Hager v. United States

• Court: District Court, D. Arizona
• Decided: February 22, 2024
• Docket: 2:20-cv-02275
• Status: Unknown

Opinion

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sarah Hager, et al., No. CV-20-02275-PHX-DWL 10 Plaintiffs, ORDER 11 v. 12 United States of America, 13 Defendant. 14 15 In June 2019, Edward Michael Hager (“Hager”) sought mental health counseling at 16 a clinic operated by the Department of Veterans Affairs (“VA”) in Gilbert, Arizona. Later

17 that day or the following day,1 Hager committed suicide. Hager’s spouse, Sarah Hager, 18 who is acting on behalf of herself and the statutory beneficiaries of Hager (collectively,

19 “Plaintiffs”), brought suit against the United States (“Defendant”) under the Federal Tort

20 Claims Act (“FTCA”), alleging that the nurse who treated Hager at the VA clinic 21 committed malpractice. 22 Now pending before the Court is Defendant’s renewed motion for summary

23 judgment. (Doc. 82.) For the following reasons, the motion is granted.

24 BACKGROUND

25 The following facts are derived from the parties’ submissions and the record

26 evidence and are uncontroverted unless otherwise noted. Additional facts bearing on the 27 parties’ specific summary judgment arguments are addressed in the Discussion portion of 28 1 “No one knows when Mr. Hager shot himself.” (Doc. 82 at 4.) Case 2:20-cv-02275-DWL Document 93 Filed 02/22/24 Page 2 of 32

1 this order. 2 I. Relevant Factual Background 3 Hager served in the United States Army from 2002 to 2006. (Doc. 57-1 at 18.) He 4 was deployed to Iraq for 15 months in 2003 and 2004, during which time he “[s]aw friends 5 die, was shot at and sustained several blast injuries and brain concussion [sic].” (Doc. 63 6 at 13.) 7 Hager’s medical records reveal a series of mental health problems following his 8 return to civilian life, including diagnoses of post-traumatic stress disorder (“PTSD”) and 9 a traumatic brain injury (“TBI”). (Doc. 57-1 at 5 ¶ 12.) In 2008, he was admitted for 10 inpatient psychiatric care after his wife reported that he had written a suicide note. (Id. at 11 13, 18.)2 In 2008 or 2009, he began suffering from “paranoia.” (Id.)3 12 On October 23, 2008, Hager underwent a neuropsychological screen. (Doc. 63 at 13 14.) The referral for the screen stated that Hager “reported progressively worsening 14 problems with forgetfulness, attention/concentration, word finding and emotional control 15 following his 2004 return from Iraq. . . . He also described significant depressive and 16 anxious symptomatology that is interfering with his ability to sleep and function socially.” 17 (Id.) The assessment report from the screen, entered on October 27, 2008, described 18 Hager’s “verbal and visual memory abilities” as “compromised.” (Id. at 15 [“Retention of 19 both verbal and visual information following a brief delay was severely impaired . . . .”].) 20 The report also stated that Hager reported a variety of psychiatric symptoms (e.g., 21 hypervigilance, frequent nightmares, and significant irritability) but that, “[i]nterestingly, 22 when later asked to fill out self report measures of mood symptoms, his endorsement 23 indicated only mild symptoms of depression and anxiety . . . . Inconsistency in . . . reports 24 likely indicates that the inventories represent an underestimation of his current symptoms.” 25 2 Hager described this incident to a medical provider in 2013 but stated he did not recall writing the note. (Id. at 13.) 26 3 The medical notes from the 2013 visit provide: “[Hager] states he’s had paranoia 27 since 08-09 when he was deployed.” (Id. at 13.) This chronology appears to be inaccurate, as Hager was deployed during 2003 and 2004 and was discharged in 2006. It is therefore 28 possible the paranoia began before 2008. This distinction is not material to the analysis here.

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1 (Id. at 16.) The report concluded that Hager “reported a considerable amount of psychiatric 2 problems that are consistent with his history of PTSD and [a]lcohol abuse.” (Id.) 3 On November 10, 2008, Hager saw a psychiatrist for symptoms related to his PTSD 4 and TBI. (Id. at 12-13.) At that time, Hager was experiencing “nightmares of combat,” 5 trouble sleeping, anxiety about crowds, and “flashbacks when . . . driving.” (Id. at 13.) 6 The psychiatrist reported that Hager “has symptoms of post concussion syndrome, post 7 concussive headache and PTSD,” had “mild irritability,” and was “mildly anxious.” (Id.) 8 The psychiatrist also reported Hager’s substance abuse and family history—his “[f]ather 9 was [an] alcoholic, is in prison for manslaughter” and Hager “has infrequent contact with 10 him.” (Id.) During the appointment, Hager did not express suicidal ideation or a plan or 11 an intent to harm others. (Id.) 12 On June 17, 2013, Hager presented at a VA clinic in Phoenix and reported suffering 13 from “increasing paranoia” and sleep deprivation. (Doc. 57-1 at 13.) The paranoia 14 included suspicions that his wife was cheating on him, “thoughts that his boss [was] not 15 calling him,” and “paranoia that the authorities are watching him because of a DVD of 16 possible pornography that didn’t belong to him and he thinks was planted on him.” (Id.) 17 Hager also thought “he was poisoned as he had blood in his urine and stool and chest pain.” 18 (Id. at 18.)4 He reported that he felt “hopeless about the present/future.” (Id. at 16-17. See 19 also id. at 22 [stating that Hager felt “[l]ittle interest or pleasure in doing things” and 20 “down, depressed, or hopeless” for several days]; id. [stating that Hager’s screening 21 assessment was “suggestive of moderately severe depression”].) Further, the provider 22 noted that Hager’s gun ownership “elevate[d] [his] suicide risk.” (Id. at 18.) However, 23 Hager denied past or present suicidal ideations or attempts. (Id. at 16-17.) The provider 24 estimated Hager’s risk level for suicide was “[l]ow: [d]esire or [c]apability alone.” (Id. at 25 4 26 The day before, on June 16, 2013, Hager presented at an emergency room with chest pain. (Id. at 18; Doc. 63 at 11.) The notes from that visit indicate a friend reported that 27 Hager’s wife was due to deliver their first baby on June 15, 2013, and that Hager believed the baby’s sex had been changed inside the womb. (Doc. 63 at 11.) Hager “declined in- 28 patient admission, [and] was advised to follow up at the mental health clinic and did so the following day.” (Doc. 57-1 at 5 ¶ 10.)

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1 19 [“There is a willingness to engage in treatment. Has some social support [f]rom 2 family/friends. Has some suicidal ideation, but is limited in [i]ntensity and duration.”].) 3 The provider determined that Hager was “[a]dequate for outpatient treatment.” (Id. at 15.) 4 He was scheduled to see a psychiatrist within the following two weeks. (Id. at 5 ¶ 12.) 5 However, he did not keep the appointment. (Id.) 6 Six years later, on June 24, 2019, Hager presented as a walk-in patient at the VA’s 7 Willow Clinic in Gilbert, Arizona and requested counseling services. (Id. at 4 ¶ 4, 6 ¶ 14.)5 8 A medical support assistant, Christian Underwood (“MSA Underwood”), took Hager’s 9 vital signs and administered the Patient Health Questionnaire (“PHQ-2+I9”), “which is the 10 standard depression and primary suicide risk screen,” as well as “the standard PTSD and 11 primary suicide risk screen” (“PC-PTSD-5+I9”). (Id. at 4 ¶ 7, 6 ¶¶ 16-17.)6 “Depending 12 on the Veteran’s responses [to the risk screens], the computer determined whether the 13 Veteran was positive for depression and/or PTSD.” (Id. at 4 ¶ 7.) 14 On the PC-PTSD-5+I9, Hager scored a 0 on the suicide screen, which indicates a 15 “negative screen for risk of suicide over the last 2 weeks,” and a 2 on the PTSD screen, 16 “which indicates a negative screen for PTSD in the past month.” (Id. at 31, capitalization 17 omitted.) On the PHQ-2+I9, Hager scored a 2 on the depression screen, “which indicates 18 a negative screen on the depression scale over the past 2 weeks,” and a 0 on the suicide 19 screen, “which indicates a negative screen for risk of suicide over the past 2 weeks.” (Id. 20 at 32, capitalization omitted.)7 21 Next, Hager was seen by the triage nurse. (Id. at 4 ¶¶ 4-5.) At that time, William 22 23 5 “Between 2013 and 2019, the only treatment [Hager] sought at the VA was in March 2016, when he presented to the emergency department complaining of a burning sensation 24 in his chest and chest pain lasting four months. He was given Pepcid, which resolved the issue, and was released.” (Id. at 5-6 ¶ 13.) 25 6 MSA Underwood did not receive “training in counseling or psychology or psychiatry.” (Doc. 82-1 at 55.) 26 7 The progress notes from the PHQ-2+I9 and PC-PTSD-5+I9 tests, as well as the 27 Columbia Suicide Severity Rating Scale (“C-SSRS”) test discussed infra, provided that “[i]nformation contained in this note is based on a self-report assessment and is not 28 sufficient to use alone for diagnostic purposes. Assessment results should be verified for accuracy and used in conjunction with other diagnostic activities.” (Id. at 30, 32.)

