GILL v. CURLETTA VALLEY PAIN TREATMENT CENTER (2009)

MEMORANDUM DECISION

¶ 1 Plaintiff/Appellant Ronald Gill (“Gill”) appeals from the superior court's summary judgment for Defendants/Appellees Joseph D. Curletta, M.D., (“Dr.Curletta”) and the Valley Pain Treatment Center, L.L.C. (“VPTC”) on his medical malpractice claim in the death of his wife Carol (“Carol”). The court found that, assuming that Dr. Curletta had breached the standard of care, Gill provided insufficient medical expert testimony of a causal relationship between the negligence and the injury. Gill contends that expert testimony that Dr. Curletta's negligence “possibly” contributed to Carol's death was sufficient to withstand summary judgment when combined with other offered evidence. For the following reasons, we agree with Gill. Accordingly, we reverse and remand for further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 In January 1996, Carol began seeing Dr. Curletta, a pain management specialist, for chronic pain. Dr. Curletta prescribed pain medications to her as part of her treatment.

¶ 3 On April 14, 1999, Dr. Curletta saw Carol and discussed with her the fact that he was close to the limit of what he felt comfortable prescribing for oral medications. He modified her medications and recommended she consider an intrathecal pump so she could get more effective pain relief with a combination of medications while avoiding the side effects. He said he wanted to see her again in three months, but she did not keep her July 7, 1999 appointment.

¶ 4 Dr. Curletta next saw Carol on December 1, 1999, when Dr. Curletta noted that her symptoms were worsening. In addition to pain, she now experienced extreme swelling in her lower extremities. He recommended a psychological evaluation and wanted to see her again in three to four months. Carol did not keep her August 4, 2000, appointment, and Dr. Curletta next saw her on September 6, 2000. At that time, Carol's medications included Oxycontin 160 mg every 12 hours, Oxy IR 15 mg every six hours, Atenolol, Clonidine, Flexeril, and Tranxene. Dr. Curletta noted that Carol's condition had deteriorated. She had gained a considerable amount of weight, was having pain and stiffness in her joints, and sensory changes in her lower extremities. He continued her on the same medications. Carol was to return to see Dr. Curletta in four months. He did not see her again. During the time Dr. Curletta was treating Carol, he allowed her prescriptions to be refilled even though she did not keep appointments.

¶ 5 On February 22, 2001, about 3:00 p.m., Gill found Carol lying on the floor. An emergency response team from the Tempe Fire Department was dispatched at 6:45 p.m. and found Carol still on the floor. She reported that she had been there since noon. She complained of left upper side pain and difficulty breathing. She had a left facial droop, difficulty speaking, and abrasions on her left cheek, neck, and shoulder. She was transported to Tempe St. Luke's Hospital, where she was found to be in moderate to severe respiratory distress that required intubation. She was admitted to the intensive care unit with respiratory failure, pneumonia, rhabdomyolysis¹ , upper extremity paresis, and to rule out cerebral vascular accident.

¶ 6 On March 26, 2001, Carol had an episode of respiratory distress at the hospital, which required her to be intubated. She was intubated after several failed attempts. She continued to have respiratory difficulty, and at 1:38 p.m., a code was called. Carol was resuscitated, but suffered a brain injury. She died on March 29, 2001.

¶ 7 On March 28, 2003, Gill, as Carol's surviving spouse and on behalf of her surviving statutory beneficiaries, filed a medical malpractice and wrongful death claim against Dr. Curletta, VPTC, Tempe St. Luke's Hospital, and others. The basis of Gill's claim against Dr. Curletta and VPTC was that Dr. Curletta had prescribed narcotic medications and allowed refills of those medications, although he did not see Carol at appropriate intervals, and that he had failed to reevaluate her condition or consider alternative treatments. Gill claimed that Dr. Curletta's negligence contributed to Carol's need to be hospitalized, which resulted in her death.

