Evidence—Medical Malpractice Expert Must be Board Certified Specialist not Subspecialist

Baker v. University Physicians Healthcare, __Ariz. Adv. Rep. __, 2 CA-CV 2011-0080 (App. Div. II, February 22, 2012) (J. Howard)


Plaintiff's daughter died due to blood clots allegedly negligently treated by the defendant doctor. The defendant was board certified in pediatrics with a subspecialty in pediatric hematology/oncology. Plaintiffs' expert on the other hand, is board certified in internal medicine with subspecialties of oncology and hematology. Defendant's motion for summary judgment based upon the fact plaintiffs' expert was not board certified in the same specialty as him was granted by the trial court. The Arizona Court of Appeals vacated and remanded.

The court first addressed the applicable statute—ARS sec. 12-2604 which requires the plaintiff in a medical malpractice action file an affidavit signed by a doctor in the same “specialty” as the defendant establishing a breach of the standard of care. The court found the statute ambiguous because it failed to define “specialist.” Plaintiffs argued that the specialty at issue here was hematology and their expert was board certified in that field. The defendant argued that he was board certified in pediatrics and that was the specialty plaintiffs' expert must hold. The court found that because the American Board of Medical Specialties [ABMS] lists 24 different specialties the legislature must have intended those specialties to apply. While pediatrics is one of the listed specialties, hematology is not (rather hematology is a “subspecialty”). Because the statute specifies that plaintiffs' doctor must be of the same “specialty” and not “subspecialty” plaintiffs' doctor here must be certified in pediatrics and need not hold the subspecialty of hematology (even though the heart of the alleged malpractice was squarely within the realm of hematology).

The court acknowledged that Division I of the court of appeals had previously used the dictionary definition for “specialty” and not the ABMS definition chosen by the court here. Awsienko v. Cohen, 227 Ariz. 256, 257 P.3d 175 (App. 2011). The court allowed that in Awsienko the issue was when the doctor had to hold the specialty and therefore the definition chosen was mere dictum.

Finally, the court rejected all the constitutional challenges to the statute raised by the plaintiff.

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