Sanchez v. Old Pueblo Anesthesia, P.C., 2 CA-CV 2007-1031, ___ Ariz. Adv. Rep. ____(App. Div. 2, May 30, 2008) (Justice Eckerstrom). PRELIMINARY EXPERT OPINION AFFIDAVIT NECESSARY UNDER A.R.S. §12-2603 & 2604. EVEN WHERE PLAINTIFF ALLEGES DEFENDANT IS NEGLIGENT UNDER DOCTRINE OF RES IPSA LOQUITUR, DISMISSAL WITH PREJUDICE NOT APPROPRIATE SANCTION FOR FAILURE TO FILE AFFIDAVIT. Plaintiff had knee surgery and was left with permanent nerve damage to his leg. He sued the surgeon and anesthesiologist alleging he could not prove precisely how he was injured but that the injury could only have been the result of negligence of one or both defendants.
The plaintiff ultimately filed an affidavit signed by an expert orthopedic surgeon stating that the plaintiff's nerve injury was caused during the surgery and that "such damage would not occur during this kind of operative procedure unless there was negligence either by the Surgeon or by the Anesthesiologist." Further the expert noted an indication in the medical records that suggested the anesthesiologist had used a "popliteal block" which if used would have been below the standard of care.
The anesthesiologist moved to dismiss on the basis that the statute requires an affidavit signed by an expert in the same specialty as the defendant who has established not only his qualifications and expertise in that area but a breach in the standard of care. The anesthesiologist took the position that an orthopedic surgeon's affidavit even in the face of res ipsa loquitur theory did not meet the standards of the statute. The trial court agreed and dismissed the lawsuit.
The Court of Appeals first found that the res ipsa loquitur doctrine does not give the plaintiff license to sue healthcare practitioners without complying with A.R.S. §12-2604 and its expert affidavit requirement.
Restatement Second of Torts §328D requires that a plaintiff in a medical malpractice case who chooses to invoke res ipsa doctrine must nonetheless present expert testimony necessary to establish a departure from the relevant standard of care except when the negligence is so clear and apparent that a layman would recognize it. In this regard the court made special note of the fact that the plaintiff never took the position that the negligence claim could be proven without expert testimony and it is further uncontroverted that an orthopedic surgeon does not have the qualifications required under A.R.S. §12-2604 to express standard of care opinions regarding an anesthesiologist.
However, the court found the sanction of dismissal with prejudice to be inappropriate under A.R.S. §12-2603 and 2604. In fact, §12-2603 sets forth "an orderly procedure by which the respective parties can litigate what expert witness testimony will be necessary and what experts must therefore be disclosed - and it does not contemplate dismissal with prejudice as a sanction for a deficient preliminary affidavit." Specifically, the statute requires a claimant certify whether an expert is necessary and gives opposing counsel the option of seeking an order directing the claimant to serve an expert opinion affidavit. Where requested and granted, it is the trial court's obligation to set a date within which the plaintiff has to comply. If this deadline is not met, the case is to be dismissed "without prejudice." In any event, the parties are to be allowed "a reasonable time to cure any insufficient affidavit."
According, the defendant's motion to dismiss should have been treated as an application for further expert disclosure, the plaintiff should have been given a deadline for which to file such an affidavit and failure to do so should have resulted in dismissal without prejudice.