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1 Weishaar (“Nurse Weishaar”) worked as the regular triage nurse at the Willow Clinic. 2 (Doc. 63 at 25.) When Nurse Weishaar wasn’t working, “[t]he other nurses in the Willow 3 Clinic rotated to cover [the] triage position.” (Doc. 57-1 at 4 ¶ 5.) On June 24, 2019, Vicky 4 Markey (“Nurse Markey”) was covering triage. (Id.)8 At all relevant times, Nurse Markey 5 worked as a mental health nurse at the Willow Clinic. (Id. at 3 ¶ 3.) 6 During the June 24, 2019 consultation with Nurse Markey, Hager requested 7 counseling, explaining: “I am feeling anxious and need some counseling. My wife and 8 kids are gone for two weeks and I don’t know what to do with myself.” (Id. at 26.)9 Nurse 9 Markey stated that “Hager seemed sad during the appointment, but he was forthright and 10 matter of fact when answering my questions.” (Id. at 7 ¶ 27.) She reported that “Hager 11 was not delirious, delusional, psychotic, insane, or otherwise of unsound mind.” (Id. at 7 12 ¶ 28.) Hager explained to Nurse Markey that he had “hardly slept in days” and “hate[d] 13 being alone and in [his] own head.” (Id. at 26.) He also mentioned that he had recently 14 stopped running a website for veterans because it was getting too “dark” and “bringing up 15 past memories” and that, as a result, he had “too much time on his hands and [was] thinking 16 too much.” (Id.) Hager reported that he was not taking any prescribed medications for his 17 mental health and that he did not want to take any medications, but rather he “just want[ed] 18 to start talking to someone.” (Id.) Hager also reported that he “[u]ses marijuana to help 19 with sleep and nightmares and finds it effective”; “drinks a couple times a year and drinks 20 till he passes out”; and “uses tobacco every day . . . within 30 minutes of waking up.” (Id. 21 at 26-27.) Nurse Markey expressed concern over Hager’s alcohol use and “[a]dvised 22 [Hager] to abstain from drinking alcohol due to contraindications.” (Id. at 25.) He 23 “decline[d] referral for alcohol use assessment or treatment.” (Id.) He also declined 24 behavior counseling and medications to assist him with quitting smoking. (Id. at 28.) 25 Nurse Markey administered the C-SSRS, which is “a standard suicide screening tool 26 8 During her deposition in this case, when asked whether she had “receive[d] any instruction from the [VA] about patient care during triage,” Nurse Markey responded that 27 she “spent some time with a triage nurse at Jade Opal and then again with Bill at The Willow Clinic.” (Doc. 63 at 21.) 28 9 Hager reported that his “[w]ife, family and friends are his support system.” (Id.)

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1 widely used in the mental health and primary care settings,” and also completed a suicide 2 risk assessment (“SRA”), “which is a clinical evaluation to determine the nature and degree 3 of suicide risk/probability.” (Id. at 6-7 ¶ 20.) “The C-SSRS and SRA indicated that 4 [Hager] was at low risk for suicide.” (Id. at 7 ¶ 20.) In relevant part, Hager reported that 5 in the past month, “he had never wished that he was dead or that he could go to sleep and 6 not wake up,” did not have “any actual thoughts of killing himself,” had not considered 7 suicide, and he had never prepared or attempted to commit suicide. (Id. at 7 ¶¶ 21-23.) 8 Nurse Markey then asked Hager “whether he had firearms in his home” and, if so, whether 9 “he would consider removing his firearms from his residence.” (Id. at 7 ¶¶ 24-25.) Hager 10 “agreed to take [his firearms] to his father’s house, stating ‘I am not suicidal or anything 11 but it can only be a smart move to get them out of my house.’” (Id. at 7 ¶ 25; id. at 26.) 12 Hager also represented that “he intended to stay with his father while his family was out of 13 town.” (Id. at 7 ¶ 25.) 14 Nurse Markey “scheduled [Hager] for an appointment with . . . a psychiatrist at the 15 Willow Clinic on July 24, 2019.” (Id. at 9 ¶ 40.) She also provided him with information 16 about other VA resources, including the Mesa Vet Center, “a small, non-medical 17 counseling center staffed by counselors [that] offers on[e]-on-one counseling and group 18 sessions.” (Id. at 10 ¶¶ 43, 45-47. See also id. at 10 ¶ 45 [“I also gave [Hager] information 19 about the emergency services available through the VA and instructed him to call 911 or 20 the Veterans Crisis Line if he was having thoughts of suicide or homicide or was otherwise 21 in mental distress.”].) Hager said he would “check [the Mesa Vet Center] out tomorrow.” 22 (Id. at 26.) 23 After the consultation with Nurse Markey, Hager called his stepfather, whom he 24 asked to “stop by after work to pick up his weapons.” (Id. at 40.) Around 5:00 pm, Hager’s 25 stepfather and mother went to Hager’s house. (Id.) During the visit, Hager told his mother, 26 Donna Fett, that the VA had “suggested that a family member take his weapons.” (Id. at 27 41.) His stepfather retrieved the guns, which were “all packed up” in a bag, from the master 28 bedroom. (Id. at 41-43.) After about an hour and a half, his parents left. (Id. at 42.) Fett

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1 did not “believe that [Hager] was suicidal” at the time. (Id. at 43-44.)10 2 The following day, Hager was found dead in his home from a self-inflicted gunshot 3 wound. (Id. at 44-45.) 4 II. Procedural History 5 On November 24, 2020, Plaintiffs initiated this action. (Doc. 1.) 6 On July 1, 2022, Defendant moved to disqualify Plaintiffs’ then-standard of care 7 expert, Boualay Bala (“Nurse Bala”). (Doc. 49.) 8 On July 29, 2022, Defendant moved for summary judgment. (Doc. 57.) 9 On February 14, 2023, the Court granted Defendant’s motion to disqualify Nurse 10 Bala and denied Defendant’s motion for summary judgment without prejudice. (Doc. 72.) 11 As for the expert issue, the Court concluded that Nurse Markey was “acting within her 12 specialty as a psychiatric mental health nurse when she saw Hager” and was a Psychiatric 13 Mental Health Nurse-Board Certified (“PMH-BC”), having been certified by the American 14 Nurses Credentialing Center (“ANCC”). (Id. at 9-15.) Given those conclusions, the Court 15 determined that the requirements of A.R.S. § 12-2604(A)(1) applied—and, thus, Plaintiffs’ 16 expert witness had to be “board certified in [the same] specialty or claimed specialty” as 17 Nurse Markey. (Id. at 12.) Because Nurse Bala was not board certified in psychiatric 18 mental health nursing, the Court disqualified her as Plaintiffs’ standard of care expert. (Id. 19 at 12, 15.) However, the Court granted Plaintiffs’ request to substitute Rebecca Puchkors 20 (“Nurse Puchkors”)—“a registered nurse with a PMH-BC certification from the ANCC”— 21 as their standard of care expert. (Id. at 15-19.) The Court explained that “Plaintiffs 22 proposed their initial expert, Nurse Bala, in good faith. Between May 2021 and October 23 2021, defense counsel failed to respond to repeated requests from Plaintiffs’ counsel for 24 more information concerning Nurse Markey’s credentials. Given that the first notice 25 Plaintiffs received that Nurse Markey was board certified occurred in a deposition less than 26 10 Fett and Hager’s stepfather also visited Hager at his home on Saturday, June 22, 27 2019, and Sunday, June 23, 2019. (Id. at 38-39.) Fett testified that although she “was having concerns [about Hager’s mental health] all weekend,” she did not “have any 28 concerns about [his] mental health on Saturday” and she did not have “any specific concerns about [her] son when [she] saw him on Sunday.” (Id.)

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1 two weeks before the October 22, 2021 deadline for expert disclosures, and that Plaintiffs 2 did not receive Nurse Markey’s resume until two days before that deadline, it is difficult 3 to assign too much fault to Plaintiffs for failing to seek additional time to secure a similarly 4 qualified expert.” (Id. at 17-19, footnote and internal citations omitted.) The Court held 5 that “[t]he timing of Defendant’s motion also weighs in favor of allowing substitution,” 6 given that Defendant filed the motion to disqualify Nurse Bala “long after the deadline for 7 Plaintiffs to identify a new expert with the necessary credentials.” (Id. at 19.) 8 Next, the Court addressed Defendant’s two bases for seeking summary judgment— 9 (1) Plaintiffs failed to establish the standard of care with admissible expert testimony; and 10 (2) Hager’s suicide was, as a matter of law, a superseding and intervening cause relieving 11 Defendant of liability. (Id. at 20-29.) Because the Court had just allowed Plaintiffs to 12 substitute Nurse Puchkors as their standard of care expert, the Court denied Defendant’s 13 first argument without prejudice. (Id. at 20.) As for the second argument, the Court 14 explained that “[u]nder Arizona law, the general rule is that ‘suicide by the injured party is 15 a superseding cause which is neither foreseeable nor a normal incident of the risk created 16 and therefore relieves the original actor from liability for the death resulting from the 17 suicide.’ . . . However, Arizona recognizes two exceptions to this ‘general rule.’” (Id. at 18 21, citation omitted). The Court concluded that “the first exception is not at issue here” 19 because “Plaintiffs do not allege that Hager was suffering from delirium or insanity caused 20 by Defendant.” (Id.) As for the second exception, the Court explained that “[w]hether the 21 VA has a specific duty to protect mental health patients being seen on an outpatient basis 22 from suicide is a question the Arizona Supreme Court has not yet addressed. . . . Given the 23 importance of this issue and the presence of nonfrivolous reasons to believe the law may 24 not be as settled as Defendant portrays it to be, and with recognition that it should be the 25 Arizona courts (not federal courts applying Arizona law) who resolve weighty and 26 potentially unsettled state-law issues, the Court would be inclined to certify the question to 27 the Arizona Supreme Court. . . . The Court also concludes, however, that it would be 28 premature to make a certification request at this time. . . . Defendant may have additional

