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A.R.S. § 12-2603 and the Preliminary Expert Opinion Affidavit Requirement

Recently, the Arizona Court of Appeals, Division One, issued an opinion involving a plaintiff’s failure to provide a preliminary expert opinion affidavit in a medical malpractice case pursuant to A.R.S. § 12-2603(B). In the insurance defense world, it is important to remain cognizant of the requirements plaintiff faces when bringing a lawsuit because many times failure to comply with the rules and statutes allows for a request of dismissal of the claim.

In Boswell v. Fintelmann, et. al., No. 1 CA-CV 15-0859 (March 9, 2017), Steve W. Boswell, representing himself, appealed the trial court’s dismissal of his action with prejudice based on his failure to serve a preliminary expert opinion affidavit. In July 2014, Boswell filed a medical malpractice lawsuit against Robert Fintelmann, M.D., and others. When Boswell filed the lawsuit, he complied with A.R.S. § 12-2603(A) that requires:

If a claim against a health care profession is asserted in a civil action, the claimant or the party designating a nonparty at fault or its attorney shall certify in a written statement that is filed and served with the claim or the designation of nonparty at fault whether or not expert opinion testimony is necessary to prove the health care professional’s standard of care or liability for the claim.

Thereafter, Boswell failed to comply with other statutory requirements for medical malpractice claims. A.R.S. § 12-2603(B) requires:

If the claimant or the party designating a nonparty at fault or its attorney certifies pursuant to subsection H of this section that expert opinion testimony is necessary, the claimant shall serve a preliminary expert opinion affidavit with the initial disclosures that are required by rule 26.1, Arizona rules of civil procedure. If a party designates a nonparty at fault and certifies pursuant to subsection H of this section that expert opinion testimony is necessary, that party shall serve a preliminary expert opinion affidavit within sixty days after filing the designation. The claimant or the party designating a nonparty at fault may provide affidavits from as many experts as the claimant or the party designating a nonparty at fault deems necessary. The preliminary expert opinion affidavit shall contain at least the following information:

1. The expert’s qualifications to express an opinion on the health care professional’s standard of care or liability for the claim.
2. The factual basis for each claim against a health care professional.
3. The health care professional’s acts, errors or omissions that the expert considers to be a violation of the applicable standard of care resulting in liability.
4. The manner in which the health care professional’s acts, errors or omissions caused or contributed to the damages or other relief sought by the claimant.

Boswell did not provide the required affidavit or an initial disclosure statement. The defendants moved for an order compelling Boswell to provide an initial disclosure statement and preliminary expert opinion affidavit. The trial court granted defendants’ motion and ordered Boswell to serve his initial disclosure statement within twenty days and preliminary expert opinion affidavit within thirty days.

Despite the order, Boswell again failed to provide a preliminary expert opinion affidavit and defendants moved for dismissal. Boswell cross-moved for a ruling that A.R.S. § 12-2603 is unconstitutional. The trial court granted defendants’ motion to dismiss, denied plaintiff’s cross-motion, and dismissed the complaint with prejudice.

The Court of Appeals first addressed its review of Boswell’s appeal de novo. It held it reviews the appeal de novo because dismissal for failure to serve the expert affidavit is not similar to dismissal for failing to prosecute under which an adjudication on the merits is possible. See Ariz. R. Civ. P. 41(b). Also, it is not equivalent to a dismissal as a sanction for violating a discovery order since the statute requirement is meant to certify the action as not meritless, and the expert providing the preliminary opinion does not technically need to serve as the expert at trial. Jilly v. Rayes, 221 Ariz. 40, 42-43, 209 P.3d 176, 178-79 (App. 2009).

Boswell argued the trial court mistakenly dismissed his lawsuit because he did not serve his initial disclosure statement, which he did in fact provided before the court ordered deadline. However, the trial court dismissed the case because Boswell failed to serve the preliminary expert affidavit required pursuant to A.R.S. § 12-2603(B) and the deadline in the trial court order.

Under A.R.S. § 12-2603(F):

The court, on its own motion or the motion of the health care professional or designated nonparty at fault, shall dismiss the claim against the health care professional or designated nonparty at fault without prejudice if the claimant or the party designating the nonparty at fault fails to file and serve a preliminary expert opinion affidavit after the claimant or designated nonparty at fault or its attorney has certified that an affidavit is necessary or the court has ordered the claimant or the party designating a nonparty at fault to file and serve an affidavit. Upon any allegation of insufficiency of the affidavit, the court shall allow any party a reasonable time to cure any affidavit, if necessary.

Per statute, the court can only dismiss without prejudice and not with prejudice. Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 323-24, 183 P.3d 1285, 1291-92 (App. 2008). The trial court in this matter dismissed Boswell’s claim with prejudice referring to Ariz. R. Civ. P. 37(b)(2)(A)(v), which allows the court to dismiss a party’s action if the party fails to obey an order to provide or permit discovery. However, according to the Court of Appeals, the rule does not authorize dismissals with prejudice for a party’s failure to comply with A.R.S. § 12-2603. Hence, the trial court erred in dismissing Boswell’s claim with prejudice.

The nuances and requirements contained in the statutes and rules of civil procedure are important to know because many times a party’s failure to comply results in dismissal of the claim. This in turn could save time and financial resources.

ABOUT THE AUTHOR: Sitar Bhatt is an associate in Tyson & Mendes’ Phoenix, AZ office. Mr. Bhatt specializes in insurance defense, personal injury, professional liability, and general civil litigation. Contact him at (602)385-5656 or sbhatt@tysonmendes.com.