Gorney v. Meaney – 1/31/2007

February 6, 2007

Arizona Court of Appeals Division Two Holds that Stringent Expert Witness Pleading Requirements of ARS 12-2603 Contain No Exceptions for Informed Consent Cases.

Gorney sued Meaney for medical malpractice stemming from an alleged failure to obtain his informed consent to knee surgery. Gorney then certified that expert testimony was needed to prove his claim and provided an affidavit as required by 12-2603(B). The affidavit simply stated that a doctor must inform a patient of risks of surgery and failure to do so is a breach of the applicable standard of care.

Meaney moved for summary judgment, claiming that the affidavit was deficient under 12-2603, which requires that the affidavit set forth the factual basis for the claim, the breach of duty, and the manner in which the breach caused the claimant’s damages. The superior court granted Meaney’s motion and Gorney appealed.

The appellate court rejected Gorney’s contention that informed consent cases need not conform precisely to the requirements of 12-2603 because, by necessity, experts in informed consent cases must rely on the claimant’s statement of facts. Gorney argued that such reliance would improperly inject the expert witness into a fact-finding role. The court considered the treatment of expert affidavit requirements of other states, including those like Illinois that have an exception to the more stringent pleading requirements for informed consent cases. The court concluded that an absence of an explicit exception in Arizona’s statute doomed Gorney’s argument — informed consent cases, like all other medical malpractice cases in which expert testimony will be offered, must meet the stringent requirements of 12-2603.

Judge Espinoza authored the opinion in which Presiding Judge Eckerstrom and Judge Brammer concurred.