THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

MICHAEL J. BROWN, Judge.

¶1 Allen Benkendorf appeals from the judgment entered following a jury verdict in favor of Advanced Cardiac Specialists Chartered ("ACSC"). He asserts the trial court erred when it granted ACSC's motion to exclude certain expert testimony and refused a requested jury instruction. For reasons that follow, we affirm.1

BACKGROUND2

¶2 Benkendorf's wife, Judy, underwent surgery on January 12, 2003, to remove her cancerous left kidney. After the surgery, Judy developed a blood clot and was prescribed Coumadin, an anticoagulant medication that a patient takes orally.

¶3 Accordingly, on January 27, 2003, Judy began regularly visiting ACSC's Coumadin Clinic, where her blood was tested and Coumadin dosage changed if necessary to maintain her therapeutic level. Dr. Maheswar Rao, who worked at ACSC, established Judy's "therapeutic range" at the International Normalized Ratio ("INR") of 2.5 to 3.5, indicating that an appropriate dosage of Coumadin would cause her blood to clot at 2.5 to 3.5 times less than the natural rate. On February 25, 2003, Judy's blood test revealed an INR of 5.9. In response, her Coumadin dosage was ordered withheld for two days and reduced on Saturdays but was otherwise to remain the same.3 Her INR subsequently dipped to below 2.5 before reaching the therapeutic range after further changes were made to her dosage. On Tuesday, June 10, 2003, Judy's INR level was 5.5, and her Coumadin dosage was ordered changed from 5 mg on Sunday and 7.5 mg all other days to 5 mg on Saturday and Sunday and 7.5 mg all other days. She was scheduled for a recheck on June 17, 2003.

¶4 On June 16, 2003, Judy suffered a large intracranial hemorrhage while at home. She was hospitalized in critical care, and died two days later. No autopsy was performed, but her death certificate listed a cause of death of intracranial hemorrhage "due to, or as a consequence of" hypertension. Benkendorf filed a complaint alleging ACSC caused Judy's death by negligently monitoring and adjusting her Coumadin dosages.

¶5 At his deposition, Dr. Rao testified that had he been informed of Judy's high INR level on June 10, 2003, he "probably would have stopped Coumadin for one day." ACSC moved in limine to preclude this testimony, arguing it was duplicative of Benkendorf's other expert standard-of-care and causation testimony and therefore in violation of Arizona Rule of Civil Procedure ("Rule") 26(b)(4)(D). The trial court granted the motion.4

¶6 Near the end of trial, Benkendorf filed a request for supplemental jury instructions, arguing he was entitled to an "unusually susceptible claimant" instruction based on ACSC's expert testimony as to the possible causes of Judy's intracranial hemorrhage. After informing Benkendorf that his request was untimely, the trial court expressed concern as to the applicability of that type of instruction in a wrongful death case. The court later denied Benkendorf's request without further comment.

¶7 The jury returned a general verdict in favor of ACSC. After Benkendorf unsuccessfully moved for a new trial, the court entered judgment. This timely appeal followed.

DISCUSSION

A. Testimony of Dr. Rao

¶8 Benkendorf asserts that the trial court erred when it granted ACSC's motion in limine. More specifically, Benkendorf argues that the trial court should have allowed him to "present [Doctor] Rao's testimony that the medical staff members should have told him on June 10, 2003 that the Coumadin level was excessive—and that he would have probably stopped it." We review a trial court's grant or denial of motions in limine for an abuse of discretion. Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 133, ¶ 33, 180 P.3d 986, 998 (App. 2008).

¶9 Pursuant to Rule 26(b)(4)(D), each side in a medical malpractice action is limited to one "independent expert" on an issue. An independent expert is defined as a "person who will offer opinion evidence who is retained for testimonial purposes and who is not a witness to the facts giving rise to the action." Ariz. R. Civ. P. 26(b) (Committee Comment to 1991 Amendment). An independent expert does not include an employee of a party who testifies about issues within the scope of his employment. See Ariz. Dep't of Revenue v. Superior Court, 189 Ariz. 49, 54, 938 P.2d 98, 103 (App. 1997) (finding an employee not an independent expert when testifying to professional judgment and underlying opinions giving rise to valuation of a copper mine).