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1 grounds for seeking summary judgment that are not dependent on the resolution of the 2 legal question the Court would otherwise be inclined to certify.” (Id. at 22-28.) Thus, the 3 Court reopened discovery for the limited purpose of allowing additional discovery 4 concerning Nurse Puchkors and authorized Defendant to file a renewed motion for 5 summary judgment following the completion of that process. (Id. at 29.) 6 On June 30, 2023, Defendant filed the pending renewed motion for summary 7 judgment. (Doc. 82.) The motion later became fully briefed. (Docs. 85, 88.) 8 On February 9, 2024, the Court issued a tentative ruling. (Doc. 90.) 9 On February 21, 2024, the Court heard oral argument. (Doc. 91.) 10 DISCUSSION 11 I. Legal Standard 12 “The court shall grant summary judgment if [a] movant shows that there is no 13 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 14 of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 15 the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 16 in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 17 1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable 18 to the nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 19 Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is 20 improper where divergent ultimate inferences may reasonably be drawn from the 21 undisputed facts.” Fresno Motors, 771 F.3d at 1125 (internal quotation marks omitted). 22 A party moving for summary judgment “bears the initial responsibility of informing 23 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 24 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 25 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 26 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 27 production, the moving party must either produce evidence negating an essential element 28 of the nonmoving party’s claim or defense or show that the nonmoving party does not have

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1 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 2 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 3 [the] moving party carries its burden of production, the nonmoving party must produce 4 evidence to support its claim or defense.” Id. at 1103. 5 “If the nonmoving party fails to produce enough evidence to create a genuine issue 6 of material fact, the moving party wins the motion for summary judgment.” Id. There is 7 no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty 8 Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not 9 significantly probative, summary judgment may be granted.” Id. at 249-50 (internal 10 citations omitted). At the same time, “[t]he evidence of the non-movant is to be believed, 11 and all justifiable inferences are to be drawn in his favor.” Id. at 255. “[I]n ruling on a 12 motion for summary judgment, the judge must view the evidence presented through the 13 prism of the substantive evidentiary burden.” Id. at 254. Thus, “the trial judge’s summary 14 judgment inquiry as to whether a genuine issue exists will be whether the evidence 15 presented is such that a jury applying that evidentiary standard could reasonably find for 16 either the plaintiff or the defendant.” Id. at 255. 17 II. Medical Malpractice 18 “The Federal Tort Claims Act (FTCA) allows a plaintiff to bring certain state-law 19 tort suits against the Federal Government.” Brownback v. King, 141 S. Ct. 740, 745 (2021). 20 See also 28 U.S.C. §§ 1346(b)(1), 2674. FTCA claims are “governed by the substantive 21 law of the place where the act or omission complained of occurred.” Yako v. United States, 22 891 F.2d 738, 745 (9th Cir. 1989). See also 28 U.S.C. § 1346(b)(1). 23 Here, Plaintiffs assert three FTCA claims based on Arizona’s law of medical 24 malpractice: medical negligence, wrongful death, and vicarious liability. (Doc. 1 ¶¶ 1, 50- 25 69.)11 In Arizona, the elements of a medical malpractice action are provided by statute: 26 27 11 A.R.S. § 12-561(2) defines “[m]edical malpractice action” as “an action for injury or death against a licensed health care provider based upon such provider’s alleged 28 negligence, misconduct, [or] errors or omissions . . . in the rendering of health care, medical services, nursing services or other health-related services . . . .”

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1 Both of the following shall be necessary elements of proof that injury 2 resulted from the failure of a health care provider to follow the accepted standard of care: 3 1. The health care provider failed to exercise that degree of care, skill 4 and learning expected of a reasonable, prudent health care provider in 5 the profession or class to which he belongs within the state acting in the same or similar circumstances. 6 2. Such failure was a proximate cause of the injury. 7 8 A.R.S. § 12-563. 9 III. Standard Of Care—Nurse Puchkors 10 A. Nurse Puchkors’s Standard-Of-Care Opinions 11 As part of the reopened discovery proceedings, Nurse Puchkors issued a one-page 12 report. (Doc. 85-1 at 6.) There, Nurse Puchkors opined in relevant part as follows: “Nurse 13 Markey fell below the standard of care. The [C-SSRS] is not meant to be comprehensive. 14 Mr. Hager’s statements, in combination with his medical history, did not match his answers 15 on the [C-SSRS]. Suicide assessment is a risk formulation. Mr. Hager had a number of 16 significant risk factors for suicide including a [TBI] which causes impulsivity; anxiety; 17 hopelessness; sleeplessness; substance abuse; lethal means; and his support system (his 18 family) being out of town. Following triage, Mr. Hager should have had a comprehensive 19 safety plan implemented that included the input of family members, if at all possible; and 20 Mr. Hager should have had a comprehensive assessment by a competent provider that same 21 day, if possible.” (Id.) 22 Following the issuance of her report, Nurse Puchkors was deposed. (Doc. 82-1 at 23 6-44.) At the outset of her deposition, Nurse Puchkors was asked to “describe . . . [her] 24 opinions with respect to the deficiencies in [N]urse Markey’s care.” (Id. at 23.) Nurse 25 Puchkors responded: “[T]here were deficiencies in the assessment; including mental status, 26 suicide risk assessment and formulation, and intervention.” (Id.) Nurse Puchkors then 27 added: “Communication. . . . Communication with other providers. And communication 28 in the documentation of that assessment and interventions.” (Id. at 24.) Later, when asked

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1 whether “the standard of care require[d] that [N]urse Markey have performed and charted 2 a mental status exam on every patient that she saw,” Nurse Puchkors stated that “[i]t should 3 have been the standard of her assessment, yes.” (Id. at 25-26.) Additionally, when asked 4 whether there were “other deficiencies or other breaches of the standard of care” beyond 5 the asserted “deficiencies in [Nurse Markey’s] assessment of mental status, suicide risk 6 assessment, and communication with other providers,” Nurse Puchkors stated: “Well, in 7 review of the records, besides those breaches, the interventions for suicide prevention and 8 discharge were not in place.” (Id. at 27-28.) 9 B. Overview Of The Parties’ Arguments 10 In the renewed summary judgment motion, Defendant construes Nurse Puchkors’s 11 report and deposition testimony as identifying four purported breaches of the standard of 12 care by Nurse Markey: (1) failing to perform, and failing to document that she had 13 performed, a mental status examination; (2) failing to perform, and failing to document 14 that she had performed, an SRA; (3) failing to develop a safety plan and, relatedly, allowing 15 Hager to return to an empty house with firearms; and (4) failing to communicate her 16 concerns to interdisciplinary team members or refer Hager for a same-day assessment by 17 another provider. (Doc. 82 at 6-10.) Defendant then raises an array of arguments as to 18 why those assertions should be deemed insufficient to meet Plaintiffs’ burden of proof 19 under A.R.S. § 12-563. (Id.) 20 Unfortunately, Plaintiffs’ response brief offers only a cursory defense of the 21 sufficiency of Nurse Puchkors’s opinions. First, Plaintiffs assert that “[t]he Plaintiffs’ 22 expert establishes a breach of the standard of care” without providing any supporting 23 explanation. (Doc. 85 at 3.) Then, in a two-paragraph section of the brief falling under the 24 heading “Nurse Puchkors on the standard of care,” Plaintiffs simply summarize certain 25 portions of Nurse Puchkors’s deposition testimony before analogizing Nurse Markey to “a 26 dermatologist [who] would tell a skin cancer patient to go sit in the sun.” (Id. at 4.) The 27 remainder of Plaintiffs’ response brief addresses other issues. (Id. at 5-13.) 28 In reply, Defendant notes that although Plaintiffs “assert” that the standard-of-care

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1 challenge “is easily defeated by the evidence,” Plaintiffs “then fail to cite any evidence.” 2 (Doc. 88 at 1.) Defendant then elaborates upon some of the arguments regarding Nurse 3 Puchkors raised in its motion. (Id. at 1-3.) 4 From the Court’s perspective, this briefing sequence has greatly complicated the 5 task of analyzing the sufficiency of Nurse Puchkors’s standard-of-care opinions. 6 Nevertheless, in the subparts that follow, the Court has endeavored to evaluate the 7 sufficiency of each of those opinions. 8 C. Mental Status Assessment 9 Nurse Puchkors testified that “there were deficiencies in the assessment; including 10 mental status” (Doc. 82-1 at 23) and then elaborated that Nurse Markey’s evaluation of 11 Hager fell below the standard of care because Nurse Puchkors “[did not] see indications of 12 the components of a mental status exam in [Nurse Markey’s] documentation” (id. at 25). 13 When asked whether the standard of care required Nurse Markey to “perform[] and chart[] 14 a mental status exam on every patient that she saw,” Nurse Puchkors responded that “[i]t 15 should have been the standard of her assessment, yes.” (Id. at 25-26. See also id. at 26 [Q: 16 “[D]oes the standard of care require that a mental status exam be performed every time a 17 nurse sees a mental health patient?” A: “It should be.”].) Nurse Puchkors further opined 18 that “[a]s a psychiatric nurse, your mental status exam is a piece of your assessment that is 19 important in doing—you know, in knowing what’s going on with your patient.” (Id. at 20 26.)12 21 As an initial matter, the Court acknowledges that Nurse Puchkors’s use of the 22 phrases “should have” or “should be” to describe Nurse Markey’s responsibility to perform 23 and chart a mental status assessment—rather than explicitly affirming that performing and 24 charting a mental status assessment is required under the standard of care—might imply 25 that such conduct is a mere recommendation or best practice, not a requirement. However, 26 12 27 During the deposition, Nurse Puchkors also testified that a nurse is required to perform and chart a mental health status assessment if the nurse is providing ongoing 28 counseling services to the patient. (Id. at 26.) This statement is inapplicable to Hager because Nurse Markey was not providing ongoing counseling services to him.

