Renalda Benally v. Coconino County, et al.

Opinion

1 WO JL 2 3 4 5 8 9 Renalda Benally, No. CV-24-08049-PCT-MTL (MTM) 10 Plaintiff, 11 v. ORDER 12 Coconino County, et al., 13 Defendants.

14 15 Defendants AB Staffing Solutions LLC (“AB Staffing”), Registered Nurse (RN) 16 Dayna Heath, Nurse Practitioner (NP) Fatimah Lah, and Licensed Practical Nurse (LPN) 17 Tyler Tate (“AB Staffing Defendants”) move for summary judgment on the merits of 18 Plaintiff’s Fourteenth Amendment medical care claim and state-law claims for medical 19 malpractice, survival, wrongful death, and intentional infliction of emotional distress. 20 (Doc. 148.) Defendants Registered Nurses (RNs) Janeen Fraser and Leann James 21 separately move for summary judgment on the merits of Plaintiff’s Fourteenth Amendment 22 medical care claim and on qualified immunity grounds. (Doc. 150.) Plaintiff filed a 23 Response to the Motions. (Doc. 157.) Defendants filed Replies. (Docs. 166, 167.) 24 The Court will grant the Motions for Summary Judgment. 25 I. Background 26 Plaintiff Renalda Benally, on her own behalf and on behalf of the estate of Gibson 27 Benally, filed a Complaint asserting claims under § 1983 and related state-law claims 28 regarding the death of her father, Gibson Benally, while he was in the custody of Navajo 1 and Coconino Counties. In the operative First Amended Complaint (FAC), Plaintiff sued 2 Navajo and Coconino Counties, numerous individuals who were employed at the County 3 Jails while Benally was in custody, and private entities that contracted with the Jails to 4 supply medical care providers. (Doc. 65.) The Court granted in part and denied in part 5 Defendants’ Motions to Dismiss and dismissed Navajo County, Navajo County Jail 6 District, Coconino County, Coconino County Jail District, and several individual 7 Defendants without prejudice. (Doc. 100.) The Magistrate Judge denied Plaintiff’s Motion 8 for Leave to File Second Amended Complaint. (Doc. 129.) The parties then stipulated to 9 the dismissal of certain other Defendants. (Doc. 137.) 10 The remaining claims are a § 1983 medical care claim against Defendants Heath, 11 Lah, Tate, James, and Fraser (Count Two); a medical malpractice claim against Defendants 12 Heath, Lah, Tate, James, and Fraser (Count Three); a survival claim on behalf of the Estate 13 against all Defendants (Count Four); a wrongful death claim against all Defendants (Count 14 Five); and a claim for intentional infliction of emotional distress against Defendants Heath, 15 Lah, Tate, James, and Fraser (Count Six). (Doc. 65 at 12-19.) 16 II. Summary Judgment Standard 17 A court must grant summary judgment “if the movant shows that there is no genuine 18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 19 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 20 movant bears the initial responsibility of presenting the basis for its motion and identifying 21 those portions of the record, together with affidavits, if any, that it believes demonstrate 22 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 23 If the movant fails to carry its initial burden of production, the nonmovant need not 24 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 25 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 26 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 27 contention is material, i.e., a fact that might affect the outcome of the suit under the 28 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 1 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 2 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 3 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 4 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 5 it must “come forward with specific facts showing that there is a genuine issue for trial.” 6 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 7 citation omitted); see Fed. R. Civ. P. 56(c)(1). 8 At summary judgment, the judge’s function is not to weigh the evidence and 9 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 10 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 11 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 12 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 13 III. Facts* 14 Defendant AB Staffing is a temporary staffing company that recruits qualified 15 medical personnel to government healthcare clients. (AB Staffing Defendants’ Statement 16 of Facts (ABDSOF), Doc. 149 ¶ 1.) AB Staffing contracted with the Coconino County Jail 17 to provide medical personnel, including Defendants Lah, Tate, and Heath, to work at the 18 Coconino County Jail. (Id. ¶ 2; Doc. 149 at 9-15.) Defendants Fraser and James were 19 employed at the Coconino County Jail. (Defs.’ Fraser and James Statement of Facts 20 (FJSOF), Doc. 151 ¶ 6; James Decl., Doc. 151-1 at 36 ¶ 5.) 21 On March 24, 2022, Gibson Benally (“Benally”) was admitted to the Coconino 22 County Jail. (ABDSOF ¶ 3.) The next day, Defendant James conducted an initial medical 23 screening. (Doc. 149 at 21.) Defendant James noted a history of hypertension. (Id.) 24 Benally’s blood pressure that day was documented as 166/117, and his pulse was 77. (Id.) 25 26 * The AB Staffing Defendants and Defendants Fraser and James filed separate 27 Statements of Facts in support of their Motions for Summary Judgment. (Docs. 149, 151.) Plaintiff filed separate Responses to each Statement of Facts. (Docs. 155, 159.) Plaintiff 28 also separately filed a Statement of Additional Facts in support of her Response to the Motions for Summary Judgment. (Doc. 158.) 1 Defendant James entered a note stating: “check BP daily x 3 days; if any BP readings are 2 elevated per our standing directives (> 140/90), generate a task to continue BP checks 2 x 3 per week x 2 weeks and enter a task for medical provider to review BP at the end of that 2 4 week period.” (Id. at 25.) 5 Benally’s blood pressure and pulse were checked once each day on March 26, 27, 6 and 28, 2022, while he was seated. (Id. at 28.) On March 26, Benally’s blood pressure 7 was recorded as 150/98, and his pulse was 79; on March 27, his blood pressure was 129/93, 8 and his pulse was 72; and on March 28, his blood pressure was 135/89, and his pulse was 9 78. (Id.) On March 26, 2022, medical staff received a verbal order to administer Lisinopril 10 30 mg, which Defendant James administered. (Id. at 27.) 11 At 7:00 p.m. on April 17, 2022, Defendant Heath saw Benally for medical 12 complaints. (ABDSOF ¶ 7.) Just before 12:30 a.m. on April 18, Defendant Heath entered 13 a Medical Note stating, “Called to I/M bunk, reports feeling very weak and dizzy. Blood 14 glucose 166, BP 142/106[,] HR 100. No s/s of distress, no diaphoresis [sweating], no 15 vomiting, or blurred vision. Encouraged I/M to rest on L side and to notify medical staff 16 for any status change. I/M verbalized understanding.” (Doc. 149 at 27.) 