¶10 Benkendorf does not challenge the trial court's decision that Dr. Rao's testimony was precluded by the one-expert-per-issue rule. Instead, Benkendorf argues Dr. Rao should have been permitted to testify as a fact witness. Even assuming, however, that Dr. Rao could testify as a fact witness, his testimony would have been irrelevant to the standard of care or breach. To establish breach of duty in a malpractice action, a plaintiff must prove that the defendant has failed to exercise the same degree of skill as similarly situated physicians in the community. Seisinger v. Siebel, 220 Ariz. 85, 94, ¶ 33, 203 P.3d 483, 492 (2009). Dr. Rao's testimony as to what he would have done if he had been notified was irrelevant to duty of care because as a fact witness he could not address whether ACSC fell below the standard of care of medical providers in the community. See id. ("Arizona courts have long held that the standard of care normally must be established by expert medical testimony."); cf. Smethers v. Campion, 210 Ariz. 167, 177, ¶ 32, 108 P.3d 946, 956 (App. 2005) (concluding that an expert's testimony as to what he or she would have done may be admissible to bolster or impeach the credibility of that expert's testimony concerning the standard of care).

¶11 Moreover, Dr. Rao's account of what he would have done if he had been notified would have been irrelevant because Benkendorf did not present any evidence that the standard of care required notification of Dr. Rao. And Benkendorf's expert, Dr. Douglas Ragland, admitted at trial that consulting a nurse practitioner, rather than a doctor, would not breach the standard of care as long as the nurse practitioner followed required guidelines. Finally, even if consultation with a physician was necessary, according to Dr. Rao's testimony, he would not have been consulted because he was not present at the clinic on June 10, 2003.5 Accordingly, the trial court did not abuse its discretion in precluding Dr. Rao's testimony.

B. Eggshell Instruction

¶12 Benkendorf asserts the trial court erred when it denied his request for a jury instruction based on his argument that Judy was unusually susceptible to injury.6 We review a trial court's denial of a requested jury instruction for an abuse of discretion. Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 409, ¶ 21, 207 P.3d 654, 662 (App. 2008). The trial court must give a requested instruction if: (1) the evidence presented supports the instruction, (2) the instruction is legally proper, (3) the instruction pertains to an important issue, and (4) the instruction's gist is not given in other instructions. DeMontiney v. Desert Manor Convalescent Ctr., 144 Ariz. 6, 10, 695 P.2d 255, 259 (1985).

¶13 We conclude that Benkendorf's requested instruction was not legally proper. Although Benkendorf argues he was entitled to have the jury instructed about Judy's unusual susceptibility as a causation principle, his requested instruction relates only to damages. Supra, n.6. And, Benkendorf does not challenge the sufficiency of the causation instruction the court gave to the jury.

¶14 Additionally, this lawsuit stems from the heir's claim for wrongful death, not the decedent's claim for injuries caused by ACSC's alleged negligence. "In an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover . . . ." Ariz. Rev. Stat. ("A.R.S.") § 12-613 (2003) (emphasis added). Thus, the jury may award damages for injuries suffered by the surviving parties—the injuries to the deceased are irrelevant to the determination of damages.7 See id. ("injuries resulting from the death") (emphasis added); Sedillo v. City of Flagstaff, 153 Ariz. 478, 481-82, 737 P.2d 1377, 1380-81 (App. 1987) (allowable items of injury under the statute are loss of love, affection, companionship, consortium, personal anguish, and suffering). Consistent with A.R.S. § 12-613, the trial court properly instructed the jury on the type of damages recoverable by Benkendorf:

¶15 Accordingly, because the injuries suffered by Judy were irrelevant to a determination of damages, the trial court did not abuse its discretion when it denied Benkendorf's request for the eggshell instruction.8

CONCLUSION

¶16 For the foregoing reasons, and those discussed in the opinion filed herewith, we affirm the judgment.

DIANE M. JOHNSEN, Presiding Judge, JOHN C. GEMMILL, Judge, concurring.