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.