¶ 8 Gill's standard of care and causation expert against Dr. Curletta was Dr. Srdjan Nedeljkovic. When asked at his deposition if he had an opinion as to the cause of Carol's death, Dr. Nedeljkovic responded, “No, not really.” However, during that deposition, Dr. Nedeljkovic also testified that Carol's having fallen and being on the floor was due to multiple factors. First, she could have fallen after experiencing a minor stroke (“TIA”) or other neurological event. Second, given that her blood sugar was extremely high (over 900) on admission to the hospital, she could have had a hyperglycemic event causing her to fall. Third, Dr. Nedeljkovic opined that renal failure, which related to the rhabdomyolysis, was a possible cause of the fall. Finally, he testified it was “possible that her medications may have also caused her to become momentarily dizzy or sedated to the point where she might have incurred a fall or that might have been a cause of her being found down.” Included in those medications as a possible cause were the OxyContin and Oxy IR prescribed by Dr. Curletta. Dr. Nedeljkovic testified that a combination of the factors could have caused her to fall or be found down. As for which of the possibilities were more likely to be the cause of Carol's being found on the floor, Dr. Nedeljkovic stated:

I really think it could have been any of those or a combination of them so I don't really have any way to know and I don't have an opinion as to which was more likely than another or whether it was a combination of one or more of them together that resulted in her being found down.

Dr. Nedeljkovic noted that Dr. Curletta's medical records showed no indication that Carol had previously experienced any falls.

¶ 9 In October 2006, Dr. Curletta filed a motion for summary judgment. Dr. Curletta argued that, even assuming that he had breached the standard of care, Gill could not show that any of Dr. Curletta's alleged failures caused or contributed to Carol's death.

¶ 10 Dr. Curletta argued that Gill's standard of care and causation expert, Dr. Nedeljkovic, expressed no opinion as to the cause of Carol's death. Dr. Curletta further argued that a second expert, emergency medicine physician Dr. James Leo, with respect to Dr. Curletta's treatment, had stated only that “the patient's use of narcotic medication was possibly a contributing factor in her collapse and inability to arise from the floor for at least three hours on the date of admission in this hospitalization․” Dr. Curletta argued that Drs. Leo's and Nedeljkovic's testimony, that Dr. Curletta's treatment was a possible contributing cause, was insufficient to show the necessary causal connection between his treatment and Carol's injury and could support only impermissible speculation by a jury.

¶ 11 In response to the motion for summary judgment, Gill relied upon several pieces of evidence to argue that a jury question on causation was presented. First, he argued that Dr. Nedeljkovic had offered a causation opinion, specifically that the reason Carol was unable to rise after falling on February 22 was most likely multi-factorial and included her medications. Second, he pointed out that Dr. Leo opined that Carol's narcotic use prior to her hospitalization contributed to the need to intubate her upon her arrival in the emergency room the day she was brought to the hospital. Third, Gill relied upon the testimony of Dr. Steven Fugaro, Tempe St. Luke's causation expert, who testified that Carol's chances of survival while hospitalized were significantly reduced by her pre-hospitalization medical problems, including her ongoing chronic pain and being on narcotics. Fourth, Gill attached an affidavit from Carol's son Jeffrey Gill (“Jeffrey”), who described his mother's condition from 1999 to 2000 as worsening and that he believed this was because of the pain medication. He also avowed that she seemed to have balance problems and would fall down. More specifically, he avowed that from 1999 through 2000, his mother had a reduced sense of balance and would fall, that on December 24, 2000 she had taken the pain medications and fallen, that months prior to her death she had problems standing up and that while there had been some improvement in February 2001, on February 22, she appeared as she had on many occasions after taking pain medications, so he believed she had taken pain medications causing her to fall. Fifth, Gill attached excerpts from the Physicians' Desk Reference which indicated that a side effect of Oxycontin was dizziness and respiratory problems.

¶ 12 Gill argued that the medical evidence showed the possibility of a causal relationship between Dr. Curletta's treatment and Carol's injury, and that this evidence combined with other circumstantial evidence was legally sufficient to support a finding of causation.