17 According to a work schedule, on April 18, 2022, Defendant Heath was scheduled 18 to work a night shift, and Defendant Fraser was scheduled to work from 5:00 a.m. to 5:00 19 p.m. (Doc. 158-4.) Defendant James was scheduled to work from 7:30 a.m. to 5:30 p.m., 20 and Defendant Tate was also scheduled to work, but her shift is not noted. (Id.) 21 At 4:55 p.m., on April 18, 2022, Benally was seen on surveillance standing up, then 22 “[a] short time later, [lying] back down on his bunk” (ABDSOF ¶ 10; Pl.’s Controverting 23 Statement of Facts (PCSOF), Doc. 155 ¶ 10; Doc. 149 at 44.) The surveillance video shows 24 that one minute later, an inmate went to Benally’s bunk then pushed the pod emergency 25 call button and advised that he had an emergency with another inmate. (ABDSOF ¶¶ 11- 26 12; Doc. 149 at 44.) Sergeant O’Brien entered the dorm and asked an inmate what was 27 going on, and the inmate advised that Benally was having the same problems he had last 28 night and that he was blacking out. (Doc. 149 at 44.) Sergeant O’Brien notified nursing 1 staff and left the dorm. (Id.) 2 At 5:03 p.m., Defendant Fraser arrived at the dorm with another detention officer 3 and examined Benally. (ABDSOF ¶ 15; Doc. 149 at 44.) A Medical Note Fraser entered 4 at 5:53 p.m. on April 18, 2022, states: “Called to F-Pod by [Sergeant] O’Br[ie]n at 1650 5 since I/M c/o SOB. I/M was found lying on his bed upon my arrival. He reported that he 6 started feeling poorly on Thursday (April 14). He stated that he felt dizzy. . . . BP was 7 119/77, P 116, O2 sats 98%. I/M was instructed to sit up on the edge of the bed. BP 8 115/77, P 100. He was then instructed to stand with a BP of 114/70, P 121.” (Doc. 149 at 9 26.) Defendant Fraser noted, “I/M reported only drinking four glasses of water/day. He 10 was reassured that his vital signs were normal. He walked to the table to eat his dinner.” 11 (Id.) At 5:10 p.m., Defendant Fraser and Sergeant O’Brien left the dorm. (Id. at 44.) 12 At 5:11 p.m., an inmate ran to the door and pushed the emergency button. 13 (ABDSOF ¶ 20; Doc. 149 at 44.) Less than 30 seconds later, a detention officer ran into 14 the dorm to Benally. (Doc. 149 at 44.) Sergeant O’Brien reported to Defendant Fraser that 15 Benally was feeling dizzy. (ABDSOF ¶ 21.) At 5:13 p.m., Defendant Fraser and Sergeant 16 O’Brien entered the dorm. (ABDSOF ¶ 22; Doc. 149 at 44.) Defendant Fraser and 17 Sergeant O’Brien asked other inmates if Benally had fallen, and one inmate told them that 18 Benally could not stand up. (Doc. 149 at 44.) Defendant Fraser reevaluated Benally at the 19 dorm table. (Id.) During the evaluation, Benally placed his head on the table multiple 20 times, and his breathing could be heard on the dorm audio recording. (Id.) Defendant 21 Fraser’s Medical Note states, “As I was walking back to the Medical Department, 22 [Sergeant] O’Br[ie]n was calling for me again. He stated that the I/M was reporting being 23 dizzy. I/M was found sitting at the table. . . . I/M was found to be hyperventilating. His 24 BP was 148/65, P 62, O2 sats 92%. He had to be repeatedly encouraged to slow down his 25 breathing. Once he was more calm, his BP was 107/79, P 51.” (Id. at 26.) 26 At 5:20 p.m., detention officers assisted Benally back to his bunk, and Defendant 27 Fraser and the officers left the dorm. (ABDSOF ¶¶ 27-28.) At 5:25 p.m., Benally was 28 heard breathing loudly at his bunk. (Doc. 149 at 44.) At 5:32 p.m., an inmate pushed the 1 emergency button and advised that Benally was saying that his chest pains were getting 2 worse. (Id.) Sergeant O’Brien called the medical department. (ABDSOF ¶ 31.) 3 According to Defendant Fraser’s Medical Note, “[w]ithin minutes of leaving the pod,” 4 Sergeant O’Brien “called the Medical Department to report that [Benally] was c/o chest 5 pain,” and Benally was transported to the Medical Department in a wheelchair. (Doc. 149 6 at 26.) 7 At 5:36 p.m., Defendant Heath, whose shift had not started, entered the dorm with 8 a wheelchair and removed Benally from the dorm. (ABDSOF ¶ 32.) Three minutes later, 9 Defendant Heath and Benally arrived at a medical cell. (Id. ¶ 34; Doc. 149 at 43.) Benally 10 could be heard on surveillance footage with labored breathing and making incoherent 11 noises. (Doc. 149 at 43.) At 5:41 p.m., Defendant Heath and Sergeant O’Brien left the 12 medical cell. (Id.) A short time later, Defendant Heath walked past the medical cell to put 13 away the wheelchair but did not check on Benally. (Pl.’s Statement of Additional Facts 14 (PSOAF), Doc. 158 at 8 ¶ 64; Doc. 149 at 43.) At 5:51 p.m., Benally was “making a 15 moaning type of noise,” which could be heard on the surveillance footage of the medical 16 cell. (PSOAF ¶ 65; Doc. 149 at 43.) No one in the medical unit went to check on Benally. 17 (PSOAF ¶ 66.) 18 At 5:53 p.m., Defendant Fraser entered her medical note regarding Benally’s 19 complaints. At 6:06 p.m., Sergeant Wagoner arrived in the medical unit to conduct a 20 security check, observed Benally, exited the cell, and notified nursing staff of a “Code 3.” 21 (ABDSOF ¶¶ 40-41; Doc. 149 at 43.) At 6:08 p.m., Defendants Tate, Heath, and Fraser 22 arrived at the cell with lifesaving medical equipment. (ABDSOF ¶ 42.) Defendant James 23 was working in the nursing station. (FJSOF ¶ 24.) One minute later, the nurses advised 24 officers to call 911. (ABDSOF ¶ 43.) Detention officers and the nursing staff performed 25 lifesaving measures until EMTs from the Flagstaff Fire Department arrived at 26 approximately 6:21 p.m. and took over care of Benally. (Id. ¶ 44.) Benally was 27 pronounced dead at 6:39 p.m. (Id. ¶ 46.) 28 . . . . 1 A report from the Flagstaff Fire Department states,

2 UPON ARRIVAL ON SCENE, JAIL STAFF ADVISED THAT THEY 3 WERE PERFORMING CPR ON THE PT. THE PT WAS FOUND APNEIC AND PULSELESS LAYING ON THE GROUND IN THE HALLWAY. 4 JAIL STAFF WAS PERFORMING CPR WITH AN AED APPLIED. JAIL 6 PULSELESS IN HIS CELL. JAIL STAFF STARTED IMMEDIATE CPR 7 AND APPLIED THE AED. CPR APPEARED TO BE ADEQUATE. STAFF REPORTS THAT THE PT HAD BEEN COMPLAINING OF 8 CHEST PAIN THROUGHOUT THE DAY AND THAT THEY HAD PERFORMED A MEDICAL CHECK ON HIM, SHOWING THAT ALL 9 OF HIS VITALS WERE NORMAL. 10 11 (Doc. 158-9 at 2.) 12 The medical examiner determined Benally’s cause of death was “Pulmonary 13 thromboembolism” due to “Deep venous thrombosis, left lower leg” with other significant 14 conditions of “Chronic alcohol abuse; hypertension; left leg ulcer with abscess formation.” 15 (Doc. 149 at 46.) His manner of death was documented as “Natural.” (Id.) 16 During a subsequent investigation by the Coconino County Sheriff’s Department, 17 Detective Tristan G. Meyer reviewed Inmate Log Reports for Benally, which documented 18 security checks performed each day that he was at the facility. (Id. at 41.) Detective Meyer 19 noted the log documented 61 checks on April 14; 48 checks on April 15; 46 checks on 20 April 16; 53 checks on April 17; and “approximately” 52 checks on April 18, 2022. (Id.) 21 Deputy Mindy Feldman interviewed Defendant Fraser. (Id. at 36.) According to 22 Deputy Feldman’s report, Defendant Fraser “advised [Benally] had been complaining of 23 medical issues since last Thursday 4/14/2022. [Defendant] Fraser stated she saw [Benally] 24 around 1700 on 04/18/2022 for complaints of being dizzy. [Defendant] Fraser advised 25 [Benally’s] vitals were all at the correct levels.” (Id.) Deputy Feldman noted that 26 Defendant Fraser “mentioned [Benally’s] pulse was slightly elevated, but she believed it 27 was due to him hyperventilating” and that Defendant Fraser “mentioned [Benally] stated 28 he was not drinking enough water.” (Id. at 36-37.) 