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1 Defendant does not seem to raise such an objection to this aspect of Nurse Puchkors’s 2 opinion and the Court concludes that any such challenge would be unavailing. “The law 3 doesn’t require a medical expert to recite a specific incantation, but it does require the 4 expert to at least opine as to the standard of care and that the nonparty’s conduct fell below 5 it.” Buffington v. United States, 2022 WL 14640030, *2 (D. Ariz. 2022). See also 6 Windhurst v. Arizona Dep’t of Corr., 2021 WL 4465526, *6 (Ariz. Ct. App. 2021) (“[T]o 7 withstand summary judgment, Windhurst was not required to use magic words to establish 8 that Corizon had a duty and breached it.”); Irizarry-Pagan v. Metro Santurce, Inc., 2022 9 WL 4243567, *4 (D.P.R. 2022), report and recommendation adopted, 2022 WL 3909158 10 (D.P.R. 2022) (“A doctor testifying as an expert witness may sometimes imply a standard 11 of care in their testimony without articulating the magic words, or in other words directly 12 referencing a standard of care . . . .”) (cleaned up). Here, when all reasonable inferences 13 are resolved in Plaintiffs’ favor, a reasonable factfinder could construe Nurse Puchkors’s 14 testimony as setting forth the opinion that performing and charting a mental status 15 assessment falls within the standard of care. In part, this is because her testimony came in 16 response to questions specifically asking what the standard of care entails. (Doc. 82-1 at 17 25-26.) Admittedly, though, not all courts agree that “should be” statements similar to 18 those at issue here may be characterized as valid standard-of-care opinions. Compare 19 Allphin v. Peter K. Fitness, LLC, 78 F. Supp. 3d 987, 993 (N.D. Cal. 2015) (“[A]n expert 20 does not need to specifically say the words ‘medical standard of care’ if he clearly, and 21 specifically, describes what care a doctor, operating under similar circumstances as the 22 plaintiff’s treating physicians, would have exercised in treating a similarly situated 23 plaintiff.”) with Suarez by Suarez v. Wilmington Med. Ctr., Inc., 533 A.2d 1249, 1252 (Del. 24 Super. Ct. 1987) (“But testimony regarding what the standard should be is inapposite to 25 the inquiry of what the standard is. This Court, therefore, concludes that Dr. Museles fails 26 to qualify as an expert . . . .”). 27 Viewing the evidence in the light most favorable to Plaintiffs, a reasonable 28 factfinder could also conclude that Nurse Markey breached this asserted standard of care

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1 by failing to perform and chart a mental status assessment for Hager. Nurse Puchkors 2 testified that a mental status assessment evaluates “orientation[,] . . . appearance, attitude, 3 behavior, affect, mood, perception, thought process, insight, judgment.” (Doc. 82-1 at 25. 4 See also Doc. 57-1 at 15 [“mental status exam” of Hager during his June 17, 2013 visit to 5 a VA clinic assessing “appearance/behavior”; “motor/neuro”; “speech”; “mood”; “affect”; 6 “orientation”; “thought process and content”; “judgment/insight”].) Although Nurse 7 Markey took notes during her examination of Hager documenting some of those required 8 considerations, such as Hager’s thought process and content and judgment/insight,13 and 9 MSA Underwood assessed Hager’s thought process during the PTSD, depression, and 10 suicide screenings,14 those notes, even collectively, omit the majority of the required 11 components of a mental status assessment as defined by Nurse Puchkors. (Compare Doc. 12 57-1 at 25-30 [Nurse Markey’s notes] and id. at 31-33 [MSA Underwood’s notes] with id. 13 at 15-16 [June 17, 2013 mental status assessment].) Tellingly, Defendant does not appear 14 to argue that Nurse Markey actually performed and charted a mental status assessment. 15 Instead, Defendant cites various pieces of evidence in an effort to show that if Nurse 16 Markey had done so, the results would have been “essentially normal” and thus “[e]ven if 17 Nurse Markey failed to perform or chart a mental status assessment, there is no evidence 18 that Mr. Hager’s mental status was altered or that the failure to chart his mental status 19 caused his suicide.” (Doc. 82 at 6-7.) But those arguments go to the question of causation, 20 which is addressed in Part V, and not to the antecedent question of breach addressed here. 21 13 Nurse Markey’s notes stated that Hager did not take his medications because of his 22 work, “[a]gree[d] to take his firearms to his fathers [sic] house,” denied suicidal ideation or plan, stopped running his veteran Facebook page, and verbalized his understanding of 23 the resources Nurse Markey provided. (Doc. 57-1 at 26-28.) 24 14 The PC-PTSD-5+I9 included questions about whether Hager “[h]ad nightmares about the event(s) when you did not want to”; “[t]ried hard not to think about the event(s) 25 or went out of your way to avoid situations that remind you of the event(s)”; had “[b]een constantly on guard, watchful, or easily startled”; “felt numb or detached from people, 26 activities, or your surroundings”; and “felt guilty or unable to stop blaming yourself or others for the event(s) or any problems the event(s) may have caused”; and also “how often 27 have you been bothered by thoughts that you would be better off dead or of hurting yourself in some way.” (Doc. 57-1 at 31-32.) The PHQ-2+I9 asked questions about Hager’s 28 “interest and pleasure in doing things” and whether he felt “down, depressed, or hopeless” or “better off dead or . . . hurting [himself] in some way.” (Id. at 32.)

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1 D. Suicide Risk Assessment (SRA) 2 Nurse Puchkors also testified that “there were deficiencies in the . . . suicide risk 3 assessment and formulation” (Doc. 82-1 at 23) and later elaborated, when asked to describe 4 “what . . . a documented suicide risk assessment look[s] like,” that “[y]ou would document 5 the risk factors. You would document warning signs. You would document protective 6 factors. You would document what level of risk you felt they were, who you 7 communicated that to, and what interventions you were putting in place to mitigate the 8 risk” (id. at 34). Nurse Puchkors further testified that although Nurse Markey administered 9 the C-SSRS to evaluate Hager’s suicide risk, the C-SSRS “is meant to be a screening tool 10 . . . with further assessment to be done by the clinician to determine [suicide] risk. It’s not 11 independent.” (Id.) 12 At this point in the deposition, defense counsel asked Nurse Puchkors to clarify 13 whether she viewed the performance of an SRA during every examination as part of the 14 standard of care or merely as a “best practice.” The following colloquy ensued: 15 Q: And is a suicide risk assessment required at every appointment for 16 every patient?

17 A: I don’t know what the VA requires, but it would be best practice in this case. 18 19 Q: Well, I’m asking you: Does the standard of care require that a suicide risk assessment be performed for every patient at every appointment? 20 A: Yes. 21 22 Q: Where does that standard derive from?

23 A: So the American Psychiatric Nurses Association has outlined a set of competencies for psychiatric mental health nurses that includes doing 24 a comprehensive suicide risk assessment as part of their assessment 25 process. Part of the overall mental health assessment.

26 Q: And you said that’s the American Psychiatric Nurses Association? 27 A: Um hum. Yes. 28 Q: Is that a best practice or is that a requirement?