¶ 13 In reply, Dr. Curletta objected to use of the PDR on grounds of hearsay and lack of foundation. He also objected to Jeffrey's affidavit on the grounds that Jeffrey was not qualified to render an opinion as to the cause of any impairment Carol had and that the affidavit contradicted his earlier deposition testimony, including that she did not normally fall and that her condition might have been related to stress from Carol's daughter being critically ill while Carol was suffering some of the symptoms allegedly related to the drug regimen. While Dr. Curletta pointed out that Dr. Leo had only testified that the medications Dr. Curletta prescribed to Carol possibly contributed to her fall. Attached to his motion for summary judgment was an excerpt of a deposition of Dr. Leo in which Dr. Leo stated that the drug use contributed to Carol's need for intubation at the hospital.

¶ 14 Gill filed two supplemental responses to Dr. Curletta's motion for summary judgment. In the first supplemental response, Gill attached medical records that discounted or reduced the possibility that Carol's fall was related to the factors identified by Dr. Nedeljkovic, other than the drugs: (1) An examination of Carol at the hospital two days after the incident reflecting a “[g]rossly negative limited noncontrast cranial CT scan”; (2) A supplemental disclosure statement from Dr. Curletta indicating that a Dr. Cooper would testify that any rhabdomyolsis “more than likely occurred during the several hours that Ms. Gill laid on the floor”; and (3) A laboratory report from Tempe St. Luke's Hospital showing on her admission to the hospital, Carol's glucose levels were only slightly elevated at 135 (normal being between 65 and 110) and that her level of 916 only occurred the next day. Attached to the second supplemental response was a new affidavit from Dr. Nedeljkovic, in which he stated that although he had testified that Carol's fall, recumbency, and somnolence on February 22, 2001 was multi-factorial, his review of her medical records ruled out rhabdomyolysis, abnormal glucose, or a stroke. He asserted that “Carol Gill's fall, recumbency and somnolence on February 22, 2001 at her home, was caused, at least in part, by her high doses of narcotic pain medication.”

¶ 15 Dr. Curletta moved to strike the new affidavit on the grounds that it was untimely and contradicted Dr. Nedeljkovic's prior deposition.

¶ 16 The superior court granted Dr. Curletta's motion to strike the new affidavit. The court found that it was untimely and offered an opinion markedly different than that expressed in Dr. Nedeljkovic's prior testimony or any prior disclosure. The court also granted Dr. Curletta's motion for summary judgment. In reaching its decision, the court assumed that Dr. Curletta fell below the standard of care by failing to monitor Carol's progress and condition and by failing to consider treatment alternatives. The court rejected Gill's argument that, in this case, causation did not need to be proved by expert medical testimony. Gill's argument was that Dr. Curletta's substandard care was a proximate causation of Carol's injury as established by expert testimony that Dr. Curletta's actions possibly caused Carol's injury along with other evidence or circumstances indicating a causal connection. The court found that no testimony had been presented indicating that Carol had a history of falls or similar incidents during her treatment with the medications prescribed by Dr. Curletta, or that Dr. Curletta was aware of such a problem that would contraindicate use of the medications. The court therefore found that the lesser standard did not apply. The court concluded that the testimony of Dr. Nedeljkovic and Dr. Leo, that Carol's narcotic drug use could possibly have been a cause of her fall, was not evidence sufficient to withstand summary judgment because it invited speculation. In ruling, the court did not address the PDR references or Jeffrey's affidavit, nor Dr. Curletta's objections thereto.

¶ 17 After the other defendants in the case settled, the court entered judgment in favor of Dr. Curletta. Gill timely appealed.² We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(B)(2003).

DISCUSSION

¶ 18 Summary judgment may be granted when “there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c). In reviewing a motion for summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law. Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4, 7 P.3d 136, 139 (App.2000). We view the facts and the inferences to be drawn from those facts in the light most favorable to the party against whom judgment was entered. Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App.1996).

¶ 19 Several general principles guide us in reviewing the sufficiency of evidence for summary judgment in a medical malpractice action. First, a plaintiff must show that the health care provider failed to exercise that degree of care, skill, or learning expected of a reasonable and prudent health care provider within the state acting in the same or similar circumstances and that such failure was a proximate cause of the injury. A.R.S. § 12-563 (2003). To demonstrate proximate cause, the plaintiff must show “a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred.” Barrett v. Harris, 207 Ariz. 374, 378, ¶ 11, 86 P.3d 954, 958 (App.2004). Liability can also be incurred if the malpractice was a factor that reduced a patient's chance of survival or, conversely, increased the risk of harm. Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 607-08, 688 P.2d 605, 615-16 (1984).

