Arizona Court of Appeals Division One Holds That Under A.R.S. § 12-2604(A) an Expert Need Not Have Been Board-Certified at the Time of an Occurrence to Testify About the Standard of Care Applicable to a Board-Certified Defendant.

In 2006, Filip Awsienko suffered a cardiac arrest at Banner Desert Medical Center and died.  Dr. Cohen, who is board-certified in internal medicine and nephrology, participated in Awsienko’s care at BannerDesertMedicalCenter.  Dr. Hoelzinger, who is board-certified in cardiovascular disease and interventional cardiology, also treated Awsienko.  Awsienko’s family filed this action against Drs. Cohen and Hoelzinger alleging medical negligence resulting in Awsienko’s death.  The Awsienkos disclosed James Wilson, M.D., as their standard of care expert against Drs. Cohen and Hoelzinger.  Dr. Wilson achieved board certification in internal medicine in 2002 and in nephrology in 2007.  After the discovery deadline, Drs. Cohen and Hoelzinger moved for summary judgment, arguing that Dr. Wilson did not meet the requirements of A.R.S. § 12-2604(A)(1)for expert witnesses and therefore could not testify that Drs. Cohen and Hoelzinger failed to meet the applicable standard of care.  The superior court agreed and entered summary judgment for Drs. Cohen and Hoelzinger.  The Awsienkos timely appealed. 

On appeal, the Arizona Court of Appeals affirmed the trial court’s summary judgment in Dr. Hoelzinger’s favor but reversed its judgment for Dr. Cohen.  Arizona law requires a plaintiff who asserts a medical negligence claim against a healthcare professional to prove that the healthcare professional failed to comply with the applicable standard of care.  If the plaintiff intends to establish the standard of care through expert testimony, the expert must meet certain minimum qualifications: “If the party against whom . . . the testimony is offered is or claims to be a specialist, [the witness must] specialize[] at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom . . . the testimony is offered.  If the party against whom . . . the testimony is offered is or claims to be a specialist who is board-certified, the expert witness shall be a specialist who is board-certified in that specialty or claimed specialty.” A.R.S. § 12-2604(A).  In this case, it was undisputed that Dr. Hoelzinger is board-certified in cardiovascular disease and interventional cardiology and that Dr. Wilson is not board-certified in either cardiovascular disease or interventional cardiology.  The Court of Appeals, therefore, concluded that Dr. Wilson was not qualified under A.R.S. § 12-2604 to testify whether Dr. Hoelzinger failed to comply with the applicable standard of care.  In doing so, the Court rejected Awsienkos’ contention that Dr. Wilson did not need to be board-certified in the same specialty as Dr. Hoelzinger because Dr. Hoelzinger never asserted that he was a board-certified specialist at the time he treated Awsienko.  According to the Court of Appeals, the Awsienkos’ argument ran contrary to the plain language of the statute.  Because however, the statute does not require an expert testifying about the standard of care applicable to a board-certified defendant to have been board-certified at the time of the occurrence, the Court of Appeals concluded that the superior court erred in granting summary judgment for Dr. Cohen.

Judge Kessler authored the opinion; Judges Johnsen and Sheldon concurred.