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1 A: That is a best practice. 2 (Id. at 35.) In other words, Nurse Puchkors initially testified that the performance of an 3 SRA during every examination would merely “be best practice in this case,” then seemed 4 to backtrack and say that the performance of an SRA during every examination is part of 5 the standard of care, but then backtracked again and confirmed it is “a best practice.” 6 As courts have recognized, testimony about “best practices” is insufficient to 7 establish the applicable standard of care in a negligence action. See, e.g., Leibel v. City of 8 Buckeye, 556 F. Supp. 3d 1042, 1082 (D. Ariz. 2021) (“[W]hen asked to identify the source 9 of the applicable ‘standard of care on training,’ Barta conceded that ‘I can’t find a 10 professional standard that I can point directly to.’ Instead, Barta merely stated that 11 providing autism training would be considered a ‘best practice[].’ As courts have 12 recognized, such testimony is insufficient to establish the applicable standard of care in a 13 negligence action.”) (cleaned up); Nickolas v. Structured Asset Mortg. Inv. II Tr. 2006- 14 AR8, 2013 WL 11826532, *2 (D. Ariz. 2013) (“Nickolas does not provide authority stating 15 conduct contrary to ‘best practices guidelines’ supports a negligence claim.”); Somerville 16 ex rel. Somerville v. United States, 2010 WL 2643533, *5 n.9 (M.D. Fla. 2010) (“The Court 17 disagrees with Plaintiff’s contention that Dr. Coady deviated from the standard of care by 18 not following ‘best practices’ guidelines. The standard of care is not equivalent to ‘best 19 practices.’”); Ewans v. Wells Fargo Bank, N.A., 389 F. App’x 383, 390 (5th Cir. 2010) 20 (“Negligence law is concerned with reasonable practices, not best practices.”).15 21 Alternatively, even assuming the administration of an SRA forms part of the 22 23 15 The Court perceives no tension between this conclusion and the conclusion reached 24 in Part III.C as to Nurse Puchkors’s “should be” testimony regarding a mental status assessment. A reasonable factfinder could construe that testimony as opining about the 25 standard of care because Nurse Puchkors seemed to be answering “yes” (albeit with less than ideal precision) to a question about whether she viewed the asserted requirement as 26 falling within the standard of care. (Doc. 82-1 at 25-26 [Q: “[D]oes the standard of care require that [N]urse Markey have performed and charted a mental status exam on every 27 patient that she saw?” A: “It should have been the standard of her assessment, yes.”].) Here, in contrast, Nurse Puchkors repeatedly described the asserted requirement as a “best 28 practice” rather than as part of the standard of care, including when she was specifically asked to differentiate between the two.

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1 standard of care, no reasonable factfinder could conclude on this record that Nurse Markey 2 breached that duty. Nurse Markey and MSA Underwood assessed Hager not only with the 3 C-SSRS (Doc. 57-1 at 29-30) but also with the PC-PTSD-5+PHQ (id. at 31-32), the PHQ- 4 2+I9 (id. at 32-33), an alcohol use screen (id. at 27), and a tobacco use screen (id. at 27- 5 28). (See also id. at 6-7 ¶ 20 [“When I met with Mr. Hager, I administered the [C-SSRS] 6 . . ., and completed a[n] [SRA] . . . .”]; id. at 26 [“SRA & PQ 9 Info.”].) As defense expert 7 Nurse Kifle Jikamo opined, and as the undisputed evidence shows: “RN Markey did not 8 rely solely on the C-SSRS when she assessed Mr. Hager’s suicide risk. RN Markey 9 considered the results of the C-SSRS and the [PHQ-2+I9], a separate depression and 10 suicide screening tool, which was also administered to Mr. Hager on June 24, 2019, and 11 yielded a negative screen for depression or suicide. RN Markey assessed Mr. Hager’s 12 presentation, demeanor, medical history, and his responses to her questions. RN Markey 13 did not rely solely on the C-SSRS to assess Mr. Hager’s suicide risk, but instead relied 14 upon his responses to the [C-SSRS], the PHQ2-I9, a PTSD screen, his clinical presentation 15 on June 24, 2019, and his responses to her questions during their counseling session to 16 determine that he was at low risk of suicide.” (Doc. 82-1 at 81.) Even if, as Plaintiffs’ 17 counsel asserted during oral argument and as Nurse Puchkors seemed to opine during her 18 deposition, Nurse Markey’s suicide-assessment effort remained “deficien[t]” (id. at 23) 19 despite administering all of those tests and considering all of those factors, Nurse Puchkors 20 did not opine that the standard of care required Nurse Markey to do more. Identifying a 21 deficiency in another medical provider’s performance is not the same thing as opining that 22 the deficiency fell below the standard of care. See, e.g., Leibel, 556 F. Supp. 3d at 1082 23 n.14 (“[S]aying a defendant ‘should’ have done something is not the same thing as saying 24 the defendant’s failure to do so fell below the standard of care.”); Robson v. Tinnin, 911 25 S.W.2d 246, 248 (Ark. 1995) (“Quite simply, a statement that a dentist should have given 26 a particular treatment or taken a particular course of action is not the equivalent of stating 27 the applicable standard of care and breach thereof.”); Monroe v. Blevens, 185 So.3d 419, 28 422 (Miss. Ct. App. 2016) (“[T]he fact that something ‘should have’ been done is not

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1 equivalent to stating that it would have been done by a minimally competent physician in 2 the same specialty or general field of practice throughout the United States . . . .”) (cleaned 3 up). 4 E. Intervention 5 Nurse Puchkors also testified that “there were deficiencies in the . . . intervention” 6 (Doc. 82-1 at 23) and later seemed to identify four related “interventions for suicide 7 prevention and discharge” that Nurse Markey should have performed—(1) developing a 8 safety or follow-up plan; (2) communicating with Hager’s family to develop the safety 9 plan; (3) removing lethal means from Hager’s home; and (4) making a same-day referral 10 for an assessment by another provider (id. at 28, 37, 41). Similarly, in her report, Nurse 11 Puchkors wrote: “Following triage, Mr. Hager should have had a comprehensive safety 12 plan implemented that included the input of family members, if at all possible; and Mr. 13 Hager should have had a comprehensive assessment by a competent provider that same 14 day, if possible.” (Doc. 85-1 at 6.) 15 As for the first intervention (developing a safety plan), Nurse Puchkors later 16 clarified that it only forms part of the standard of care if the patient’s assessed level of 17 suicide risk is not “low”: 18 Q. If someone is determined to be at low risk of suicide, is the safety plan 19 required?

20 .... 21 A. A safety plan would not be required, but it would still be an evidence- 22 based intervention that would be appropriate.

23 Q. So do I understand your testimony to be, then, if a patient is determined to be at low risk of suicide, a safety plan is not required; 24 but there would be no harm in instituting one for that patient? Is that 25 accurate? 26 A. Sure. 27 (Doc. 82-1 at 28-29.)16 28 16 Nurse Puchkors’s opinion on this issue is consistent with the opinion of the defense

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1 This qualification is notable because Plaintiffs do not dispute that Hager’s score on 2 the C-SSRS categorized him as low risk for suicide (Doc. 57-1 at 29-30) and do not dispute 3 that Nurse Markey perceived Hager as posing a low risk for suicide. Thus, on this record, 4 no reasonable factfinder could find that Nurse Markey breached the “developing a safety 5 plan” component of Nurse Puchkors’s opined-to standard of care. 6 This conclusion is not undermined by Nurse Puchkors’s assertions in her report that 7 the C-SSRS did not accurately capture Hager’s suicide risk and “is not meant to be 8 comprehensive” and that “had Nurse Markey implemented a comprehensive safety plan 9 and assessment, Mr. Hager’s risk of suicide would have likely been indicated.” (Doc. 85- 10 1 at 6.) As an initial matter, Nurse Puchkors’s report contradicts her later testimony. Nurse 11 Puchkors testified that the standard of care only requires a nurse to develop a safety plan if 12 the patient is not deemed a low risk of suicide; the safety plan itself is not used to determine 13 a patient’s suicide risk. More important, as discussed in Part III.D above, Plaintiffs have 14 not established that Nurse Markey’s use of the C-SSRS, PHQ-2+I9, and PC-PTSD-5+I9 to 15 evaluate Hager’s risk of suicide breached the standard of care. Even if, as Plaintiffs argue, 16 those tests are inadequate because they only rely on a patient’s expressed suicidal 17 ideation,17 Nurse Puchkors did not opine that using those tests to evaluate suicide risk 18 breaches the standard of care. Leibel, 556 F. Supp. 3d at 1082 n.14; Robson, 911 S.W.2d 19 expert, Nurse Jikamo: “A safety plan should be prepared if a patient is at high or intermediate risk of suicide. Because Mr. Hager was not at high or intermediate risk of 20 suicide, the standard of care did not require RN Markey to develop a safety plan with him.” (Id. at 81.) 21 17 Plaintiffs attempt to make this argument through their citation of medical articles— 22 including a few authored by one of the defense experts, Dr. Alan Berman—that critique the efficacy of the C-SSRS to evaluate suicide risk. (See, e.g., Doc. 85-1 at 18 [“Given the 23 frequency with which SI is denied immediately preceding death by suicide, a singular focus on SI as a marker of increased near-term risk or as a necessary gateway to further suicide 24 risk assessment appears misguided. This finding raises questions about the value of prevalently used screening tools (C-SSRS, PHQ-9, Question 9; and the ASQ) that rely of 25 the admission of SI (and its severity) as a gateway to a formulation of heightened risk for suicide.”]; Doc. 85-3 at 201 [“Moreover, we also discussed the difference that makes no 26 difference, that is, that active SI has no greater predictive value with regard to future suicidal behavior compared with passive SI . . . . Findings such as these bring into question 27 the underpinnings of scales such as the [C-SSRS] that establishes a Likert scale for assessing SI with active ideation having greater clinical and predictive import than passive 28 ideation.”], internal citations omitted; Doc. 85-4 at 307 [“The evidence suggests that the [C-SSRS] is conceptually and psychometrically flawed . . . .”].)