¶ 20 Second, a plaintiff must prove the “causal connection between an act or omission ․ through expert medical testimony, unless the connection is readily apparent to the trier of fact.” Barrett, 207 Ariz. at 378, ¶ 12, 86 P.3d at 958. Ordinarily, medical testimony means testimony by a physician. Rodriguez v. Jackson, 118 Ariz. 13, 17, 574 P.2d 481, 485 (App .1977) (citation omitted). We have held, however, that someone other than a medical doctor may testify as to causation provided the witness has the necessary expertise to do so. Id.

¶ 21 Third, a plaintiff must show “at least a probability (as opposed to a possibility) that the operation or the treatment in connection therewith was improper.” Harris v. Campbell, 2 Ariz.App. 351, 354, 409 P.2d 67, 70 (1965). However, if there is “medical evidence of the possibility of the existence of the causal relationship together with other evidence or circumstances indicating such a relationship, the finding that the accident caused the injury will be sustained.” Montague v. Deagle, 11 Ariz.App. 106, 108, 462 P.2d 403, 405 (1969) (citation omitted). Accord Kreisman v. Thomas, 12 Ariz.App. 215, 218, 469 P.2d 107, 110 (1970). Moreover, probability need not be established by any magic words uttered by a witness. In re M.H. 2007-001236, 220 Ariz. 160, 169-70, ¶ 30, 204 P.3d 418, 427-28 (App.2008) (quoting Saide v. Stanton, 135 Ariz. 76, 78, 659 P.2d 35, 37 (1983)). Rather, once a court decides there is sufficient evidence of causation to get to a jury, “the trier of fact is allowed to determine probability or lack thereof if the evidence, taken as a whole, is sufficient to warrant such a conclusion.” Id. at 169-70, ¶ 30, 204 P.3d at 427-28 (quoting Saide, 135 Ariz. at 78, 659 P.2d at 37).

¶ 22 Gill argues that Dr. Curletta's negligent conduct of prescribing strong pain medication, allowing refills, and failing to monitor Carol and modify her medication caused and contributed to Carol's collapse on February 22, requiring her hospitalization, which resulted in her death. He contends that under Montague, he presented sufficient evidence to withstand summary judgment by presenting expert testimony that the drug regimen could possibly have caused her to fall, in conjunction with other evidence he claims shows a causal connection between her use of medication and her collapse.³

¶ 23 We hold that Gill presented sufficient evidence to create a fact issue for a jury on proximate causation between Dr. Curletta's conduct and Carol's fall and ultimate death. We reach this conclusion under Montague and the other general principles stated above.

¶ 24 In Montague, the plaintiff suffered head injuries in an automobile accident. 11 Ariz.App. at 108, 462 P.2d at 405. While in the hospital after the accident, she experienced dizziness. Id. She had had prior episodes of dizziness, but not within the four years immediately preceding the accident. Her doctor indicated that the accident could have caused her existing symptoms. Id. at 109, 462 P.2d at 406. The defendants contended that plaintiff had not shown a causal connection between the dizziness and the accident. Id. at 108, 462 P.2d at 405. We noted the general rule that medical testimony that an accident “possibly” had a causal relationship to a condition was insufficient to support a finding that the accident caused the condition, but that “if there is medical evidence of the possibility of the existence of the causal relationship together with other evidence or circumstances indicating such a relationship, the finding that the accident caused the injury will be sustained.” Id. at 108, 462 P.2d at 405. We held that the doctor's testimony plus the evidence that the plaintiff suffered head injuries, that she had had no symptoms of dizziness in the four years immediately preceding the accident, and that the dizziness had recurred immediately after the accident was sufficient to show a causal connection between the accident and the dizziness. Id. at 109, 462 P.2d at 406.

