Schmidt, Sethi & Akmajian Blog

Torts—Medical Malpractice—Failure to File Preliminary Expert Affidavit

Posted by Ted A. Schmidt | Jan 26, 2017 | 0 Comments

Romero v. Hasan, 755 Ariz. Adv. Rep. 27 (App. Div. I, January 5, 2017) (J. Thompson)

PLAINTIFF'S FAILURE TO FILE PRELIMINARY EXPERT AFFIDAVIT IN MEDICAL NEGLIGENCE CASE SUPPORTS DISMISSAL/LIVE TESTIMONY OF EXPERT AT HEARING IN LIEU OF AFFIDAVIT NOT A PERMISSIBLE SUBSTITUTE UNDER STATUTE

Plaintiff sued defendant doctor alleging negligence in prescribing medication.  Pursuant to A.R.S.§12-2603 (2016) plaintiff alleged that expert testimony was not necessary to prove a breach of the standard of care. The defense and ultimately the trial court disagreed.  Plaintiff was given 9 weeks to file the expert affidavit required by the statute. Three days before the running of the 9 weeks, plaintiff asked the court to set a hearing so his treating physician could “establish the requirements under A.R.S. §12-2603. Plaintiff admitted he could  not obtain the requisite affidavit. The trial court dismissed plaintiff's suit without prejudice and the Arizona Court of Appeals affirmed.

The statute allows a plaintiff to certify upon filing a medical malpractice case that an expert is unnecessary to prove a breach of the standard of care. If the defendant disagrees with this assessment the court is to decide whether an expert is required and if so, set a deadline for the plaintiff to file a preliminary affidavit from a qualified expert establishing the standard of care and a breach. If this deadline is breached the statute requires dismissal without prejudice. A.R.S. §12-2603(F). The statute does not allow for a hearing with live testimony in lieu of the affidavit.

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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