1 Detective Tristan Meyer interviewed the inmate who had been on the bunk next to 2 Benally, who told Meyer that Benally’s “chest had been hurting him and that nursing staff 3 had come down to evaluate him a couple of times.” (Id. at 43.) The inmate told Detective 4 Meyer that the inmate believed Benally was having a heart attack or a stroke. (Id.) The 5 inmate also told Detective Meyer that Benally’s “medical incident” had occurred around 6 dinner time and that he had been complaining of blacking out. (Id.) Detective Meyer asked 7 the inmate what symptoms Benally had complained about during the incident, and the 8 inmate told Meyer that Benally had been having trouble breathing, and his chest hurt. (Id.) 9 The inmate also told Detective Meyer that in the afternoon the day before, Benally had 10 fallen while he was coming out of the shower. (Id.) 11 At some point on April 18, 2022, the same inmate called Plaintiff. (Doc. 158-3 at 12 2.) According to a transcript of the call, Plaintiff asked, “So he was complaining about just 13 the chest pain?” The inmate responded, “Yeah. For a couple days, three days, that’s 14 it . . . . And then yesterday he started falling over.” (Id.) The inmate said, “oh, then he got 15 worse today. So -- and his chest (inaudible).” (Id.) Plaintiff asked, “And they didn’t do 16 anything?” The inmate said, “No. They -- didn’t want to -- really doing much. They just 17 kept checking his blood pressure and that was it. Then they leave. Then he kept -- it kept 18 happening and they come in and check his blood pressure. And we’re like – we’re trying 19 to tell them. I don’t think it’s his blood pressure. You guys need to take him to medical 20 or check him or something.” (Id.) 21 IV. Plaintiff’s Non-Opposition 22 Plaintiff does not oppose the entry of summary judgment in favor of Defendants AB 23 Staffing, Lah, James, and Tate as to the Fourteenth Amendment claim or as to Defendants 24 Heath, Lah, and Tate as to the state-law claims in Count Three through Six. Accordingly, 25 the Court will grant the Motions for Summary Judgment as to those claims. 26 V. Defendants Fraser and James’s Motion 27 The only remaining claim the Court must address with respect to Defendants Fraser 28 and James’s Motion is the § 1983 Fourteenth Amendment medical care claim against 1 Defendant Fraser. To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the 2 defendants (2) under color of state law (3) deprived him of federal rights, privileges or 3 immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 4 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game 5 Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must demonstrate 6 that he suffered a specific injury because of the conduct of a particular defendant, and he 7 must show an affirmative link between the injury and the conduct of that defendant. Rizzo 8 v. Goode, 423 U.S. 362, 371-72, 377 (1976). 9 A. Fourteenth Amendment Medical Care Standard 10 “Individuals in state custody have a constitutional right to adequate medical 11 treatment.” Sandoval v. County of San Diego, 985 F.3d 657, 667 (9th Cir. 2021). For 12 pretrial detainees, the right to adequate medical care arises under the Due Process Clause 13 of the Fourteenth Amendment. Id. The Ninth Circuit Court of Appeals has held that 14 “claims for violations of the right to adequate medical care ‘brought by pretrial detainees 15 against individual defendants under the Fourteenth Amendment’ must be evaluated under 16 an objective deliberate indifference standard.” Gordon v. County of Orange, 888 F.3d 17 1118, 1124-25 (9th Cir. 2018) (quoting Castro v. County of Los Angeles, 833 F.3d 1060, 18 1070 (9th Cir. 2016)). To prevail on a medical care claim under this standard, a pretrial 19 detainee must show

20 (i) the defendant made an intentional decision with respect to 21 the conditions under which the plaintiff was confined;

22 (ii) those conditions put the plaintiff at substantial risk of 23 suffering serious harm;

24 (iii) the defendant did not take reasonable available measures 25 to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 26 involved—making the consequences of the defendant’s 27 conduct obvious; and

28 (iv) by not taking such measures, the defendant caused the 1 plaintiff’s injuries. 2 3 Id. at 1125. “With respect to the third element, the defendant’s conduct must be objectively 4 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each 5 particular case.’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 576 U.S. 6 389, 397 (2015); Graham v. Connor, 490 U.S. 386, 396 (1989)). 7 The “‘mere lack of due care by a state official’ does not deprive an individual of 8 life, liberty, or property under the Fourteenth Amendment.” Castro, 833 F.3d at 1071 9 (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). A plaintiff must “prove more 10 than negligence but less than subjective intent—something akin to reckless disregard.” Id. 11 B. Parties’ Arguments 12 Defendants argue that Plaintiff cannot meet the deliberate indifference standard 13 because there is no evidence that Defendant Fraser was “‘actually’ aware that Benally was 14 experiencing a life-threatening condition.” (Doc. 150 at 7.) Defendants point out that 15 Defendant Fraser “denies knowing, or even suspecting,” that Benally was suffering from a 16 life-threatening condition. (Id.) Defendants also contend there is no evidence that 17 Defendant Fraser made an “intentional” decision regarding Benally’s conditions of 18 confinement or that her conduct was objectively unreasonable under the circumstances. 19 (Id. at 8.) 20 In response, Plaintiff contends she has presented sufficient evidence to defeat 21 summary judgment as to each of the Gordon factors. (Doc. 157 at 16.) Plaintiff contends 22 that Defendant Fraser was called upon three times to help Benally on April 18, 2022; met 23 with him on two occasions, once for three minutes and then for eight minutes; checked his 24 vital signs but did not act upon the “concerning changes” in his vital signs; “intentionally 25 chose” to tell him to “calm down and drink water”; and then left his bedside. (Id.) Plaintiff 26 asserts that Defendant Fraser later “ignored” Benally’s complaints of chest pain when she 27 “should have immediately called 911.” (Id.) Plaintiff argues that when Benally died, he 28 had multiple emboli in both lungs, meaning that several blood clots had formed, traveled 1 to his lungs, and completely blocked multiple vessels in both lungs. (Id. at 19.) Plaintiff 2 contends this indicates that Benally’s clots began on April 14, when he started reporting 3 symptoms. (Id.) Plaintiff asserts that once Benally complained of chest pain, Defendant 4 Fraser was “required by the standard of care to call 911,” and her decision not to was 5 objectively unreasonable. (Id. at 20.) Plaintiff argues there is evidence in the record that 6 Defendant Fraser “must have known” that Benally was “at serious risk of harm” and that 7 Fraser violated Benally’s Fourteenth Amendment rights by “failing to provide appropriate 8 and necessary medical care.” (Id. at 26-27.) 9 C. Discussion 10 1. Intentional Decision 11 The evidence demonstrates that Defendant Fraser evaluated Benally at his bunk at 12 5:03 p.m.; took his vital signs while he was lying down, sitting on the edge of his bunk, 13 and standing up; left the dorm at 5:10 p.m. and returned three minutes later after Sergeant 14 O’Brien called the medical department; reevaluated Benally at the dorm table; took his 15 vital signs; repeatedly encouraged him to slow down his breathing; took his vital signs 16 again; and then left the dorm at 5:20 p.m. The record supports that Defendant Fraser made 17 intentional decisions regarding Benally’s medical care. 18 2. Substantial Risk of Serious Harm 19 “In the inadequate-medical-care context, the substantial risk of serious harm prong 20 [is] met if there [is] a serious medical need, such that a failure to treat a prisoner’s condition 21 could result in further significant injury or the unnecessary and wanton infliction of pain.” 22 Russell v. Lumitap, 31 F.4th 729, 739 (9th Cir. 2022) (internal quotation marks and citation 23 omitted). This includes the “existence of an injury that a reasonable doctor or patient would 24 find important and worthy of comment or treatment; the presence of a medical condition 25 that significantly affects an individual's daily activities; or the existence of chronic and 26 substantial pain.” Id. Conditions causing death are serious medical needs. Id. (“Russell's 27 aortic dissection was indeed a ‘serious’ medical need, as it resulted in his death.”). 