¶ 25 Montague applies here even though it involves an accident, and not medical malpractice, because it deals with whether evidence is sufficient to show a causal connection between a doctor's negligence and a plaintiff's injury. Here, we have very specific expert and other evidence that makes the “possibility” of proximate causation based on Drs. Nedeljkovic's and Leo's testimony on causation sufficient to be a probable cause of Carol's fall and ultimate death.

¶ 26 In his deposition, Dr. Nedeljkovic opined that Carol's recumbency on February 22, 2001 was “most likely” multi-factorial and included the following issues: (1) endocrine; (2) renal; (3) potential cerebral vascular; and (4) improper use of medications, including the drugs prescribed by Dr. Curletta. However, he could not state whether any one or a combination of those factors caused the fall. Taking that statement in the light most favorable to Gill, we understand that Dr. Nedeljkovic was testifying that the probable cause of Carol's fall was limited to one or more of those factors. In addition, Dr. Leo testified that the drugs Carol was taking possibly contributed to her fall on the date she had to be hospitalized. While all of the above testimony by itself does not rise to the level of the drug regimen being a probable causative factor for the fall, the supplemental facts in the record do by eliminating or reducing those factors other than the narcotics prescribed by Dr. Curletta.⁴

¶ 27 First, the summary judgment record reflects that any endocrine issues most likely happened after Carol's hospitalization. For example, the first glucose level drawn after Carol was hospitalized on February 22 at 1950 hours was 135, which is slightly above the normal range. Although during his deposition, Dr. Nedeljkovic referred to Carol's glucose level in the range of 900 at the time of admission, this sample was not drawn until February 23, the day after Carol's hospitalization. Thus, these medical records submitted by Gill eliminate, for summary judgment purposes, the possibility that endocrine issues caused Carol's collapse, hospitalization, and death.

¶ 28 Second, Gill produced a disclosure statement from Dr. Curletta that stated defense expert Randy Cooper, M.D., would testify that the rhabdomyolysis Carol suffered from caused her renal failure, and contributed to her ultimate demise and that the rhabdomyolysis more than likely occurred during the several hours Carol laid on the floor.⁵ This was confirmed by testimony from the hospital's expert that the medical probability of the cause of Carol's rhabdomyolysis “was her being down for an extended period of time․” Consequently, for purposes of summary judgment, the rhabdomyolysis did not predate Carol's fall and could not have caused her collapse.

¶ 29 Third, Gill produced evidence that Carol did not suffer from potential cerebral vascular issues. The cranial CT scan performed on February 24 shows the impression was a “[g]rossly negative limited non[-]contrast cranial CT scan.” Therefore, this scan rules out any cerebral vascular accident.

¶ 30 In addition to the above, the record has other evidence that, in conjunction with the medical evidence, makes proximate causation a jury question. Jeffrey's affidavit stated that he had seen his mother fall and be unsteady on her feet after taking the pain medication. He also averred that on the day of her hospitalization, when he saw her on the floor of her house, she presented as she had before when she was on the pain medication. Disregarding any opinion testimony in the affidavit that Dr. Curletta's drug regimen caused Carol to have episodes of falling, Jeffrey's affidavit still shows that when Carol took that regimen, she had a tendency to fall. This creates a jury question whether the drug regimen contributed to her fall, recumbency, hospitalization and death.

¶ 31 On appeal, Gill argues that because the superior court did not reference that affidavit in its minute entry granting summary judgment, it must have overlooked it when it found there was no evidence of a history of falls. Dr. Curletta argues the court must have agreed with its argument that the affidavit contradicted Jeffrey's deposition testimony. Dr. Curletta thus argues that the affidavit was a sham and should not be considered on summary judgment.

¶ 32 Obviously, if the superior court overlooked the affidavit, it should not have granted summary judgment because the medical testimony, in conjunction with Jeffery's affidavit, created a jury question of whether there was a connection with the February 22 fall and recumbency and Dr. Curletta's drug regimen.

