Romero v. Hasan (Arizona Court of Appeals Case No. 1 CA-CV 15-0508, filed Jan. 5, 2017)

In this appeal from the dismissal of a medical malpractice case, the Arizona Court of Appeals addressed the issue of whether a patient filing a medical malpractice claim can circumvent A.R.S. § 12-2603’s requirement regarding a preliminary expert opinion affidavit by requesting an evidentiary hearing at which the patient’s treating physicians could testify regarding the information required by § 12-2603 in lieu of filing and serving a preliminary expert opinion affidavit containing that information. The court of appeals answered this question “no.” The court of appeals held: “A.R.S. § 12-2603(F)clearly and unambiguously mandates the superior court dismiss without prejudice a claim when the claimant fails to comply with the court’s order to file and serve a preliminary expert opinion affidavit. A.R.S. § 12-2603 does not provide for a hearing in lieu of serving the requisite affidavit.”

The underlying medical malpractice claim appears to have been filed by a pro per plaintiff, David Romero. Mr. Romero alleged Dr. Khalid Hasan negligently prescribed an incorrect dosage of synthroid. A.R.S. § 12-2603 (A) requires the plaintiff in a medical malpractice case to certify at the time the claim is filed whether expert opinion testimony is necessary to prove the health care professional’s standard of care or breach. Mr. Romero certified expert testimony was not necessary. Dr. Hasan then exercised his right, under A.R.S. § 12-2603 (D), to dispute Mr. Romero’s certification and applied for an order requiring Mr. Romero to serve a preliminary expert opinion affidavit. The superior court found Mr. Romero’s claim required expert testimony, and ordered Mr. Romero to provide a preliminary expert opinion affidavit within nine weeks. See A.R.S. § 12-2603 (E). Under A.R.S. § 12-2603 (B), that affidavit was required to contain at least the following information:

  • The expert’s qualifications to express an opinion on the health care professional’s standard of care or liability on the claim.
  • The factual basis for each claim against a health care professional.
  • 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.
  • 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.

Three days before the court-ordered deadline for filing and serving the preliminary expert opinion affidavit, Mr. Romero asked the superior court to set a hearing so his treating physicians could “establish the requirements under A.R.S. § 12-2603 .” Mr. Romero admitted he was unable to obtain the affidavit required by A.R.S. § 12-2603 . The superior court denied Mr. Romero’s request for a hearing and dismissed Mr. Romero’s claim without prejudice pursuant to 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.”)

In affirming the superior court’s decision, the court of appeals essentially said the legislature meant what it said in A.R.S. § 12-2603 (F): the superior court should dismiss a medical malpractice claim without prejudice when the plaintiff fails to file and serve a preliminary expert opinion affidavit in any case where the plaintiff certifies, or the court finds, a preliminary expert opinion affidavit is necessary. The court of appeals noted the purpose of the preliminary expert opinion affidavit is to “certify that the action against the medical professional is not meritless.”

The takeaway: If a preliminary expert opinion affidavit is necessary in a medical malpractice case, your case will be dismissed without prejudice if you fail to timely file and serve the affidavit.

To read the full court of appeals opinion, click here.