28 The medical examiner determined Benally’s cause of death was “Pulmonary 1 thromboembolism” due to “Deep venous thrombosis, left lower leg” with other significant 2 conditions of “Chronic alcohol abuse; hypertension; left leg ulcer with abscess formation.” 3 The record supports that Benally’s condition put him at substantial risk of serious harm. 4 3. Objectively Unreasonable Conduct 5 Plaintiff points to several decisions or failures by Defendant Fraser that Plaintiff 6 argues were objectively unreasonable. First, when Defendant Fraser evaluated Plaintiff at 7 5:03 p.m., she failed to ask relevant questions and document Benally’s respiratory rate and 8 effort. (PASOF ¶ 88.) Second, when Defendant Fraser reevaluated Plaintiff at the dorm 9 table, she failed to recognize concerning changes in Benally’s heart rate and instead told 10 him to “calm down” and drink water. (Id. ¶ 89.) Third, Defendant Fraser ignored Benally’s 11 complaints of chest pain. (Id. ¶¶ 91-92.) Fourth, Defendant Fraser generally failed to 12 recognize the seriousness of Benally’s symptoms and failed to summon emergency 13 assistance for him. 14 A defendant’s actions are objectively unreasonable if the defendant “disregarded an 15 excessive risk to the plaintiff’s health and safety by failing to take reasonable and available 16 measures that could have eliminated that risk.” Fraihat v. U.S. Immigr. & Customs Enf’t, 17 16 F.4th 613, 636 (9th Cir. 2021) (internal quotation marks and brackets omitted). “To 18 show deliberate indifference, a plaintiff need not ‘prove complete failure to treat’ because 19 ‘access to medical staff is meaningless unless that staff is competent and can render 20 competent care.’” Russell, 31 F.4th at 740 (quoting Ortiz v. Imperial, 884 F.2d 1312, 1314 21 (9th Cir. 1989)). And “[a] defendant can be liable even if he did not actually draw the 22 inference that the plaintiff was at a substantial risk of suffering serious harm, so long as a 23 reasonable official in his circumstances would have drawn that inference.” Id. at 739. 24 Moreover, “although medical negligence is not by itself unconstitutional, the care rendered 25 can be so inadequate to the circumstances known to the medical staff as to amount to 26 deliberate indifference.” Id. at 740. An “inadvertent failure to provide medical care,” 27 however, will not sustain a claim, and an argument that more should have been done to 28 diagnose or treat a condition generally reflects a difference of opinion regarding the proper 1 course of treatment and not deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 2 105, 107 (1976). Furthermore, misdiagnosis alone is not a basis for a claim of deliberate 3 medical indifference. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). 4 With respect to Defendant Fraser’s first evaluation of Benally, Benally reported that 5 he started feeling “poorly” four days earlier and that he felt “dizzy.” Benally’s vital signs 6 were normal. There is no evidence that Defendant Fraser knew anything else about 7 Benally’s symptoms at that time. Plaintiff suggests that Defendant Fraser “knew about [] 8 Benally’s underlying medical conditions and knew he had been complaining of pain and 9 medical issues since April 14,” but that is misleading. (PSOAF ¶ 16.) There is no evidence 10 that Benally visited the medical department or otherwise reported any symptoms to medical 11 staff before April 18; rather, it was not until April 18 that Benally told Defendant Fraser 12 that he began feeling “poorly” on April 14. 13 Plaintiff also repeatedly asserts that Defendant Fraser merely instructed Benally to 14 drink more water, but that also misstates the record. Defendant Fraser noted that Benally 15 reported drinking only four glasses of water per day. A reasonable inference for that note 16 is that Fraser thought Benally’s symptoms might have been caused by dehydration. But 17 there is no evidence in the record that Defendant Fraser dismissed Benally’s symptoms by 18 telling him to “drink more water.” For this purported instruction, Plaintiff cites paragraph 19 89 of her Statement of Additional Facts, which in turn cites Dr. Charash’s report. In his 20 report, Dr. Charash states, “Nurse Fraser instructed Mr. Benally to drink more water, and 21 she left him at 17:10.” (Doc. 149 at 66.) Plaintiff has produced no evidence Defendant 22 Fraser gave that instruction. Accordingly, his opinion that Defendant Fraser’s “advice to 23 drink more water . . . was not in accordance with the standard of care” is not based on the 24 evidence. 25 The evidence demonstrates that Defendant Fraser reasonably attempted to ascertain 26 the cause of Benally’s symptoms. See Sandoval, 985 F.3d at 680. The evidence does not 27 support that any reasonable nurse in Defendant Fraser’s position would have understood, 28 based on Benally’s normal vital signs and his general, non-severe symptoms of feeling 1 “poorly” and “dizzy” that there was a need for emergency medical attention when she first 2 evaluated Benally. See id. (concluding that where inmate was sweating and appeared so 3 tired and disoriented that a deputy urged that he be re-evaluated, every reasonable nurse 4 would have understood that making “essentially no effort to determine” the cause of 5 inmate’s symptoms, failing to attempt to treat the symptoms, leaving the inmate for six 6 hours, and failing to pass any information to the nurses who relieved him was a 7 constitutional violation). 8 Next, when Defendant Fraser reevaluated Benally at the dorm table, his blood 9 pressure was elevated at 148/65, his pulse was 62, and O2 saturation was 92%. After 10 Defendant Fraser encouraged Benally to slow down his breathing, and he was “more calm,” 11 his blood pressure 107/79, and his pulse was 51. Defendant Fraser did not note an O2 12 saturation. Plaintiff contends that between Defendant Fraser’s first and second evaluations, 13 Benally’s heart rate dropped precipitously from a high reading of 121 to 51, as did his O2 14 saturation, from 98% to 92%, his dizziness worsened, and he could not stand, all of which 15 should have signaled to Defendant Fraser that Benally’s life could be at risk and required 16 her to immediately call 911. (PSOAF ¶ 91.) 17 In their Reply, Defendants contend that “Plaintiff is arguing that nurses must 18 immediately diagnose life-threatening conditions based solely on” a patient experiencing 19 fluctuations in vital signs, reports of being “dizzy” and “not feeling well,” and shortness of 20 breath/hyperventilation, which the patient was “able to calm down on his own.” (Doc. 167 21 at 10.) Defendants assert that Plaintiff cannot show “reckless disregard” because it is 22 undisputed that Defendant Fraser “was still in the process of following up on Benally’s 23 care” until Defendant Heath took over for her. (Id.) Defendants argue that a “a correctional 24 healthcare nurse cannot ‘recklessly disregard’ a serious medical need when the nurse is 25 still in the process of trying to diagnose a detainee’s evolving symptoms.” (Id.) Defendants 26 further contend there is no evidence that Defendant Fraser “chose a course of treatment ‘in 27 conscious disregard’ of a life-threatening condition.” (Id. at 11.) 