¶ 33 Alternatively, to the extent the court disregarded the affidavit as a “sham,” it should not have done so; there was no direct contradiction between Jeffrey's affidavit and his deposition testimony. In his testimony, Jeffrey stated that his mother was impaired over Christmas 2000 because she just laid in bed, but by mid- to late-February, 2001, he had reports that she was walking and this made him think she was getting better. While he did state in his deposition that she did not usually fall, the statement must be read in context:

Q: You mentioned that you went and saw Dr. Curletta after your mom had been taken to the hospital to the emergency room, why did you do that? ․

A. One, because his office was right down there. Two, my dad said my mom had fallen. She doesn't usually fall and we had some concerns about the medications ․ And I assumed at the time that my mother had fallen because she was on medications.

Q. Why did you assume that?

A. Like I stated, she doesn't usually just fall.

Q. Okay. I mean, was there anything else to indicate to you that your mom had fallen as a result of medications other than she took a fall?

A. Well, also that she was taking medication. I knew she was taking narcotic medication.

Q. Do you know if she had taken any medication that day?

A. No, I do not.

¶ 34 Jeffrey's affidavit expands on what he observed about his Mother when she was on the narcotics medication. Thus, he averred that in late 1999 and through 2000, he noticed his mother's health declining and he was concerned she was addicted to the narcotic medications, but did not mention any falling. He then continued and stated, “When I would visit my Mother ․ [s]everal times, I would assist my Mother getting up and she would have a significantly reduced sense of balance. She would either fall or I would have to hold her up. As she continued taking additional pain medications, these symptoms and debilities became worse.” (Emphasis added). On Christmas Eve of 2000, he was told by his father that his mother had taken some pain medications and when he tried to help her get out of bed, “she could not stand and fell down when she walked.” During the following months, he averred that his mother was doing better, but sometimes she would fall, but then “she had become more proactive and seemed a little more positive.” On February 22, his father had called and said his mother had fallen and “[g]iven that she presented as she did on many previous occasions after taking pain medications, I believed she had taken pain medications causing her to fall․”.

¶ 35 Affidavits attempting to create a factual dispute are disregarded on summary judgment when they contradict prior admissible evidence from the affiant. Wright v. Hills, 161 Ariz. 583, 587-88, 780 P.2d 416, 420-21 (App.1989) (overruled on other grounds as stated in James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing & Fire Prot., 177 Ariz. 316, 319, 868 P.2d 329, 332 (App.1993). Thus, in Wright, in opposing the summary judgment, the party claimed that he was never told a sale of property was to take place while in his prior deposition, he testified that he had been told the property would be sold. Id. at 585-86, 780 P.2d at 418-19. The court held that the affidavit contradicted the prior deposition testimony and absent any statements the affiant was confused at the deposition or lacked access to material facts, the affidavit should not be considered. Id. at 588, 780 P.2d at 421.

¶ 36 However, the “sham affidavit” principle is not to be broadly applied. As stated in Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.), only transparent sham affidavits should be disregarded as opposed to discrepancies which may only affect credibility, and which affidavits should be considered on summary judgment. As the court explained:

A definite distinction must be made between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence. “An opposing party's affidavit should be considered although it differs from or varies [from] his evidence as given by deposition or another affidavit and the two in conjunction may disclose an issue of credibility.” 6 Moore's Federal Practice ¶ 56.15[4] (2d ed.1985) (footnote omitted).

The purpose of summary judgment is to separate real, genuine issues from those which are formal or pretended. To allow every failure of memory or variation in a witness's testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the witness (in this case, the affiant) was stating the truth. Variations in a witness's testimony and any failure of memory throughout the course of discovery create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all. Issues concerning the credibility of witnesses and weight of the evidence are questions of fact which require resolution by the trier of fact. An affidavit may only be disregarded as a sham “when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact ․ [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Van T. Junkins at 657.

(Emphasis added); see also MacLean v. State Dep't of Educ., 195 Ariz. 235, 241, ¶¶ 20-21, 986 P.2d 903, 909 (App.1999) (sham affidavit rule does not apply when affidavit does not clearly conflict with prior deposition testimony). In construing the “sham affidavit” doctrine, we look to and give great weight to federal interpretations of the rules of civil procedure. Wright, 161 Ariz. at 588, 780 P.2d at 421.

