Schmidt, Sethi & Akmajian Blog

Civil Procedure/Medical Malpractice: Required Qualifications of Expert/Right to Substitute New Expert

Posted by Ted A. Schmidt | Sep 21, 2015 | 0 Comments

Preston v. Amadei, 720 Ariz. Adv. Rep. 22 (App. Div. I, August 27, 2015) (J. Brown)


Plaintiffs' decedent broke her femur in a car accident and ultimately received treatment at Kachina Point Healthcare [Kachina]. She had a history of heart problems. In response to chest pain, hand numbness and hypertension she was seen by the Kachina Medical Director, Defendant Dr. Amadei. He prescribed nitroglycerine which relieved her symptoms but she died a few hours later anyway.

Plaintiffs brought this wrongful death action offering Dr. David Lapan as their standard of care expert. Dr. Amadei is board-certified in internal medicine. Dr. Lapan., is board-certified in internal medicine and in cardiology.  The trial court granted the defendant's motion for summary judgment on the basis that Dr. Lapan did not qualify as a standard of care expert under A.R.S. §12-2604  because he did not spend the majority of his clinical practice in internal medicine—he practiced almost exclusively in cardiology.

The court also granted defendant's motion for sanctions based upon plaintiffs' “false and misleading” disclosure regarding purported opinions of the medical examiner and defendant's motion in limine to preclude testimony that the defendant breached his contract with Kachina to provide proper services as its medical director.

Plaintiffs then filed a motion to substitute a new expert on the standard of care, requested a trial continuance, moved for new trial and asked the summary judgment be vacated. The trial court denied these motions.  Plaintiffs' appealed and the defendant cross-appealed the trial court's denial of its motion for summary judgment on the issue of causation. The Arizona Court of Appeals affirmed in part and reversed and remanded in part.

The court of appeals found that A.R.S. §12-2604 is clear. It requires plaintiffs' standard of care expert be certified in the same specialty as the defendant and spend a majority of his clinical  practice in the same specialty or subspecialty as the defendant.  Here, while Dr. Lapan was appropriately certified it was uncontroverted that he practiced in cardiology and did not spend a majority of his time in the clinical practice of internal medicine.  The defendant is not a cardiologist.  Summary judgment was appropriate on this issue. 

As to the denial of plaintiffs' motion to substitute the court of appeals reversed.  A.R.S. §12-2603 (F) states that "[u]pon any allegation of insufficiency of the affidavit, the court shall allow any party a reasonable time to cure any affidavit, if necessary."  This statute  "erects 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."  Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz.

317, 323, (App. 2008).

The court of appeals affirmed the sanction award finding that while plaintiffs maintained they did not know the opinions of the medical expert to be false it was sufficient under Rule 37 (c) of the Arizona Rules of Civil Procedure that the trial court found plaintiffs “should have known” the opinions were false where they were in conflict with the medical examiner's autopsy report and the medical examiner testified in deposition he had not received a copy of the disclosure before it was filed.  The attorneys' fees awarded defendant were justified by its need to perform additional research due to the false disclosure.

Finally, the court of appeals affirmed the trial court's denial of defendant's motion for summary judgment on the issue of causation. The defendant maintained the plaintiffs' decedent was noncompliant and refused to go to the emergency room when urged to do so.  The plaintiffs claimed the defendant was negligent in failing to involve the family in this decision. Decedent's son testified that had he been informed he would have persuaded her to go.  The trial court properly concluded this created a question of fact on causation. Likewise, Dr. Lapan would be permitted to further make the causation link under Rule 702 of Evidence based upon his years of experience in treating heart patients in the hospital and his belief that had plaintiffs' decedent been admitted to the hospital she likely would have received the appropriate cardiac monitoring that would have saved her life.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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