28 The “conscious disregard” standard that Defendants cite no longer applied to pretrial 1 detainees in April 2022, when Benally died. See Gordon v. County of Orange, 6 F.4th 961 2 (9th Cir. 2021) (“At the time of the incident here [2013], it was well settled that prison 3 officials violate the Constitution when they choose a course of treatment that is ‘medically 4 unacceptable under all of the circumstances,’” and in cases involving “choices between 5 alternative courses of treatment,” a plaintiff must show that officials chose a course of 6 treatment “in conscious disregard of an excessive risk to plaintiff’s health”). The relevant 7 standard is objective; a defendant’s lack of awareness that a patient was at substantial risk 8 of suffering serious harm is irrelevant. See Russell, 31 F.4th at 739 (“A defendant can be 9 liable even if he did not actually draw the inference that the plaintiff was at a substantial 10 risk of suffering serious harm, so long as a reasonable official in his circumstances would 11 have drawn that inference.”); Sandoval, 985 F.3d at 669 (concluding that district court 12 erred by applying the subjective deliberate indifference standard to the plaintiff’s 13 Fourteenth Amendment claim). 14 Nevertheless, viewed under the objective standard, the evidence does not support 15 that Defendant Fraser recklessly disregarded a substantial risk of serious harm to Benally. 16 Benally’s symptoms—decreased heart rate and oxygen saturation, worsening dizziness, 17 and inability to stand—were not symptoms that any reasonable nurse in Defendant Fraser’s 18 position would have recognized that his condition required emergency treatment. 19 With respect to Benally’s complaints of chest pain, Plaintiff asserts that when 20 Sergeant O’Brien called the medical unit to the pod at 5:32 p.m., he “told [Defendants] 21 Fraser and Heath about [] Benally’s report of worsening chest pain (meaning it was not a 22 new symptom and was getting worse.” (PSOAF ¶ 46.) This misstates the record. As 23 Defendants argue in their Reply, there is no evidence that anyone told Defendant Fraser 24 that Benally has chest pain until sometime after Defendant Heath assumed responsibility 25 for Benally’s care at approximately 5:36 p.m. (Doc. 167 at 3.) There is no evidence in the 26 record that Defendant Fraser knew Benally had complained of chest pain when she treated 27 him at 5:03 p.m. or at 5:13 p.m. At her deposition, Defendant Fraser testified, “We received 28 a call from Sergeant O’Brien. I don’t remember the exact time. It was later in the shift, 1 maybe around 5:00 that he was requesting an assessment on Mr. Benally. So I went to the 2 pod and provided that assessment.” (Fraser Dep., Doc. 158-1 at 3.) Defendant Fraser 3 testified that Benally was complaining about being dizzy, so she assessed his blood 4 pressure. (Id.) She testified that Benally was lying on his bunk when she arrived in pod, 5 so she assessed his blood pressure while he was lying down, then had him sit on the edge 6 of his bunk and assessed it again, then assessed it while he was standing up “in an attempt 7 to see if he was experiencing hypo static -- or . . . orthostatic hypotension, which can cause 8 dizziness.” (Id.) Defendant Fraser testified that she also assessed Benally’s oxygen level, 9 and his readings were “normal,” but he “appeared to be anxious.” (Id.) 10 In her Declaration, Defendant Fraser avers that Benally “never once complained to 11 [her] about chest pain during either of [her] encounters with him.” (Fraser Decl., Doc. 151- 12 1 at 24 ¶ 22.) Defendant Fraser declares that she did not “interact” with Benally after 5:21 13 p.m., but while she was reporting on him, “someone” called the nursing station. (Id. ¶¶ 19- 14 20.) The evidence Plaintiff cites supports Defendants’ position that Defendant Fraser had 15 no knowledge of Benally’s complaints of chest pain until Sergeant O’Brien called the 16 medical department after Defendant Fraser saw Benally for the second time. 17 Furthermore, Sergeant O’Brien testified at his deposition that he could not recall 18 which nurse he spoke to when he called the medical department at 5:00 p.m. (O’Brien 19 Dep., Doc. 158-7 at 2.) Sergeant O’Brien testified that while he was assisting with passing 20 out dinner trays, he responded to a possible medical emergency and found out that Benally 21 “was having shortness of breath.” (Id.) Sergeant O’Brien testified that he called for 22 nursing staff, and about five minutes later, Defendant Fraser responded with Officer 23 Michaud. (Id.) Sergeant O’Brien testified that Defendant Fraser completed her assessment 24 and left, and a few minutes later, O’Brien “was notified” that Benally was “still under 25 distress.” (Id.) Sergeant O’Brien testified that he “called Fraser back.” (Id.) He testified 26 that approximately 15 minutes after Defendant Fraser left after conducting her second 27 assessment, he was “notified [Benally] was having another – or experiencing – still 28 experiencing distress.” (Id.) Sergeant O’Brien testified that he called again for nursing 1 staff to respond. (Id.) He testified that Defendant Heath responded with a wheelchair, and 2 they moved Benally to medical. (Id.) 3 Finally, Plaintiff cites a portion of a Detective Meyer’s report, which describes the 4 surveillance footage of Benally’s cell. The report states, “At approximately 1732 hours, 5 an inmate walks from [Benally’s] bunk to the door, pushes the emergency button and 6 advises that [Benally] is saying that his chest pains are getting worse.” (Doc. 151-at 63.) 7 The report is not evidence that Defendant Fraser knew Benally complained of worsening 8 chest pain. In short, the available evidence does not support an inference that Defendant 9 Fraser received the report from Sergeant O’Brien that Benally reported chest pain. 10 The evidence does not support a conclusion that Defendant Fraser’s failure to call 11 911 at any point was objectively unreasonable. Considering the facts known to Defendant 12 Fraser at the time, the symptoms Benally reported were neither specific nor severe enough 13 that any reasonable nurse in her position would have recognized that his condition required 14 emergency treatment. See Gardner v. Las Vegas Metro. Police Dep’t, 831 F. App’x 365, 15 366 (9th Cir. 2020) (mem.) (no genuine issue of material fact as to whether a serious 16 medical need was “so apparent as to render the consequences of the defendants’ conduct 17 ‘obvious’” where the decedent “may have shown symptoms of illness before his 18 hospitalization,” but the record did not show that those symptoms were evidence of the 19 cancer from which he suffered). Plaintiff’s argument that Defendant Fraser should have 20 immediately called 911 presupposes that Fraser knew Benally had reported worsening 21 chest pain, which is unsupported by the record, and that Fraser knew or should have known 22 that Benally was suffering from a condition that required emergency treatment. On this 23 record, there is no genuine dispute of material fact regarding whether Defendant Fraser’s 24 conduct was objectively unreasonable. 