Torts-Medical Malpractice- Specialty Required of Standard of Care Expert

DOCTOR TESTIFYING AS TO STANDARD OF CARE IN MEDICAL NEGLIGENCE CASE NEED NOT HOLD SAME BOARD CERTIFICATION AS DEFENDANT DOCTOR AT THE TIME OF THE ALLEGED TORT AS LONG AS CERTIFICATION IS HELD AT THE TIME HE TESTIFIES

Plaintiffs brought this medical negligence wrongful death claim against several health care providers after their decedent died of cardiac arrest in 2006. Defendant Dr. Hoelzinger is a board certified cardiovascular disease and interventional cardiology specialist and defendant Dr. Cohen is board certified in internal medicine and nephrology. Plaintiff's standard of care expert Dr. Wilson was board certified in internal medicine in 2002 and in nephrology in 2007. After discovery closed the defendant doctors moved for summary judgment on the ground that plaintiffs' expert was not certified in their relevant specialties at the time of the alleged negligence and therefore could not testify pursuant to ARS sec. 12-2604 (A)(1). Summary judgment was granted. The Arizona Court of Appeals affirmed as to Dr. Hoelzinger but reversed as to Dr. Cohen.

The court of appeals noted that while ARS sec. 12-2604 (A) (1) clearly requires a standard of care witness be of the same “specialty” at the time of the incident it does not expressly impose that timing requirement on board certified experts. Thus the court held, if the defendant doctor is a specialist but not board certified in that specialty the testifying experts must hold that same specialty at the time of the alleged negligence. However, if the defendant doctor is board certified the testifying expert need only hold the board certification at the time she testifies.

The court's reasoning was two-fold. First where the legislature uses a word or words in one section of a statute and omits those same words in another section, it is presumed the omission was intentional. Here the legislature specifically stated that a specialist must hold the specialty “at the time of the occurrence” but stated no temporal qualification when discussing board certified specialists. Secondly, the court found the distinction rational based upon the length of time and depth of study required to acquire board certification as opposed to a mere specialty designation.

Thus, Dr. Wilson should be permitted to testify as to the standard of care regarding Dr. Cohen since at the time of his testimony he holds board certification in the same areas as Dr. Cohen. Conversely because he did not hold board certification in Dr. Hoelzinger's specialties' at any time he was properly excluded from testifying against this defendant. Further his deposition testimony was not critical of Dr. Hoelzinger's care providing yet another reason for excluding his testimony as to this defendant.

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