Seisinger v. Siebel, __Az. Adv. Rep. __, CV-08-0224-PR (March 13, 2009)
ARS 12-2604 REQUIREMENT THAT AFFIDAVIT SIGNED BY EXPETRT IN SAME MEDICAL SPECIALITY AS DEFENDANT ESTABLISHING BREACH OF STANDARD OF CARE BE FILED WITH DISCLOSURE IS SUBSTANTIVE AND NOT PROCEDURAL THUS NOT WITHIN RULE MAKING PURVIEW OF COURTS AND THEREFORE NOT IN VIOLATION OF SEPARATION OF POWERS
Plaintiff sued the defendant for medical malpractice and supported the claim with an affidavit from a medical expert who did not meet the requirement of ARS 12-2604 that the expert have spent a majority of his time in the previous year practicing within the specialty of the defendant. Plaintiff argued his expert didn't need to meet this requirement because ARS 12-2604 conflicted with Arizona Rule of Evidence 702 which allows any person with “knowledge, skill, experience, training or education” who will “assist the trier of fact” to testify as an expert witness.
The trial court disagreed and granted a motion in limine precluding plaintiff's expert. The Court of Appeals disagreed and struck down the statute as a violation of the separation of powers clause (Article 3) in the Arizona Constitution holding the rulemaking power of the courts would be usurped by the statute. The Arizona Supreme court disagreed holding the statute is substantive and not procedural and hence not a violation of the separation of powers clause.
The court acknowledged that the statute clearly conflicted with the evidentiary rule but found that the court rule would only take precedence if the statute was procedural. The court found that Article 4 of the Constitution gives substantive law whether court or legislature made, priority over procedural rules.
Substantive law is that which gives rights and procedural law is that which prescribes the method for enforcing the right. Although Rule 702 sets forth some of the qualifications an expert must meet to testify there has been established a body of substantive common law that requires in addition the expert be a doctor in a medical malpractice action. That the legislature would choose to require that doctor be actively practicing in the same specialty as the defendant is merely an addition to the substantive law allowed by Article 4.
In conclusion the court pointed out in issuing this ruling it clearly was not ruling on any other constitutional challenges (such as Art. 18, §6 (abrogation by regulation), Equal Protection and Special Laws).