25 The Court will grant Defendants’ Motion for Summary Judgment as to the § 1983 26 claim against Defendant Fraser. 27 D. Conclusion 28 For the foregoing reasons, the Court will grant Defendants’ Motion for Summary 1 Judgment as to Defendants Fraser and James. 2 VI. Defendants AB Staffing and Heath 3 The remaining claims against the AB Staffing Defendants are the Fourteenth 4 Amendment claim against Defendant Heath, the medical malpractice claim against Heath, 5 the wrongful death claim against AB Staffing and Heath, the survival claim against AB 6 Staffing and Heath, and the intentional infliction of emotional distress claim against Heath. 7 A. Section 1983 Medical Care Claim 8 1. Parties’ Arguments 9 Defendants argue that although Plaintiff is critical of Defendant Heath for her care 10 and treatment of Benally on the night of April 17, 2022 and the night of April 18, 2022, 11 “this criticism amounts to nothing more than a difference of medical opinion.” (Doc. 148 12 at 9.) Defendants also contend that when Defendant Heath arrived at the jail for her shift 13 on April 18, 2022, and escorted Benally to the medical cell, he had already been evaluated 14 “multiple times,” and his vitals were “assessed to be normal.” (Id.) Defendants point out 15 that Benally was able to have a conversation with Defendant Heath on the way to the 16 observation cell and could stand up from the wheelchair upon arrival. (Id.) Defendants 17 argue that Defendant Heath, under the circumstances, believed that Benally was 18 experiencing an anxiety attack; observed that Plaintiff was not diaphoretic, was able to talk, 19 and was able to stand up in the medical cell; and knew that Benally had recently had his 20 vitals checked and re-checked and the vitals were within normal limits. (Id. at 11.) 21 In her Response, Plaintiff asserts that once Benally complained about chest pain, 22 Defendant Heath was required by the standard of care to call 911, and her decision not to 23 was objectively unreasonable. (Doc. 157 at 20.) Plaintiff also contends that failing to 24 intervene to stop Defendant Fraser’s constitutional violation is sufficient to Defendant 25 Heath’s liability. (Id. at 20-21.) 26 2. Discussion 27 a. Intentional Decision 28 The evidence demonstrates that Defendant Heath evaluated Benally in the evening 1 of April 17, 2022; took his vital signs; and encouraged him to rest and to notify medical 2 staff for any status change. The record supports the fact that Defendant Heath made 3 intentional decisions regarding Benally’s medical care. 4 b. Substantial Risk of Serious Harm 5 As discussed, the record supports that Benally had serious medical needs that put 6 him at substantial risk of serious harm. 7 c. Objectively Unreasonable Conduct 8 The next question is whether Defendant Heath’s decisions were “objectively 9 unreasonable.” Plaintiff identifies the following conduct by Defendant Heath that Plaintiff 10 asserts was objectively unreasonable: First, Defendant Heath evaluated Benally on April 11 17, and although he complained of shortness of breath, dizziness, and fainting after he 12 showered, and his heart rate and blood pressure were elevated, Defendant Heath “did 13 nothing.” (PSOAF ¶¶ 17-20.) Second, after Defendant Heath transported Benally to the 14 medical cell, Heath left Benally in the cell and never checked on him. 15 Plaintiff generally conflates Defendants Heath and Fraser’s decisions regarding 16 Benally, but the evidence demonstrates that Defendant Heath first saw Benally shortly in 17 the evening of April 17, when he reported feeling very weak and dizzy. Benally’s blood 18 pressure was 142/106, but he exhibited no signs of distress and no sweating, vomiting, or 19 blurred vision. The evidence does not support that any reasonable nurse in Defendant 20 Fraser’s position would have understood, based on Benally’s normal vital signs; his 21 general, non-severe symptoms of feeling very weak and dizzy; and the absence of signs of 22 distress and more serious symptoms; that there was a need for emergency medical attention 23 when she evaluated Benally. 24 At her deposition, Defendant Heath testified that when she arrived for her night shift 25 on April 18, 2022, the nurses were “busy charting,” so Heath went over to her computer. 26 (Heath Dep., Doc. 158-2 at 2.) Defendant Heath testified, “[T]hen, we got a call from 27 Sergeant O’Brien saying that the patient was having like shortness of breath and so I -- the 28 girl -- they were charting. So I’m like, ‘I’ll go get him.’” (Id. at 3.) Defendant Heath 1 testified that she went down with a wheelchair. (Id.) She testified, “I just -- I’m like, ‘Hey, 2 let’s go up to the medical because it’s closer and we can have closer observation.’” (Id.) 3 Defendant Heath testified she and Sergeant O’Brien took Benally to a medical cell, and 4 that Benally was talking to them. (Id.) She testified that she did not “notice [Benally] 5 being diaphoretic or anything like that, but that was basically what it was. He was having 6 some shortness of breath. But up to that point I had no idea what had happened because I 7 hadn’t received a report yet. . . . Like what interventions had been taking place.” (Id.) 8 Defendant Heath testified that Benally was “able to stand” and said he was “short of breath 9 and he just seemed like he was having some pain at that time.” (Id.) Defendant Heath 10 testified that her understanding of the jail’s policy regarding escalating care for serious 11 symptoms was, “you would bring them to -- the infirmary or like you would call it, like we 12 would bring them to medical and then depending on what the -- what his symptoms were 13 as far as like -- there was different protocols for like chest pain. There was different 14 protocols for shortness of breath.” (Id.) Defendant Heath testified that when she brought 15 Benally to the medical unit, she “came back into medical and [she] let the nurse know [she] 16 ha[d] [the] patient up here.” (Id.) 17 The evidence in the record does not support an inference that Defendant Heath knew 18 Benally reported having chest pain or worsening chest pain; rather, the evidence 19 demonstrates only that at 5:32 p.m., an inmate advised that Benally was saying that his 20 chest pains were getting worse, and Sergeant O’Brien informed somebody in the medical 21 department that Benally was having chest pain. There is no evidence that Defendant Heath 22 received the report that Benally complained of chest pain, or that Sergeant O’Brien 23 informed Heath that Benally had complained of chest pain. 24 Defendant Heath did not interact with Benally again until 5:36 p.m., when she took 25 Benally in a wheelchair to the medical unit. Benally could be heard on surveillance footage 26 with labored breathing and making incoherent noises; it is unclear from the record where 27 Defendant Heath was in relation to Benally’s cell, but there is no evidence that she saw 28 Benally on surveillance or was otherwise aware of his labored breathing or incoherent 1 noises. At 5:41 p.m., Defendant Heath and Sergeant O’Brien left the medical cell. 2 The evidence establishes that when Defendant Heath left Benally in the medical 3 unit, her only personal observations of Benally’s condition were that he was “short of 4 breath” and “seemed like he was having some pain at that time.” Again, Plaintiff’s 5 argument that Defendant Heath should have immediately called 911 is premised on an 6 assumption that Fraser knew Benally had reported worsening chest pain, which is 7 unsupported by the record, and that Heath knew or should have known that Benally was 8 suffering from a condition that required emergency treatment. The evidence does not 9 support that any reasonable nurse in Defendant Heath’s position would have recognized 10 that Benally’s condition required emergency treatment. There is no genuine dispute of 11 material fact upon which a reasonable jury could find that Defendant Heath’s conduct was 12 objectively unreasonable. Accordingly, Plaintiff’s Fourteenth Amendment claim against 13 Defendant Fraser fails. 