Lorenzo Sanchez, Sr. v. Old Pueblo Anesthesia, Pc

Citation: Not availableDocket: 2 CA-CV 2007-0131

Court: Court of Appeals of Arizona; May 30, 2008; Arizona; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Lorenzo and Bertha Sanchez appeal a trial court's dismissal of their medical malpractice complaint against Old Pueblo Anesthesia, P.C. and Dr. Daniel Hughes due to their failure to secure a preliminary expert opinion affidavit from an anesthesiologist. The Sanchezes contend that their reliance on the doctrine of res ipsa loquitur means they are not required to obtain an expert from each relevant specialty, as per A.R.S. 12-2603 and 12-2604. They also argue that the court should have allowed them time to obtain the necessary affidavit instead of outright dismissing the complaint. The appellate court concurs that the Sanchezes must comply with A.R.S. 12-2604, even under res ipsa loquitur, but finds that a dismissal with prejudice was inappropriate given their circumstances. Consequently, the court reverses the dismissal and remands the case for further proceedings. The Sanchezes had initially filed their complaint alleging that Dr. Hughes, along with Dr. James Levi and Tucson Orthopaedic Institute, were negligent in the surgery that resulted in severe nerve damage to Lorenzo's leg. After failing to provide an affidavit from an anesthesiologist by the court's deadline, Old Pueblo moved to dismiss, leading to the trial court's decision to grant that motion.

The Sanchezes contend that the trial court incorrectly interpreted A.R.S. §§ 12-2603 and 12-2604 by requiring expert testimony from both an anesthesiologist and an orthopedic surgeon to support their res ipsa loquitur claim. A.R.S. 12-2603(A) mandates that a plaintiff in a civil action against a health care professional must certify whether expert testimony is necessary to prove the standard of care or liability. If deemed necessary, an affidavit must accompany initial disclosures, detailing the expert’s qualifications, the facts of the claim, the acts violating the standard of care, and the resultant harm. A.R.S. 12-2604(A) specifies that expert witnesses must be licensed and specialize in the same field as the defendant.

In their case, the Sanchezes provided an affidavit from an orthopedic surgeon, who stated that nerve damage sustained during surgery was likely due to negligence, implicating both the surgeon and anesthesiologist. However, the trial court found that the Sanchezes did not meet the requirements of A.R.S. 12-2604 regarding Dr. Hughes, the anesthesiologist, as they failed to provide expert testimony from a board-certified anesthesiologist. The court ruled that the Sanchezes could not rely on res ipsa loquitur to bypass the statutory requirements.

The Sanchezes argue that the statutes apply only to typical medical malpractice cases and not to those using res ipsa loquitur. However, the wording of the statutes broadly applies to all claims against health care professionals without exceptions for res ipsa loquitur cases. The court referenced the presumption that if the legislature intended to create such an exception, it would have been explicitly stated, drawing comparisons to other jurisdictions that have made specific exceptions.

The Sanchezes argue that the res ipsa loquitur doctrine allows them to avoid identifying specific negligent actions by the multiple health care professionals involved in Lorenzo's operation. They assert that A.R.S. 12-2603 and 12-2604, effective post-surgery, should not apply retroactively to their case. However, the court disagrees, stating these statutes are procedural and do not infringe on the Sanchezes' vested rights, allowing for retroactive application. The Sanchezes contend that the requirement for an expert affidavit under A.R.S. 12-2604(A)(1) and A.R.S. 12-2603(B) is overly burdensome, suggesting it necessitates identifying an expert for every involved practitioner, potentially undermining their res ipsa claim. The court clarifies that the res ipsa doctrine does not permit indiscriminate lawsuits against all health care practitioners nor does it relieve plaintiffs from identifying who controlled the instruments causing the injury. The doctrine serves as a rule of circumstantial evidence, allowing an inference of negligence when certain conditions are met. The Sanchezes have shown they could secure expert testimony identifying which practitioners controlled the relevant instruments. Furthermore, Arizona law requires expert testimony in cases where the injury's occurrence without negligence is not common knowledge, particularly in medical malpractice.

