurse expert and the court points out that the cases clarifying that had come down months before the Plaintiffs’ deadline.

(Opinion: St. George v. Plimpton)