We are late on this one. When we initially reviewed this, our frustrations caused us to set it aside for several weeks.  The Arizona Supreme Court holds an institutional negligence claim against a prison medical contractor does not have to meet A.R.S. § 12-2604(A) expert standard of care requirements for a medical malpractice case.  This statute references individuals including a “health professional,” “specialist” and “general practitioner.” Institutional negligence does not fit this expert requirement (only an expert within the same specialty is qualified to testify) although the medical contractor (Corizon) acted through individual employees. When there is a “class of providers” and “when it is unclear which provider breached the standard of care, an expert on institutional standards of care may address an alleged breach by establishing that a class of providers failed to exercise appropriate care.” There is enough expert testimony here on causation, and the court points to failures by both nurses and a physician. In addition to potential vicarious liability, on institutional negligence, there is a CMS standard for a prison infirmary, and standards for charting and record keeping. The opinion ends with stating a nurse may be qualified to give causation testimony under Ariz.R.Evid. 702. But, the trial court will have to look at this first.

Some of our frustrations: Why refer to the decedent by his first name and explain this with quotes inside a parenthetical? Easier to refer to decedent by his last name and refer to plaintiffs as plaintiffs. We will not be confused, and we advocate getting away from first names. Second, take a red pen and cross out all the unnecessary surplus words and prepositional phrases. Third, do we need two dictionary definitions for a general practitioner?  Fourth, is anyone proofreading? CMS is an acronym for the Center for Medicare and Medicaid Services not “Medicine and Medicaid Services.” Finally, this opinion is a maze with sentence interruptions, citations to other parts of itself, and surplus references to other cases; Thompson, for example.  Justice Beene uses phrases and headings to give direction but doing this does not make it any better. Take all of this out, and what is left may be a more coherent opinion.

link to opinion