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1 at 248; Monroe, 185 So.3d at 422.18 2 More broadly, it is undisputed that Hager did not report suicidal behavior or intent 3 to Nurse Markey or MSA Underwood during the C-SSRS or otherwise during his 4 evaluation, and as a result, Nurse Markey calculated Hager’s suicide risk as low. (Doc. 5 57-1 at 26 [progress note quoting Hager: “I am not suicidal or anything”]; id. [progress 6 note: “Denies thoughts of suicide”]; id. at 29 [C-SSRS, answering “no” to the questions: 7 “Over the past month, have you wished you were dead or wished you could go to sleep and 8 not wake up?”; “[o]ver the past month, have you had any actual thoughts of killing 9 yourself?”; and “[i]n your lifetime, have you ever done anything, started to do anything, or 10 prepared to do anything to end your life . . . ?”]; id. at 32 [PC-PTSD-5+PHQ: “Over the 11 last 2 weeks, how often have you been bothered by thoughts that you would be better off 12 dead or of hurting yourself in some way? Not at all”]; id. [PHQ-2+I9: “Thoughts that you 13 would be better off dead or of hurting yourself in some way[.] Not at all”]; Doc. 82-1 at 14 40 [Nurse Puchkors: “He did not report that [he had any specific plan or intent to die]”]. 15 But see Doc. 57-1 at 32 [PHQ-2+I9: “Feeling down, depressed, or hopeless[.] Several 16 days”].) Given this backdrop, no reasonable factfinder could find that Nurse Markey 17 breached Nurse Puchkors’s opined-to standard of care by failing to develop a safety plan. 18 Cf. Keller v. Arizona Pain Specialists, PLLC, 2023 WL 5438294, *6 (Ariz. Ct. App. 2023) 19 (“Pannozzo testified the standard of care did not require Brownsberger to stop prescribing 20 opioids based on Kristopher’s negative urine drug screens.”). 21 Alternatively, even assuming the formulation of a safety plan is part of the standard 22 of care, the record demonstrates that Nurse Markey did, in fact, discuss the components of 23 a safety plan with Hager—“Hager and I spoke about most of the elements that comprise a 24 safety plan, including identifying warning signs or stressors, discussing coping strategies 25 including utilizing social supports, contact information for additional professional help, 26 27 18 Moreover, Defendant has proffered evidence (which Plaintiffs do not dispute) that 28 the C-SSRS is a ubiquitous tool for assessing suicide risk. (Doc. 82-1 at 80 [Nurse Jikamo report: “Use of the C-SSRS is nearly universal by mental health care providers”].)

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1 and minimizing access to firearms.” (Doc. 57-1 at 9 ¶ 36; id. at 25-28.)19 2 Turning to the second intervention identified by Nurse Puchkors (communicating 3 with family members), Nurse Puchkors later clarified during her deposition that such 4 communication is “not required” when preparing a safety plan: 5 Q. And you say that [a safety plan] should have been implemented with 6 the input of his family members. Is it required to obtain the input of family members when preparing a safety plan with the patient? 7 A. It’s not required. 8 9 (Doc. 82-1 at 36.) This testimony forecloses any claim that Nurse Markey breached the 10 standard of care by failing to communicate with Hager’s family members. Not only was it 11 unnecessary, under Nurse Puchkors’s conception of the standard of care, for Nurse Markey 12 to even formulate a safety plan (because, as discussed, Nurse Puchkors opined that doing 13 so is unnecessary when the assessed suicide risk is low), but Nurse Puchkors acknowledged 14 that family-member communication is “not required” even in the subset of cases requiring 15 a safety plan. That concession means that, under Nurse Puchkors’s conception of the 16 standard of care, family-member communication is akin to a best practice, which for the 17 reasons stated earlier is insufficient to support a negligence claim. See, e.g., Leibel, 556 F. 18 Supp. 3d at 1082; Nickolas, 2013 WL 11826532 at *2; Somerville, 2010 WL 2643533 at 19 *5 n.9; Ewans, 389 F. App’x at 390. 20 Turning to the third intervention (removal of lethal means), the Court acknowledges 21 that Nurse Puchkors’s testimony might, at first blush, appear to establish a standard of care. 22 When asked to identify “what about sending Mr. Hager home with firearms fell below the 23 standard of care,” Nurse Puchkors replied that Nurse Markey should have called “a family 24 member or someone who could remove the firearms . . . to confirm that they were removed 25 . . . [o]r had [Hager] contact someone to ensure that the firearms were removed.” (Doc. 26 27 19 Nurse Puchkors testified that “[a] safety plan would have included identifying triggers and warnings signs. Identifying coping strategies; people to reach out to; follow 28 up; and crisis numbers; ways to make the environment safe; and reasons for living.” (Doc. 82-1 at 36.)

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1 82-1 at 29-30.) Nevertheless, this testimony is insufficient to demonstrate a breach of the 2 standard of care. In her report, Nurse Puchkors does not distinguish between implementing 3 a safety plan and removing lethal means. (Doc. 85-1 at 6 [“Following triage, Mr. Hager 4 should have had a comprehensive safety plan implemented that included the input of family 5 members, if at all possible . . . .”].) Even during her deposition, Nurse Puchkors blurred 6 the lines between the elements of a safety plan and lethal means intervention—“[a] safety 7 plan would have included . . . ways to make the environment safe.” (Doc. 82-1 at 36.) As 8 discussed above, Nurse Puchkors effectively conceded that the standard of care did not 9 require Nurse Markey to develop a safety plan or contact Hager’s family for their input on 10 a safety plan. Given the overlap between a safety plan and lethal means intervention, it 11 follows that Nurse Markey did not breach the standard of care by failing to contact Hager’s 12 family to remove (or supervise the removal of) his firearms. 13 Finally, turning to the fourth intervention (same-day counseling), Nurse Puchkors 14 conceded during her deposition that it does not constitute part of the standard of care: 15 Q. Did the standard of care require that Mr. Hager be seen by a competent 16 provider the same day on . . . June 24, 2019?

17 A. No. 18 (Id. at 40-41.) 19 During oral argument, Plaintiffs’ counsel argued that Nurse Puchkors’s concession 20 on this point is a red herring because she was only discussing whether the standard of care 21 requires being seen by another provider on the same day, which is distinct from whether 22 the standard of care required Nurse Markey to make a referral to another provider for a 23 same-day appointment. 24 This argument is unavailing. Although Nurse Puchkors opined that Nurse Markey 25 “should” have made a same-day referral, she did not opine that the standard of care required 26 a same-day referral.20 During her deposition, Nurse Puchkors testified that Nurse Markey 27 28 20 As discussed in earlier portions of this order, there is a decisive difference between those two opinions. Leibel, 556 F. Supp. 3d at 1082 n.14; Robson, 911 S.W.2d at 248;

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1 “should have . . . set up a follow-up appointment . . . . I would have set [a follow-up 2 appointment sooner than 30 days]—yes, she should have. And/or communicated it to a 3 provider for him to see that day, which is why he was there.” (Doc. 82-1 at 32-33.) 4 However, Nurse Puchkors was later asked to clarify: “When does the standard of care 5 require that a registered nurse refer a patient to a competent provider for additional 6 assessment?” (Id. at 37.) In response, Nurse Puchkors testified that the standard of care 7 requires a same-day referral only in certain circumstances: “When there’s a change of 8 status. When there’s a concern about safety. When there’s something—some sort of action 9 that needs to happen that’s outside of the scope and standards of registered nurse practice; 10 which would be things like prescribing and discharge, and clinical decision making in 11 terms of discharge.” (Id.) Then, during a series of follow-up questions, Nurse Puchkors 12 did not state that Nurse Markey’s examination of Hager implicated any of those 13 circumstances. (Id. at 37-39.) Finally, at the conclusion of that line of questioning, Nurse 14 Puchkors conceded that the standard of care did not require Hager to be seen by another 15 provider on the same day he saw Nurse Markey. (Id. at 40-41.) Given this backdrop, it is 16 impossible to construe Nurse Puchkors’s testimony as providing a valid standard-of-care 17 opinion regarding same-day counseling.21 Instead, the only valid opinion on that topic 18 came from the defense expert, Nurse Jikamo, who opined that “neither the standard of care 19 nor Phoenix VA policy required RN Markey to refer [Hager] for an emergency psychiatric 20 evaluation or comprehensive [SRA] on June 24, 2019.” (Id. at 81.)22 21 22 Monroe, 185 So.3d at 422. 21 During oral argument, Plaintiffs’ counsel also suggested that there is a conflict 23 between Nurse Puchkors’s assertion that Nurse Markey should have made a same-day referral and her statement that the standard of care did not require Hager to be seen by a 24 provider on the same day. Plaintiffs’ counsel further argued that this conflict should not be resolved at summary judgment, but rather should be part of Defendant’s cross- 25 examination of Nurse Puchkors at trial. This argument is unavailing for the reasons explained in the body of this order. 26 22 During oral argument, Plaintiffs’ counsel also argued, without citing case law, that 27 if the standard of care requires a same-day referral to a provider, the burden shifts to Defendant to show that Hager could not have been seen by a provider the same day he saw 28 Nurse Markey. This argument is unavailing because, as explained above, Nurse Puchkors did not testify that the standard of care required a same-day referral.