Arizona courts require expert testimony in medical malpractice cases invoking the res ipsa loquitur doctrine to establish a departure from the standard of care, except in clear cases of negligence recognizable by laypersons. This principle has been consistently upheld in various cases, affirming that expert testimony is essential unless the negligence is grossly apparent. Even with the enactment of A.R.S. 12-2603 and A.R.S. 12-2604, which set qualifications for medical experts, there is no requirement for expert testimony in res ipsa cases where it was previously unnecessary. The trial court dismissed the Sanchezes' case not due to their misunderstanding of the need for expert testimony, but because their expert, an orthopedic surgeon, lacked the qualifications to testify on the standard of care relevant to the anesthesiologist involved. The court noted that the Sanchezes did not justify why the statutory expert requirements should be relaxed in res ipsa cases. They argued that an orthopedic surgeon could opine on the negligence aspect due to their involvement in the surgery; however, A.R.S. 12-2604(A) explicitly prohibits an expert in one medical specialty from testifying about the standard of care applicable to a different specialty. The court emphasized adherence to the statute's clear language, stating that even if the orthopedic surgeon had relevant experience, the statutory requirements must be followed without deviation.

The Sanchezes contend the court improperly dismissed their complaint for noncompliance with A.R.S. 12-2604, asserting they adhered to Rule 26(b)(4)(D), which restricts the number of expert witnesses per medical issue. However, this rule permits one expert per medical issue but does not limit the total number of experts in a case, and it allows for broader interpretation when issues span multiple disciplines. Thus, the court found that Rule 26(b)(4)(D) does not excuse the Sanchezes' failure to disclose an anesthesiology expert.

Additionally, the Sanchezes argued against the trial court's denial of their request to rectify their lack of an anesthesiology affidavit. Old Pueblo claimed this request was inadequately presented and thus waived. However, the statutes A.R.S. 12-2603 and A.R.S. 12-2604 do not support case dismissal with prejudice for a deficient preliminary expert opinion affidavit. Instead, A.R.S. 12-2603 outlines a process for determining necessary expert testimony and mandates dismissal without prejudice if an affidavit is not filed, while also allowing time to correct any deficiencies.

The trial court's dismissal was deemed an inappropriate sanction as it exceeded the remedies allowed by the statutes. The Sanchezes were justified in expecting the trial court to follow the statutory procedures, and their brief request to submit an additional affidavit was sufficient to preserve their claim for appeal.

Old Pueblo moved for dismissal under A.R.S. 12-2604, arguing that the Sanchezes’ expert was unqualified to testify against them. Old Pueblo contended that the procedural framework of A.R.S. 12-2603 did not apply to their motion, which would allow the trial court more flexibility in remedying the situation. However, A.R.S. 12-2604 does not provide its own procedural guidelines; instead, A.R.S. 12-2603 outlines specific procedures for challenging an expert's qualifications, including requirements for preliminary expert affidavits and the process for opposing counsel to seek relief if they find the affidavit insufficient.

Old Pueblo claimed that the trial court could dismiss the case due to the Sanchezes’ expert's lack of qualifications, arguing that any new expert disclosures would violate the established deadlines. The record indicates that the Sanchezes submitted their flawed expert affidavit before the witness-disclosure deadline, but Old Pueblo did not challenge its sufficiency until after the deadline had passed, preventing the Sanchezes from remedying the issue.

The trial court's choice of dismissal with prejudice was not justified by the record, as it was not authorized under A.R.S. 12-2603. If the court intended to sanction the Sanchezes for the flawed affidavit, such a dismissal was inappropriate. Furthermore, any delays in the proceedings seemed to stem from Old Pueblo's timing in filing its challenge.

Ultimately, the court affirmed that the Sanchezes needed to provide an affidavit compliant with A.R.S. 12-2604 to present testimony on the standard of care for an anesthesiologist. However, it reversed the dismissal with prejudice and remanded the case for the trial court to handle the Sanchezes’ affidavit issue in accordance with A.R.S. 12-2603.