14 The Court will grant Defendants’ Motion for Summary Judgment as to the § 1983 15 claim against Defendant Fraser. 16 B. Medical Malpractice 17 Under Arizona law, to prove medical malpractice, a plaintiff must prove injury that 18 resulted from the failure of a health care provider to follow the accepted standard of care 19 because “[t]he health care provider failed to exercise that degree of care, skill and learning 20 expected of a reasonable, prudent health care provider in the profession or class to which 21 he belongs within the state acting in the same or similar circumstances” and “such failure 22 was a proximate cause of the injury.” Ariz. Rev. Stat. § 12-563; see also Seisinger v. Siebel, 23 203 P.3d 483, 492 (Ariz. 2009) (en banc) (“In medical malpractice actions, as in all 24 negligence actions, the plaintiff must prove the existence of a duty, a breach of that duty, 25 causation, and damages.”) (citation omitted). The “yardstick by which a physician’s 26 compliance with [his] duty is measured is commonly referred to as the ‘standard of care.’” 27 Smethers v. Campion, 108 P.3d 946, 949 (Ariz. Ct. App. 2005). 28 “[A]s medicine in general and, more specifically, advanced medical techniques 1 involve extensive professional training, in most instances the applicable standard of care, 2 and the probable consequences of failing to meet that standard, are beyond ordinary lay 3 knowledge.” Sampson v. Surgery Center of Peoria, LLC, 491 P.3d 1115, 1118 (Ariz. 4 2021). Accordingly, “[t]he standard of care must be established by expert medical 5 testimony ‘[u]nless malpractice is grossly apparent.’” Id. at 1119 (quoting Rasor v. Nw. 6 Hosp., LLC, 403 P.3d 572, 575 (Ariz. 2017); see also Seisinger, 203 P.3d at 492 (absent 7 expert testimony, plaintiff could not meet the burden of production “except when it was a 8 matter of common knowledge . . . that the injury would not ordinarily have occurred if due 9 care had been exercised”). 10 “A plaintiff must generally prove the elements of his medical malpractice claim by 11 a preponderance of the evidence.” Henke v. Hospital Dev. of W. Phoenix, Inc., 578 P.3d 12 47, 52 (Ariz. 2025) (citation omitted). “The preponderance of the evidence standard 13 requires that the fact-finder determine whether a fact sought to be proved is more probable 14 than not.” Kent K. v. Bobby M., 110 P.3d 1013, 1018 (Ariz. 2005). Thus, “a plaintiff in a 15 medical malpractice action must generally prove that the failure to follow the accepted 16 standard of care more probably than not caused the injury.” Henke, 578 P.3d at 52. 17 Section 12-2604(A) prescribes expert witness qualifications for testimony in a 18 medical malpractice action. A person giving expert testimony on the appropriate standard 19 of practice or care must be licensed as a health professional and, during the year 20 immediately preceding the occurrence giving rise to the lawsuit, must have devoted a 21 majority of the person’s professional time to “[t]he active clinical practice of the same 22 health profession as the defendant.” Ariz. Rev. Stat. § 12-2604(A)(2). The statute also 23 provides that if the defendant is a general practitioner, the expert witness must have devoted 24 a majority of the witness’s professional time in the year preceding the occurrence giving 25 rise to the lawsuit to active clinical practice as a general practitioner. Id. § 12-2604(A)(3). 26 When the testimony is offered against a health care professional employed by the defendant 27 health care institution, subsection A applies “as if the health professional were the party or 28 defendant against whom or on whose behalf the testimony is offered.” Id. § 12-2604(B). 1 Under § 12-2604(A), the qualifications of a standard of care witness are dependent 2 on what “health profession” the defendant practices and whether the defendant is a 3 “specialist” or “general practitioner.” Windhurst v. Arizona Dep’t of Corr., 536 P.3d 764, 4 770 (Ariz. 2023). Defendant Heath is a registered nurse. Nursing qualifies as a “health 5 profession” for purposes of § 12-2604(A)(2). Cornerstone Hosp. of Se. Ariz., L.L.C. v. 6 Marner ex rel. County of Pima, 290 P.3d 460, 472 (Ariz. Ct. App. 2012). “The goal of 7 § 12–2604 is to ‘ensur[e] that experts have qualifications and experience comparable to the 8 [medical professional] whose conduct is at issue.’” Id. (quoting Baker v. Univ. Physicians 9 Healthcare, 296 P.3d 42, 50 (Ariz. 2013)). Accordingly, any expert testifying against a 10 nurse must be a nurse, or someone who spends the “majority” of his time instructing nurses. 11 See St. George v. Plimpton, 384 P.3d 1243, 1245, 1247 (Ariz. Ct. App. 2016). 12 Defendants argue that Plaintiff did not disclose a qualified expert with respect to the 13 standard of care applicable to Defendant Heath because Heath is a nurse, and Plaintiff’s 14 expert, Dr. Charash, is a physician with a board certification in internal medicine and 15 cardiology. (Doc. 148 at 14.) Plaintiff contends Dr. Charash is a qualified expert under 16 the expert witness statute because he is a “general practitioner,” and the statute does not 17 require that a defendant and an expert witness have the same medical license. (Doc. 157 18 at 32.) 19 In his report, Dr. Charash states that he has been in private practice since 2006. 20 (Doc. 149 at 65.) Dr. Charash states that he has practiced internal medicine for 41 years 21 and cardiology for 38 years, and he is the primary care provider for half of the patients in 22 his practice. (Id.) Dr. Charash states that over the course of his career, he has had “daily 23 experience working with nurses both within the hospital as well as within the offices of 24 other health care providers,” and he is “familiar with what, and when, a health care provider 25 expects a nurse to contact them out of a potential concern for a patient’s wellbeing.” (Id.) 26 Dr. Charash is not a nurse and did not spend the majority of his time during the year 27 before the events giving rise to this lawsuit instructing nurses. Dr. Charash is therefore not 28 qualified to testify regarding the standard of care that applies to Defendant Heath. See 1 Cornerstone, 290 P.3d at 472; Trujillo v. United States, CV-16-08205-PCT-DLR, 2018 2 WL 1729345, at *3 (D. Ariz. Apr. 10, 2018) (noting that a physician’s assistant belongs to 3 a different health profession than a physician and concluding that a physician is not 4 qualified to testify as to the appropriate standard of care for a PA). Consequently, Plaintiff 5 has not disclosed a qualified expert witness with respect to the applicable standard of care. 6 Unless negligence is grossly apparent, expert testimony is required as to the 7 applicable standard of care. The parties agree that expert testimony is required here. 8 “When a defendant moves for summary judgment based on a plaintiff’s failure to produce 9 an expert meeting the § 12-2604 qualifications, the plaintiff may file a Rule 56(d) affidavit 10 and corresponding motion for relief.” Rasor, 403 P.3d at 577. “[I]n the absence of 11 proceeding under Rule 56(d), a plaintiff’s failure to provide a qualified standard-of-care 12 expert would justify summary judgment for the defense.” Id. at 578. 