Arizona Supreme Court Reverses Summary Judgment for Corizon Health in State Prisoner’s Death from Untreated Diabetes
by Matt Clarke
On October 11, 2023, the Supreme Court of Arizona reversed a grant of partial summary judgment to Corizon Health, the former private medical contractor for the state Department of Corrections, Rehabilitation and Reentry (DCRR), in a suit filed over a state prisoner’s death from allegedly untreated diabetes.
In its ruling, the Court agreed that Plaintiffs’ medical experts did not satisfy requirements for those testifying against a licensed health professional; under state law, ARS § 12-2604, such testimony can be offered only by experts whose credentials and experience align with those of the provider being sued for malpractice. However, the Court said that “an institution cannot be a licensed health professional because an institution is not a natural person,” so those heightened requirements did not apply to Plaintiffs’ experts when testifying against Corizon Health.
Importantly, the Court also beat back a craven attempt by Corizon Health to say on the one hand that it was forced to let underqualified nurses provide care in the absence of more qualified doctors and then on the other hand argue that Plaintiffs’ expert was underqualified to critique the higher level of care that they tried to provide.
The case was filed on behalf of the estate of David Windhurst. Incarcerated at Arizona State Prison in Florence in December 2015, he was paraplegic and suffered from various chronic illnesses, including diabetes, so he was housed in the prison infirmary. He was also stable until Corizon Health took over providing his healthcare.
In February 2016, he went into diabetic septic shock and was hospitalized over a month. Then he was sent to a prison in Tucson where he was once again housed in an infirmary under Corizon Health. In November 2016, he went into diabetic septic shock again and was taken to a hospital, where he died on December 25, 2016.
Windhurst’s widow filed a medical malpractice lawsuit against Corizon Health, also alleging vicarious liability on the part of DCRR, its director and the state. To support her claims she relied on reports from three experts: Dr. Zachary Rosner, M.D., the chief of medical services for the New York City jail system; Nurse Practitioner (NP) Tara Hood, who had worked in prisons for over a decade; and Registered Nurse (RN) Denise Panosky, a professor who had taught about nursing in jails and prisons for 14 years.
Corizon Health filed a motion for summary judgment alleging there was no evidence that it violated a standard of care because the experts’ opinions failed to link specific violations to specific providers. Further it alleged that a nurse was not qualified to give testimony on cause of death. The state Superior Court for Pima County granted partial summary judgment, dismissing the medical negligence claim, agreeing that the medical expert testimony failed to link everything up. In a motion for reconsideration, Plaintiff pointed to evidence that Corizon Health failed to properly treat Windhurst’s wounds or care for his catheter, also failing to follow treatment recommendations from the specialist who diagnosed his sepsis. The motion was denied and the case appealed.
The Court of Appeals found that all three witnesses gave sufficient testimony about the standards of care for Corizon Health and its personnel and sufficient testimony about causation. It also held that Panosky met required expert qualifications and could testify regarding cause of death. The Arizona Supreme Court then granted review because the case presented recurring issues of statewide concern. Representing the widow before the Court were Tucson attorneys Nathan S. Rothschild and Bernardo M. Velassco of Mesch Clark Rothschild, along with Michael Crawford of Crawford Law.
In its ruling, the Court agreed with them that a healthcare institution has a standard of care independent from the medical practitioners it employs, pointing to Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597 (1984). “Because § 12-2604(A) is not applicable to a claim for institutional negligence,” the Court said, “an expert on this issue need only satisfy Rule 702, which requires that the witness have ‘specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue.’” So when the trial court went looking to align credentials of Plaintiffs’ experts with those of the Corizon Health staffers who provided Windhurst’s care, it was off-course, the Court said.
Moreover, what Corizon Health argued was that Hood and Panosky could not testify that Corizon Health NPs or RNs caused the death because they weren’t doctors, and Rosner was credentialed only to testify that death was caused by a company doctor, but there wasn’t one. That left a jury impermissibly to infer causation, Corizon Health said, pointing to Sampson v. Surgery Center of Peoria, LLC, 251 Ariz. 308 (2021). But the Court wasn’t buying that.
Instead it quoted Dr. Rosner, who broke down the inadequacies at the heart of Corizon Health’s system. When (a) there is no physician on site and (b) none available to come in on call nor even (c) provide remote advice to lesser qualified onsite providers, then the “system cannot be said to have provided or ‘arrange[d]’ for the provision of physician services 24 hours a day,” he said, under standards of care set by the federal Centers for Medicine and Medicaid Services. “Contrary to Corizon’s claims,” the Court said, “Windhurst presented sufficient expert causation evidence to satisfy Sampson.” It thus vacated the court of appeals’ ruling and remanded the case. See: Windhurst v. Ariz. Dep’t of Corr., 536 P.3d 764 (Ariz. 2023).
Centurion Health took over DRCC healthcare in July 2019. As PLN reported, Corizon Health is attempting to dodge settlements in dozens of prisoner cases by shuffling the liabilities into a separate firm and declaring it bankrupt. [See: PLN, Jan. 2023, p.29.]
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Related legal case
Windhurst v. Ariz. Dep’t of Corr.
| Year | 2023 |
|---|---|
| Cite | 536 P.3d 764 (Ariz. 2023) |
| Level | Supreme Court |