Arizona Court of Appeals Division Two holds that a party may find a new medical standard of care expert witness after another party challenges the expert.

A patient underwent open-heart surgery at a hospital and suffered post-surgery complications, including the development of a pressure ulcer.  The patient brought a medical malpractice action against the hospital for causing the ulcer and failing to timely discover the ulcer.  The patient retained a wound-care nurse as her standard of care expert.  The hospital moved for summary judgment on the ground that the patient’s expert was not qualified to testify as a standard of care expert under A.R.S. § 12-2604 because the patient’s expert was a wound-care nurse rather than an ICU nurse.  The trial court granted summary judgment on behalf of the hospital and denied the patient’s request to secure a new expert.

The Court of Appeals agreed that a wound-care nurse was not qualified to testify as a standard of care expert because the nurses who treated the patient were either ICU nurses or generalists.  The Court of Appeals reversed the trial court’s denial of the patient’s request to secure a new standard of care witness, however, because A.R.S. § 12-2603(F) entitles a malpractice plaintiff to reasonable time to cure an expert affidavit if that affidavit is challenged, and a defendant cannot negate that right by moving for summary judgment rather than challenging the expert affidavit directly.

The Court of Appeals also held that the trial court did not abuse its discretion in ordering the hospital to produce certain patient records because medical records are subject to disclosure if they are relevant and appropriately redacted to safeguard patient identities, the records were not protected under the federal Patient Safety and Quality Improvement Act because they were not specifically created for safety or quality control purposes, and the records were relevant evidence of the hospital staff’s habit or routine practice.

Judge Espinosa delivered the unanimous opinion, in which Presiding Judge Howard and Judge Staring concurred.