Henke v. Hospital Development of West Phoenix, No. CV-24-0259-PR.

Arizona Supreme Court

October 22, 2025

JSH Attorney:  Rita Bustos

SUMMARY: The Arizona Supreme Court held that expert testimony using “likely” or “more likely than not” language satisfies the causation element in emergency department malpractice cases, and that the clear and convincing evidence standard under A.R.S. § 12-572 is a standard of proof—not a separate element—to be evaluated by considering all relevant, admissible evidence, not just expert testimony.

Greg Henke visited an urgent care facility with fever, headache, and chills.  The urgent care physician, concerned about bacterial endocarditis given Henke’s history of aortic valve replacement, referred him to Abrazo West Campus’s emergency department with a note and phone call about his suspected condition.  At the ED, Dr. Morium Chowdhury examined Henke, reviewed the urgent care note, but diagnosed him with “viral syndrome” and discharged him without performing tests to rule out endocarditis.  Five days later, Henke died from complications of bacterial endocarditis.

The plaintiff’s experts opined that the failure to properly evaluate Henke for endocarditis “likely deprived him of a chance of survival” and that “more likely than not, he would have survived” if properly treated.  Defendants moved for summary judgment, arguing these opinions failed to establish causation by clear and convincing evidence because the experts did not testify to a “high degree of medical probability.”  The trial court and Court of Appeals agreed and granted summary judgment.

The Supreme Court reversed, holding that A.R.S. § 12-563 codifies the elements of a medical malpractice claim (including causation), while A.R.S. § 12-572 sets the standard of proof for emergency department cases.  These are two distinct concepts.  The heightened clear and convincing evidence standard raises the degree of confidence required but does not change the elements themselves.  Expert testimony stating negligence “likely” caused the injury establishes the causation element by “connecting the dots” between the alleged negligence and injury, preventing jury speculation.

The Court emphasized that § 12-572 “does not reference expert testimony, much less state that the clear and convincing evidence standard is exclusively met through expert testimony.”  Factfinders must consider expert testimony along with the expert’s credibility, medical records, the sequence of events, and any other relevant, admissible evidence.  The Court distinguished Sampson v. Surgery Center of Peoria, 251 Ariz. 308 (2021), which rejected “could have” or “may have” testimony as too speculative.

Key takeaways for healthcare providers:

Summary judgment remains available.  The Court expressly stated defendants may move for summary judgment after discovery.  Courts may grant such motions when evidence has “so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced.”

The heightened standard still applies.  Section 12-572’s clear and convincing evidence standard remains in full effect for emergency department cases and is “more exacting than the standard of preponderance of the evidence,” providing meaningful protection for emergency healthcare providers.

Rita Bustos is a partner in the firm’s appellate practice group. She has over 15 years of appellate experience with a particular emphasis on medical malpractice and healthcare defense. In addition to her appellate practice, Rita works closely with trial counsel to provide guidance from the pleading stage through the trial, including drafting complex motions, and the post-trial stages in state and federal courts.

rbustos@jshfirm.com | 602.263.1715 | jshfirm.com/rbustos