13 Here, Defendants moved for summary judgment based on Plaintiff’s failure to 14 produce a qualified expert witness. Plaintiff did not file a Rule 56(d) affidavit and 15 corresponding motion for relief. Plaintiff therefore cannot substitute another expert 16 witness. Accordingly, the Court will grant Defendants’ Motion for Summary Judgment as 17 to Plaintiff’s medical malpractice claim. 18 C. Wrongful Death 19 In Arizona, “[w]hen death of a person is caused by wrongful act, neglect or default, 20 . . . the person who . . . would have been liable if death had not ensued shall be liable to an 21 action for damages.” Ariz. Rev. Stat. § 12-611. A prerequisite for recovery under § 12- 22 611 is the ability of the decedent to have maintained an action if death had not ensued. 23 Summerfield v. Superior Ct. in and for Maricopa County, 698 P.2d 712, 720 (Ariz. 1985). 24 A wrongful death claim is not a continuation of the decedent’s claim; instead, it 25 compensates statutory beneficiaries for their injuries. Barragan v. Super. Ct. of Pima 26 County, 470 P.2d 722, 724 (Ariz. 1970). 27 “Generally, a plaintiff may bring a wrongful death claim as an ‘independent claim 28 for damages sustained by the decedent’s survivors.’” McKee v. State, 388 P.3d 14, 17-18 1 (Ariz. Ct. App. 2016) (quoting Diaz v. Magma Copper Co., 950 P.2d 1165 (Ariz. Ct. App. 2 1997)). “However, the right to bring a wrongful death action exists only if the decedent 3 would have been able to maintain an action for damages if death had not ensued.” Id. at 4 18. The wrongful statute does not provide an independent theory of liability; a wrongful 5 death claim therefore must rest on an underlying tort theory. 6 The Court has already determined that Plaintiff’s medical malpractice claim fails 7 because she failed to submit qualified expert witness testimony. Accordingly, Plaintiff’s 8 wrongful death claim also fails. The Court will therefore grant Defendants’ Motion for 9 Summary Judgment as to Plaintiff’s wrongful death claim in Count Five. 10 D. Survival 11 Plaintiff brings Count Four on behalf of the Estate of Benally, as personal 12 representative of the Estate. (FAC ¶ 101.) Plaintiff alleges that because of Defendants’ 13 wrongful actions, Benally suffered severe injuries, including physical pain, emotional 14 distress, and ultimately death. (Id. ¶ 100.) 15 Arizona’s survival statute provides that “[e]very cause of action,” with certain 16 exceptions that do not apply here, “shall survive the death of the person entitled thereto or 17 liable therefor . . . provided that upon the death of the person injured, damages for pain and 18 suffering of such injured person shall not be allowed.” Ariz. Rev. Stat. § 14-3110. A 19 survival statute claim provides for recovery of damages sustained by the decedent from the 20 time of injury until his death and passes from the decedent to the personal representative, 21 becoming an asset of the estate. See Barragan, 470 P.2d at 724. 22 Because Plaintiff cannot prove her medical malpractice claim, the Estate has no 23 claim under the survival statute. The Court will therefore grant Defendants’ Motion for 24 Summary Judgment as to the survival claim in Count Four. 25 E. Intentional Infliction of Emotional Distress 26 In Count Six, Plaintiff asserts a claim for intentional infliction of emotional distress 27 on her own behalf and on behalf of the Estate. An intentional infliction of emotional 28 distress claim requires proof of (1) extreme and outrageous conduct, (2) intend to cause 1 emotional harm or reckless disregard of a near certainty of causing such harm, and 2 (3) severe emotional distress. Citizen Publ’g Co. v. Miller, 115 P.3d 107, 110 (Ariz. 2005) 3 (citations omitted). An act will qualify as intentional only if “the actor desired to cause the 4 consequences-and not merely the act itself-or if he was certain or substantially certain that 5 the consequences would result from the act.” Mein ex rel. Mein v. Cook, 193 P.3d 790, 6 794 (Ariz. Ct. App. 2008). 7 An action is “extreme and outrageous” if it “falls at the very extreme edge of the 8 spectrum of possible conduct” and goes “beyond all possible bounds of decency, [so as] to 9 be regarded as atrocious[ ] and utterly intolerable in a civilized community.” Watts v. 10 Golden Age Nursing Home, 619 P.2d 1032, 1035 (Ariz. 1980) (citations omitted); see also 11 Restatement (Second) of Torts § 46(1) cmt. d (1965) (“Generally, the case is one in which 12 the recitation of the facts to an average member of the community would arouse his 13 resentment against the actor, and lead him to exclaim, ‘Outrageous!’”). “Conduct may be 14 otherwise tortious, and even illegal, and not be outrageous.” Pankratz v. Willis, P.2d 1182, 15 1192 (Ariz. Ct. App. 1987). The Court determines whether acts are sufficiently extreme 16 and outrageous for relief. Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 183 Ariz. 550, 554 17 (Ariz. Ct. App. 1995). The issue goes to the jury only when reasonable minds could differ 18 in determining whether the conduct was sufficiently extreme or outrageous. Id. 19 “Cases where there has been a sufficient finding of outrageousness contain stark and 20 repulsive facts that strike at very personal matters, such as willful ignorance of rampant 21 sexual harassment, a doctor who hid the reason for an infant’s death from its mother, or 22 conspiracy to hide a child from a father.” Demetrulias v. Wal-Mart Stores Inc., 917 F. 23 Supp. 2d 993, 1012 (D. Ariz. 2013) (internal citations omitted). On this record, no 24 reasonable jury could find that Defendant Heath’s conduct was “extreme” and 25 “outrageous.” See, e.g., Watts, 619 P.2d at 1035 (holding nursing home’s neglect and 26 failure to timely inform wife of husband’s terminal illness was “unjustifiable,” but did not 27 rise to level of “extreme and outrageous” conduct). 28 Plaintiff does not assert that Defendant Heath intentionally killed Benally. Thus, to 1 | prevail on her claim, Plaintiff must show that Defendant Heath was aware of and recklessly disregarded a near certainty that Benally would die, with accompanying severe emotional 3| distress. The evidence does not support such a conclusion. On this record, there is no 4] genuine issue for trial as to Plaintiffs intentional infliction of emotional distress claim. 5 The Court will therefore grant Defendants’ Motion for Summary Judgment as to 6 | Count Six. 7 F. Conclusion 8 For the foregoing reasons, the Court will grant Defendants’ Motion for Summary 9| Judgment as to Defendants AB Staffing, Heath, Lah, and Tate. 10| ITIS ORDERED: 1] (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 12) Motion for Summary Judgment (Doc. 148, 150). 13 (2) The Motions for Summary Judgment (Docs. 148, 150) are granted, and this action is terminated with prejudice. The Clerk of Court must enter judgment accordingly. 15 Dated this 17th day of July, 2026. 16 Micha T. diburde Michael T. Liburdi 19 United States District Judge 20 21 22 23 24 25 26 27 28