Razor v. Northwest Hospital, LLC, ___Az Adv. Rep. ___ No. CV-16-0134-PR (October 18, 2017) (J. Bollick)

DEFENDANT IN MED MAL CASE MAY MOVE FOR SUMMARY JUDGMENT BASED UPON DEFICIENCIES IN PLAINTIFF'S EXPERT QUALIFICATIONS UNDER ARS 12-2603 WITHOUT FIRST CHALLENGING THE EXPERT'S AFFIDAVIT UNDER ARS § 12-2604/WHERE QUALIFICATIONS CHALLENGED PLAINTIFF MAY ONLY OBTAIN ADDITIONAL TIME TO FIND NEW EXPERT UNDER RULE 56(d) (FORMERLY (f))/PLAINTIFF'S EXPERT NOT QUALIFIED TO TESTIFY TO STANDARD OF CARE WHERE EXPERT DID NOT PRACTICE IN YEAR PRIOR IN SAME CLINICAL PRACTICE AREA AS DEFENDANT

Plaintiff sued for medical malpractice arising out of injuries related to a decubitus ulcer that developed while in the care of defendant hospital and its ICU nurses.  Defendant moved for summary judgment alleging plaintiff's expert did not meet the qualifications standard of ARS § 12-2603 to testify on the issue of standard of care or causation. The trial court granted summary judgment. Plaintiff appealed and the Arizona Court of Appeals affirmed in part but remanded ordering the trial court to give plaintiff time to find a new expert under ARS § 12-2604(F). The Arizona Supreme Court reversed the trial court, reversed in part, vacated in part and remanded the court of appeals decision.

In order to maintain a medical malpractice claim a plaintiff must file an affidavit with her disclosure statement 40 days after the last responsive pleading establishing a breach of the standard of care. ARS § 12-2603.  In order to qualify as an expert to establish the breach the expert must have practiced or taught in the preceding year in the same clinical field as the defendant. 

The Supreme Court found that a defendant may seek summary judgment on the lawsuit based upon a failure to meet the qualification standard without first challenging the affidavit. In so doing, defendant eliminates the plaintiff's right to extra time to find a new expert should the motion be granted under ARS § 12-2603. Instead, in the face of a motion for summary judgment challenging the plaintiff's expert's qualifications, the plaintiff's only recourse for seeking more time is under the discretionary purview of Arizona Rule of Civil Procedure 56(d)(formerly (f)). 

The court further found that plaintiff's expert, while a certified wound care specialist who worked at a long term care facilities doing admission assessments, reassements, and long term care planning, had not worked or taught in the clinical field of an ICU nurse and was therefore not qualified to offer opinions on the standard of care.