Rasor v. Northwest Hospital, LLC (10/18/2017)
Arizona Supreme Court holds that in medical malpractice actions, a defendant may move for summary judgment based on a proposed expert’s lack of qualifications under A.R.S. § 12-2604 without first challenging the sufficiency of the expert affidavit under A.R.S. § 12-2603.
After surgery, a patient was placed in the intensive care unit. The patient developed complications which resulted in additional procedures and, allegedly, permanent damages. The patient sued the hospital for malpractice regarding ICU treatment and filed a preliminary affidavit under A.R.S. § 12-603 identifying a wound-care nurse as expert. Following the expert disclosure deadline, the hospital moved for summary judgment on the grounds that the nurse lacked expert qualifications under A.R.S. § 12-604. The superior court granted summary judgment to the hospital on the wound-care nurse’s lack of expert qualifications to testify on the standard of care and denied the patient’s motion to substitute a new expert. The court of appeals affirmed that the nurse lacked qualification, but held that the patient was entitled to an opportunity to cure pursuant to § 12-2603(F). The Supreme Court granted review.
Court of appeals opinions were not consistent on whether a defendant must challenge the sufficiency of the expert affidavit under § 12-2603 before, or as part of, moving for summary judgment on lack of qualification under § 12-2604. Section 12-2603 provides that a plaintiff must file a preliminary expert opinion affidavit that sets forth the “expert’s qualifications to express on an opinion.” § 12-2603(B)(1). A defendant may challenge the sufficiency of the affidavit and a plaintiff has “a reasonable time to cure any affidavit, if necessary.” § 12-2603(F). Section 12-2604 is a later-adopted statute that sets out required qualifications for experts in medical malpractice cases, including that standard of care experts must match the defendant’s specializations and have either actively clinically practiced or taught in the specialty for the majority of their time in the past year. § 12-2604(A). The Supreme Court held that the text of §§ 12-2603 and -2604 do not require a challenge to the affidavit under § 12-2603 to be a prerequisite to a motion for summary judgment on lack of qualifications. Nor is the § 12-2603(F) cure clause available when a defendant moves for summary judgment under § 12-2604.
The Supreme Court also held that an expert is unqualified to testify on standard of care if she did not engage in active clinical practice or teaching during the year immediately preceding the injury.
The case was remanded to the court of appeals for consideration of whether the nurse was qualified on causation and whether expert testimony on that issue was required.
Justice Bolick delivered the unanimous opinion of the court.