Arizona Case Law Update: New Az Ct App Decision: Az Med Mal Affidavit Statute Applies to Vulnerable Adult Claims.
Torts--Az Med Mal Affidavit Statute(12-2604)Applies to Vulnerable Adult Claims
Cornerstone Hospital vs Marner, 649 Ariz. Adv. Rep 6 (App. Div. II, December 7, 2012) (J. Vasquez)
ARS sec. 12-2604 REQUIRES AFFIDAVIT ESTABLISHING BREACH OF STANDARD OF CARE BY QUALIFIED HEALTH CARE PROFESSIONAL TO PROCEED AGAINST NURSING HOME FOR NEGLIGENT MEDICAL CARE UNDER VULNERABLE ADULT ARS sec. 46-451-59/REGISTERED NURSE QUALIFIED TO TESTIFY REGARDING STANDARD OF CARE FOR RN, LPN, CNA & PN
Plaintiff sued defendant nursing home alleging negligent nursing and nutrition care resulted in his wife's death. Defendant moved to limit plaintiff's expert Registered Nurse's testimony to wound care and an order precluding her from testifying regarding the care given by a licensed practical nurse, a certified nurse's aide and a private nurse. Defendant claimed that ARS sec. 12-2604 required an affidavit signed by a separate specialist in each of the above categories and not just an RN. Plaintiff responded that his expert was duly qualified in all areas and regardless ARS sec. 12-2604 doesn't apply to this action brought under the Adult Protective Services Act ARS sec. 46-451 et seq. protecting vulnerable adults. The trial court ruled that 12-2604 only applies to actions brought under the Medical Malpractice Act and not the APSA, but regardless, plaintiff's expert was qualified to testify on all the medical issues concerning each category of nurse and nurse's aide but was not qualified to testify regarding nutrition.
Defendant then brought this special action challenging the trial court ruling. The Arizona Court of Appeals accepted jurisdiction finding the trial court came to the right conclusion but ruled incorrectly regarding the applicability of 12-2604.
The court of appeals recognized that while 12-2604 does not specify that it applies to vulnerable adult actions the legislative intent clearly establishes that it does apply to all civil actions alleging negligence by a health care professional. The legislative purpose is to assure the basis and validity of all civil claims for professional negligence early in the life of the action.
Finally, the court found that a Registered Nurse, who by definition is better qualified and trained than a LPN, PN or CNA, is suitably qualified to testify to the standard of care for each of these health care professionals.
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