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1 F. Communication 2 Nurse Puchkors also identified “communication” as an area of deficiency and then 3 elaborated that “[t]he standard of care requires the nurse to communicate any concerns, 4 changes in status, to the interdisciplinary team member.” (Doc. 82-1 at 24.) However, 5 Nurse Puchkors later clarified that “[i]f she [Nurse Markey] had no concerns [about Hager], 6 there would not be something to report. If there were no safety concerns, no concerns with 7 discharge risk, then she would not communicate those.” (Id. at 24-25.) 8 This testimony forecloses any claim that Nurse Markey breached the 9 “communication” component of Nurse Puchkors’s opined-to standard of care. It is 10 undisputed that Nurse Markey did not have any concerns that Hager was suicidal. (Doc. 11 57-1 at 7 ¶ 27 [“Hager seemed sad during the appointment, but he was forthright and matter 12 of fact when answering my questions.”]; id. at 7 ¶ 28 [“Hager was not delirious, delusional, 13 psychotic, insane, or otherwise of unsound mind.”]; id. at 8 ¶ 29 [“There was nothing about 14 Mr. Hager’s demeanor or responses to my questions that made me suspect that he was not 15 being truthful in his responses to my questions.”]; id. at 8 ¶ 30 [“There was nothing about 16 Mr. Hager’s demeanor or his responses to my questions that made me believe he was 17 suicidal.”]; id. at 8 ¶ 31 [“There was nothing about Mr. Hager’s mental state that suggested 18 to me that he was at acute or intermediate risk of suicide.”]; id. at 8-9 ¶ 35 [“[N]othing 19 about Mr. Hager’s clinical presentation, his responses to the PHQ-2+I9, the PC-PTSD- 20 5+I9, or the C-SSRS led me to believe that Mr. Hager was not being truthful or was at risk 21 of suicide.”]. See also id. at 6 ¶ 19 [“MSA Underwood did not advise me that he had any 22 concerns that Mr. Hager was suicidal or posed a danger to others.”].) Thus, under Nurse 23 Puchkors’s formulation of the standard of care, Nurse Markey had no duty to communicate 24 those (non-existent) concerns to other providers. 25 IV. Standard Of Care—Nurse Weishaar 26 In response to the renewed summary judgment motion, Plaintiffs assert that “[t]he 27 VA’s own nursing staff also establishes a breach of the standard of care” (Doc. 85 at 3), 28 and then, in a section of the brief entitled “Nurse Weishaar on the Standard of Care,” argue

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1 that “[a] defendant’s testimony is admissible as to the standard of care” (id. at 5). In reply, 2 Defendant argues, among other things, that “Nurse Weishaar cannot opine on Nurse 3 Markey’s standard of care because he is not board-certified as a [PMH-BC].” (Doc. 88 at 4 4.) 5 Defendant has the better of this argument. As discussed in the earlier summary 6 judgment order, because “Nurse Markey was acting within her specialty as a psychiatric 7 mental health nurse when she treated Hager” and because “Nurse Markey’s PMH-BC 8 credential from the ANCC is a ‘board certification’ for purposes of [A.R.S.] § 12-2604,” 9 any witness who wishes to provide expert testimony establishing the standard of care 10 applicable to Nurse Markey must, under Arizona law, possess the same board certification. 11 (Doc. 72 at 6-15.)23 It is undisputed that Nurse Weishaar does not have an equivalent 12 certification. (Doc. 58-3 at 3.) Thus, Nurse Weishaar is not qualified to opine on the 13 standard of care applicable to Nurse Markey. 14 This is true even though Nurse Weishaar was Nurse Markey’s co-worker. Although 15 “[i]t is accepted in Arizona . . . that the defendant/physician’s own testimony can establish 16 [the] standard of care,” Potter v. H. Kern Wisner, M.D., P.C., 823 P.2d 1339, 1341 (Ariz. 17 Ct. App. 1991) (emphasis added) (citing Vigil v. Herman, 424 P.2d 159, 162 (Ariz. 1967), 18 that principle would be implicated only if Plaintiffs were attempting to rely on Nurse 19 Markey’s testimony regarding the standard of care, not Nurse Weishaar’s. Similarly, 20 although “a policy adopted by a health care provider” may serve as evidence of the standard 21 of care, Peacock v. Samaritan Health Serv., 765 P.2d 525, 529 (Ariz. Ct. App. 1988) (citing 22 Bell v. Maricopa Med. Ctr., 755 P.2d 1180 (Ariz. Ct. App. 1988)), Nurse Weishaar did not 23 testify that Nurse Markey violated any VA policies. Most of Nurse Weishaar’s testimony 24 involved describing his own experiences (Doc. 60-1 at 11-14), and although Nurse 25 26 23 During oral argument, Plaintiffs’ counsel asserted that A.R.S. § 12-2604 does not apply here because Nurse Markey was working in triage when she treated Hager. The 27 Court rejected this argument in the earlier summary judgment order. (Doc. 72 at 7-11 [“Plaintiffs’ attempt to distinguish between ‘triage’ and ‘clinical care’ is unconvincing— 28 Plaintiffs provide no evidence that triage and clinical care are different ‘specialties’ within the meaning of § 12-2604, at least with respect to the Willow Clinic.”].)

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1 Weishaar then described the VA’s policies “on how to perform triage at [the Willow 2 Clinic],” he did not suggest that Nurse Markey violated those policies (id. at 14-16). To 3 the contrary, Nurse Weishaar testified that he did “not see anything” in “the record that 4 would indicate to [him] that Mr. Hager was at elevated risk of suicide that day” and 5 suggested that he would not have felt it necessary to develop a safety plan for Hager or to 6 reach out to Hager’s family. (Id. at 15-16.) Nurse Weishaar also testified that, under VA 7 policy, Nurse Markey was not required to make a referral to a licensed counselor for 8 individual counseling. (Id. at 15 [“No, that’s not necessary. It’s just [required upon a 9 finding of positive] suicide risk for the depression scale. . . . [W]ith the alcohol screen, we 10 give them an opportunity to do alcohol counseling. In this case, I believe [Hager] was 11 asked and declined alcohol counseling. He had a positive alcohol screen, I believe, but that 12 doesn’t require an LIP [licensed individual practitioner] evaluation.”].) Finally, although 13 Plaintiffs correctly note that Nurse Weishaar stated that “if the patient wants to see a 14 provider, . . . I’ll always do the best I can to get them to see somebody” (Doc. 85 at 5, citing 15 Doc. 60-1 at 13), that passage fails to establish a breach of the standard of care for two 16 independent reasons: (1) it does not describe the VA’s policy, which Nurse Weishaar 17 described as “that is left to our discretion” (Doc. 60-1 at 13), but simply describes Nurse 18 Weishaar’s own personal approach; and (2) there is no evidence that Hager insisted on a 19 same-day appointment with another provider or otherwise expressed concern with Nurse 20 Markey’s plan to have him meet with a counselor within 30 days. (Doc. 57-1 at 9 ¶ 40 21 [Nurse Markey declaration: “I scheduled Mr. Hager for an appointment with Dr. Troutman, 22 a psychiatrist at the Willow Clinic on July 24, 2019. The appointment date met the Phoenix 23 VA’s scheduling policy, which required that an appointment be set within 30 calendar days 24 from the date the Veteran requests outpatient health care service. Mr. Hager did not express 25 any concern about the appointment date.”].) 26 … 27 … 28 …

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1 V. Proximate Causation 2 A. The Parties’ Arguments 3 As discussed in Parts III and IV above, Plaintiffs have only presented legally 4 sufficient evidence of one potential breach of the standard of care by Nurse Markey—her 5 failure to perform and chart a mental status assessment. Under A.R.S. § 12-563(2), 6 Plaintiffs must show that “[s]uch failure was a proximate cause of the injury.” 7 Defendant argues that Plaintiffs cannot make the required showing because “[e]ven 8 if Nurse Markey failed to perform or chart a mental status assessment, there is no evidence 9 that Mr. Hager’s mental status was altered or that the failure to chart his mental status 10 caused his suicide.” (Doc. 82 at 7.)24 11 In response, Plaintiffs do not directly address the interplay between the asserted 12 mental status assessment failure and the issue of proximate causation. Instead, Plaintiffs 13 more broadly argue that “all that the factfinder needs to find for the Plaintiffs to prevail is 14 that Nurse Markey’s negligence was ‘a cause’ of Ed’s death by suicide.” (Doc. 85 at 3, 15 emphasis omitted.) Plaintiffs argue they can satisfy this burden because “[a]s to causation, 16 the Plaintiffs’ expert [Dr. Thomas Joiner] has opined that had [Hager] been seen by a 17 counselor that day, it is more likely than not that he would not have died by suicide.” (Id.) 18 B. Analysis 19 “Regarding causation, a plaintiff must show ‘a natural and continuous sequence of 20 events stemming from the defendant’s act or omission, unbroken by any efficient 21 intervening cause, that produces an injury, in whole or in part, and without which the injury 22 would not have occurred.’ Moreover, a plaintiff must show that causation is probable, not 23 merely speculative.” Sampson v. Surgery Ctr. of Peoria, LLC, 491 P.3d 1115, 1118 (Ariz. 24 2021). Additionally, “in a medical malpractice case, . . . to establish the requisite causal 25 24 26 Defendant also offers extensive arguments regarding the issues of superseding/intervening and actual cause (id. at 10-15), and Plaintiffs offer extensive 27 counterarguments as to those issues (Doc. 85 at 6-13). Because, as discussed in this order, Defendant is entitled to summary judgment for other reasons, it is unnecessary to reach 28 those issues or proceed with the certification request related to those issues that was contemplated in the earlier summary judgment order (Doc. 72 at 20-28).