¶ 37 Unlike the sham affidavit in Wright, we do not see a direct contradiction between the testimony and the affidavit here. Jeffrey's deposition testimony can be fairly read to say that his mother normally would not “just fall,” without any reason so that when she did fall on February 22, Jeffrey was concerned about the narcotics causing the fall. His affidavit expands on that point, indicating that falling seemed to coincide when he thought she was on the narcotic medications, that she improved in late February and then fell on February 22 and presented herself at that time as she had in the past when on such medication. At worst, any variations between the affidavit and the deposition testimony are issues which should go to Jeffrey's credibility by the finder of fact at a trial.

¶ 38 When this evidence is considered in light of Drs. Leo's and Nedeljkovic's testimony, a jury could conclude that the drug regimen Carol was on as prescribed by Dr. Curletta contributed to her fall on February 21 and her hospitalization and death.

CONCLUSION

¶ 39 For the foregoing reasons, we reverse the superior court's summary judgment for Dr. Curletta, and we remand this matter for further proceedings consistent with this decision. Upon timely compliance with Arizona Rule of Civil Appellate Procedure 21, we will award Gill his taxable costs on appeal.

FOOTNOTES

1.  “Rhabdomyolysis” is “a medical disorder that harms the kidneys. The disease results from the toxicity of destroyed muscle cells.” Rhabdomyolysis Kidney Failure and Damage, http://www.rhabdomyolysis.org/ (last visited Aug. 20, 2009).

2.  After judgment was entered, Dr. Curletta filed an Arizona Rule of Civil Procedure 60(a) motion to correct the amount of costs awarded in the judgment, after which Gill filed his notice of appeal. The appeal was suspended to allow the trial court to enter an amended judgment correcting the amount of costs. The order directed that an amended notice of appeal would have to be filed to appeal from that order. The parties indicated that the trial court entered an amended order on October 11, 2007. While the record does not contain an amended notice of appeal, this does not affect our jurisdiction because Gill is not appealing from the cost award in any such amended judgment.

3.  In the superior court, Gill also argued that there was sufficient evidence that Dr. Curletta's alleged negligence was a contributing factor to the complications Carol had in the hospital. We do not read Gill's appellate briefs as making that argument. Accordingly, we do not address any issue other than whether there was sufficient evidence to show that alleged negligence was a proximate cause of Carol's fall and her inability to stand up after the fall.

4.  We consider Gill's first supplemental response to Dr. Curletta's motion for summary judgment because the superior court ordered the response and did not strike it. Gill's response was ordered to include evidence showing that the amount of narcotics in Carol's system was inappropriate and deviated from the standard of care consistent with Dr. Curletta's failure to adequately monitor Carol's progress. We do not, however, consider Dr. Nedeljkovic's affidavit in Gill's second response because the court struck it for containing an opinion that was markedly different than its prior sworn testimony. Gill does not appeal from the strike order. However, on remand, the court is free to revisit the admissibility of Dr. Nedeljkovic's supplemental opinion since it is based on evidence in the record that eliminated or reduced the other possible factors related to Carol's fall, hospitalization, and death. Consideration of that evidence on remand would not constitute unfair surprise. Zimmerman v. Shakman, 204 Ariz. 231, 236, ¶ 17, 62 P.3d 976, 981 (App.2003).

5.  Dr. Cooper opined that when skeletal muscle is damaged, myoglobin, an oxygen-binding protein pigment, is released into the bloodstream. Myoglobin breaks down into potentially toxic compounds, which also causes kidney failure. Necrotic (dead tissue) skeletal muscle may cause massive fluid shifts from the bloodstream into the muscle and reduce the relative fluid volume of the body leading to shock and reduced blood flow to the kidneys. Myoglobin may occlude the kidney structures causing damage such as acute tublar necrosis or kidney failure. Acute tublar necrosis is either caused by ischemia of the kidneys (lack of oxygen to the tissues) or by exposure to materials, such as myoglobin, which are poisonous to the kidneys. Once the myoglobin occludes the kidney structures, the structures become destroyed.

KESSLER, Judge.

CONCURRING: PATRICIA K. NORRIS, Presiding Judge and MAURICE PORTLEY 6, Judge.