Chavez v. Avalon Care Center Tucson, L.L.C. (2009 WL 1124200 (Ariz.App. Div. 2O))


Articles: Arizona

Chavez v. Avalon CareCenter Tucson, L.L.C. (2009 WL 1124200 (Ariz.App. Div. 2O))

Chavez v. Avalon CareCenter Tucson, L.L.C. (2009 WL 1124200 (Ariz.App. Div. 2O))
Plaintiff (Appellee) – Pamela Chavez, personal representative of Adolfo Chavez
Defendant (Appellant) – Avalon Care Center Tucson, Avalon Heath Care of Arizona, Avalon Health Care Management of Arizona, Heritage Management II, Inc., and Avalon Health Care Inc. (Collectively, Avalon)
Court of Appeals of Arizona (2009)
Appellant Pamela Chavez filed a malpractice suit on behalf of the estate of Adolfo Chavez who died while under the care of the Appellee. The trial court granted Avalon summary judgment finding that Chavez had not provided a qualified standard- of- care expert pursuant to A.R.S. §12-2604. Appellant Chavez appealed the trial court’s decision.
When Adolfo Chavez was admitted to Avalon he was fifty- seven years old and suffered from Alzheimer’s Disease and dementia. He was entirely dependent on others for bathing, oral hygiene, grooming, dressing, eating and mobility. During his stay there, Adolfo developed several “pressure sores” and lost a significant amount of weight. In February 2004, Adolfo was taken to a hospital for the surgical replacement of his feeding tube. The doctors failed to correctly place the tube in his stomach.When he returned to the facility, a nurse fed him, but because the tube was misplaced, the food went into his peritoneal cavity instead of his stomach. Adolfo was hospitalized and died about a month later, in March of 2004 of pneumonia. In May 2005 Chavez filed an action alleging negligence per se, abuse and neglect under A.R.S. § 46-455, and wrongful death. Chavez listed Cheryl Ciechomski, R.N. and Leonard Williams, M.D. as expert witnesses. The trial court allowed both to remain listed as witnesses but specified that Ciechomski could testify “as to the standard of care” and Dr. Williams could testify as to “causation.”
A few weeks later, Avalon moved for summary judgment, asserting that Ciechomski was “not qualified to render standard of care opinions,” citing §12-2604. The court found that “based on the fact that she did not devote a majority of her professional time to the clinical practice of nursing… during the year immediately preceding the occurrence giving rise to the lawsuit,” she was not qualified.
  1. Since § 12-2604(A)(2) was not in affect when the original action was filed does it still apply?
  2. Does § 12-2604(A)(2) apply if the original action is based on the Adult Protective Services Act (APSA), A.R.S. §§ 46-451 through 46-459, not a liability theory of medical malpractice?
  1. No.
  2. No.
The Appeals court ruled that § 12-2604 cannot apply retroactively. They further went on to find that they could not find the expert witnesses unqualified, relying on the Arizona Rules of Evidence:Rule 702:

“An expert witness in a medical malpractice case does not need to be in the same medical specialty as the defendant, but the expert’s proffered testimony must be based on his or her education, experience, observation or association with that specialty,”

They went on to note that an expert’s lack of first- hand experience goes to the weight of her testimony rather than its admissibility. Trial courts are given broad discretion in determining an expert’s competency.

For more information on Arizona nursing homes look here.

Justia Lawyer Rating for Jonathan Rosenfeld

Client Reviews

Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial. Lisa
After I read Jonathan’s Nursing Home Blog, I decided to hire him to look into my wife’s treatment at a local nursing home. Jonathan did a great job explaining the process and the laws that apply to nursing homes. I immediately felt at ease and was glad to have him on my side. Though the lawsuit process was at times frustrating, Jonathan reassured me, particularly at my deposition. I really felt like Jonathan cared about my wife’s best interests, and I think that came across to the lawyers for the nursing home. Eric