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1 connection, the plaintiff’s expert is generally required to testify as to probable causes of 2 the plaintiff’s injury.” Id. (cleaned up). “[T]he requirement of expert testimony in a 3 medical malpractice action is a substantive component of the common law governing this 4 tort action, and . . . failure to produce such a witness results in judgment for the defendant.” 5 Id. at 1118-19 (cleaned up). “[E]xpert causation testimony is necessary unless causation 6 is readily apparent to the jury on the facts. In a case where the standard of care or the cause 7 of death is disputed on a matter requiring medical knowledge to resolve, it is difficult, if 8 not impossible, to imagine a situation where lay jurors, untrained in medicine or medical 9 procedure, could properly determine liability absent expert guidance.” Id. at 1119 (cleaned 10 up). 11 Applying these standards, Defendant is entitled to summary judgment. Dr. Joiner, 12 Plaintiffs’ expert on causation, did not identify a causal connection between Nurse 13 Markey’s failure to perform or chart a mental status assessment and Hager’s suicide. In 14 his report, Dr. Joiner opined that Hager had at least a moderate risk of suicide and that had 15 Nurse Markey implemented a proportionate clinical management plan,25 contacted Hager’s 16 family to retrieve or supervise the retrieval of his guns, and scheduled Hager to see a 17 counselor on June 24, 2019, “his safety would have been optimized, his demoralization 18 and depression reduced, and his suicide risk mitigated, all such that it was more likely than 19 not that his death by suicide would have been averted.” (Doc. 85-1 at 10-11.) Dr. Joiner 20 specifically focused on the connection between Hager’s failure to receive same-day 21 counseling and his suicide—“it is my opinion that if Ed Hager had received counselling on 22 June 24, 2019, it is more likely than not that he would not have attempted suicide.” (Id. at 23 9.) But as discussed in Parts III and IV above, Plaintiffs have not come forward with 24 25 Dr. Joiner recommended a “clinical management plan that would be proportionate 25 to Mr. Hager’s clinical and risk presentation [to] include the following: (a) caring follow- up within hours to days to revisit the issue of safety planning . . . , with a goal both 26 maximizing near-term safety and lessening a crisis’ danger via ‘remoralization;’ (b) ample encouragement to visit with a physician within hours to days to begin a course of 27 antidepressant medication, as determined by the physician; (c) reference, the day of Mr. Hager’s initial visit, to principles of behavioral activation that can be instituted immediately 28 . . .; and (d) a longer-term behaviorally-focused psychotherapy, drawing in cognitive therapy principles as appropriate, to be started within days.” (Doc. 85-1 at 10.)

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1 cognizable evidence that the standard of care required Nurse Markey to arrange for Hager 2 to receive same-day counseling.26 3 At most, Dr. Joiner’s report could be interpreted as opining that Hager’s suicide risk 4 level was miscalculated, and had it been properly calculated, Nurse Markey would have 5 implemented a clinical management plan, contacted Hager’s family to supervise the 6 removal of his guns, and scheduled him to see a provider that day, which, together, would 7 have more likely than not prevented Hager’s suicide. But even this generous reading fails 8 to identify how Nurse Markey’s failure to perform or chart a mental status assessment 9 affected Nurse Markey’s calculation of Hager’s suicide risk or caused his suicide. Cf. 10 Leimbach v. Hawaii Pac. Health, 2015 WL 4488384, *10 (D. Haw. 2015) (“Finally, to the 11 extent Plaintiff asserts that Defendants failed to chart his low blood pressure or the 12 assertion of their nurse, the FAC provides no allegations explaining how these omissions 13 are linked to Plaintiff’s injury or amount to an EMTALA claim.”). 14 Nurse Puchkors’s testimony—although not identified by Plaintiffs as support for 15 their causation argument—does nothing to change the analysis.27 When asked if she had 16 “an opinion on whether, if all of” the additional steps she identified “had been done, Mr. 17 Hager would have completed suicide,” Nurse Puchkors responded: “I don’t know that we 18 can answer that. But they are definitely evidence-based interventions that have been shown 19 to decrease the likelihood of suicide.” (Doc. 82-1 at 41-42.) Such equivocal expert 20 testimony is insufficient to establish the sort of causal link required by Arizona law. 21 Sampson, 491 P.3d at 1119-20 (“More significantly, Dr. Greenberg did not opine that 22 26 Also, Dr. Joiner did not opine that it was the absence of a referral for same-day 23 counseling that caused Hager’s suicide—rather, he opined that it was the absence of actual same-day counseling that provided a causal link. (Doc. 85-1 at 9, emphasis added [“In 24 sum, it is my opinion that if Ed Hager had received counselling on June 24, 2019, it is more likely than not that he would not have attempted suicide . . . .”].) Thus, even if Nurse 25 Puchkors had testified that the standard of care required a same-day referral—which she did not, for the reasons discussed in Part III.E above—her concession that the standard of 26 care did not require actual same-day counseling means there is still a mismatch between the alleged breach of the standard of care and Dr. Joiner’s causation theory. 27 27 There is also the separate issue that Nurse Puchkors was not retained by Plaintiffs 28 as an expert regarding causation. (Doc. 82-1 at 43 [answering “[n]o” when asked if she was “retained to provide testimony on causation in this matter”].)

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1 insufficient observation was the probable proximate cause of Amaré’s death. Rather, he 2 opined that greater observation ‘could have’ allowed Surgery Center personnel to 3 resuscitate Amaré. . . . [T]his failure to connect the dots between the premature discharge 4 and Amaré’s death would leave the jury to infer that Surgery Center’s failure to observe 5 was the proximate cause. [But] causation must be shown to be probable and not merely 6 possible, and generally expert medical testimony that a subsequent illness or disease 7 ‘could’ or ‘may’ have been the cause of the injury is insufficient. Dr. Greenberg’s assertion 8 that a longer observation period could have prevented Amaré’s death is therefore 9 insufficient as a matter of law to prove causation.”) (cleaned up); Spielman v. Indus. 10 Comm’n of Arizona, 788 P.2d 1244, 1246-47 (Ariz. Ct. App. 1989) (affirming the 11 administrative law judge’s determination that an expert’s statement, “[h]ow that relates to 12 his industrial injury, I feel is something for you to resolve,” was insufficient to establish 13 causation) (emphasis omitted).28 Additionally, Nurse Puchkors’s equivocal deposition 14 testimony on causation covered the combined impact of all four of the deficiencies she 15 cited—even though, as discussed in Part III, Plaintiffs can only show that one of those 16 asserted deficiencies (the failure to perform or chart a mental status assessment) breached 17 the standard of care. 18 Nor does Nurse Puchkors’s report come close to establishing the required causal 19 connection. In her report, Nurse Puchkors stated that “[h]ad Nurse Markey implemented 20 a comprehensive safety plan and assessment, Mr. Hager’s risk of suicide would have likely 21 been indicated. . . . Had Mr. Hager’s risk been indicated on that day, then steps could have 22 been taken to prevent Mr. Hager’s death by suicide.” (Doc. 85-1 at 6.) But saying that 23 steps “could” have been taken to prevent Hager’s suicide is too vague and equivocal to 24 suffice. Sampson, 491 P.3d at 1120 (“[G]enerally expert medical testimony that a 25 26 28 During oral argument, defense counsel asserted that Dr. Joiner’s causation opinions are insufficient for the additional reason that they, too, are filled with the sort of qualifiers 27 and equivocations that Sampson forbids. It is unnecessary to resolve this issue because, as discussed in the body of this order, Dr. Joiner’s causation opinions are insufficient for an 28 unrelated reason—the mismatch between those opinions and Nurse Puchkors’s opinions regarding the standard of care.

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1 subsequent illness or disease ‘could’ or ‘may’ have been the cause of the injury is 2 insufficient. Dr. Greenberg’s assertion that a longer observation period could have 3 prevented Amaré’s death is therefore insufficient as a matter of law to prove causation.”) 4 (cleaned up). Additionally, even if Nurse Puchkors’s report is generously construed as 5 connecting the failure to perform or chart a mental status assessment to an incorrect suicide 6 risk calculation to Hager’s suicide, that connection is speculative and not supported by the 7 record. As explained in Part III above, Nurse Markey relied on the C-SSRS, PHQ-2+I9, 8 and PC-PTSD-5+I9 to calculate Hager’s suicide risk, and these tests use a patient’s verbal 9 articulation of suicidal intent, plan, or ideation to calculate suicide risk. Thus, conducting 10 a mental status assessment would not have changed the results of the C-SSRS, PHQ-2+I9, 11 and PC-PTSD-5+I9, as Hager did not convey suicidal intent, plan, or ideation. Cf. Puckett 12 v. United States, 2023 WL 8436565, *5 (D. Ariz. 2023) (“[E]ven if Dr. Gilbert referred 13 Plaintiff to a cardiologist, there is no indication on what tests or interventions the 14 cardiologist would normally undertake, or what their effect would be. These unanswered 15 questions leave the jury to speculate, which is impermissible under Arizona law. 16 Moreover, they fail to show a natural and continuous sequence of events stemming from 17 Dr. Gilbert’s alleged failure to act and therefore do not show proximate cause.”). 18 Accordingly, 19 IT IS ORDERED that Defendant’s motion for summary judgment (Doc. 82) is 20 granted. The Clerk shall enter judgment accordingly and terminate this action. 21 Dated this 22nd day of February, 2024. 22 23 24 25 26 27 28

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