Arizona Court of Appeals Division Two Holds That Defendants Have the Burden to Apportion Damages Among Themselves When the Plaintiff Proves That Each Contributed to the Final Injury.

Louis Salica went to Tucson Heart Hospital’s (“THH”) emergency room in the early morning of September 26, 2005, and was admitted to the hospital later that day.  Over the next two days, Salica’s condition deteriorated, and on the morning of September 28, an internist ordered Salica to the ICU.  Salica had cardiothoracic surgery later that day and ultimately died from complications and infections that resulted from the surgery.

Salica’s widow sued THH and others for wrongful death, and a jury determined that THH was 60% at fault and responsible for $600,000 in damages.  THH filed a motion for judgment as a matter of law, which the trial court denied.  THH appealed this ruling arguing that there was insufficient evidence that its negligence caused Salica’s death.  The Court of Appeals affirmed.

The Court recounted the course of events in detail, including a nurse’s failure to report Salica’s deteriorating condition to a physician during her shift from 9 p.m. on September 26 to 6 a.m. on September 27.  Experts testified that this fell below the standard of care and that the standard of care for a doctor who received a report of Salica’s condition would have required action that was not taken, meaningfully decreasing Salica’s chance of survival.

THH claimed there was insufficient proof that the nurse’s actions proximately caused Salica’s death.  The Court noted that, in cases like this in which multiple tortfeasors are alleged to have caused a single indivisible injury, the test for determining causation is whether the defendant’s actions were a “substantial factor” in producing the injury.  Under this test, which Arizona adopted from the Restatement (Second) of Torts, the alleged tortfeasors have the burden of apportioning damages among themselves.  Rejecting THH’s argument that the plaintiff was required to show that the nurse’s actions were a “but-for” cause of the injury, the Court found sufficient evidence from which a jury could conclude that the nurse’s actions were a substantial factor in Salica’s death.

The Court also rejected THH’s argument that the “existence of multiple defendants has no impact on the plaintiff’s burden of proof.”  Although Arizona has abrogated joint and several liabilities, the Supreme Court in Piner v. Superior Court, 192 Ariz. 182, 962 P.2d 909 (1998), later noted that causation and apportionment of fault remain interrelated, and when a plaintiff can show that multiple defendants “contributed to the final result,” the burden on the plaintiff to prove causation is relaxed and the burden is on the defendants to apportion fault.

PRACTICE NOTE:  THH argued that the plaintiff had not presented sufficient evidence of causation because the on-call cardiologist had not testified that he would have initiated the necessary treatment had he received a report from the nurse.  The Court rejected this argument, saying that expert testimony may establish both breach of standard of care and causation.

Judge Eckerstrom authored the opinion; Judges Brammer and Vásquez concurred.