Arizona Preliminary Med Mal Expert Affidavit Requirement Constitutional

Jilly v. Rayes, 555 Ariz. Adv. Rep. 33 (App. Div. I, April 30, 2009) (Justice Thompson)

ARS 12-2603 REQUIRING EXPERT AFFIDAVIT THAT MEDICAL DEFENDANT BREACHED STANDARD OF CARE DOES NOT UNCONSTITUTIONALLY IMPINGE ON COURT'S SEPERATE RULEMAKING POWER

Plaintiffs sued defendant doctors for the wrongful death of Cora Carter. They did file an affidavit certifying an expert was required to prove the standard of care and that the standard was breached in this case. The plaintiffs took the position the statute requiring this affidavit was an unconstitutional violation of the separation of powers and rule making function of the courts.

The Court of Appeals disagreed with the trial court and held the statute constitutional in that is merely supplements and does not infringe upon or supplant the court's applicable rules. Further it does not put plaintiff's at an unfair disadvantage since the early disclosure of this expert affidavit can be modified and ordered for a later date by the court and this expert need not testify at trial so is not necessarily an unfair requirement for early disclosure of plaintiff's expert.