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Williamson v. O’Brien - 5/16/2017

Arizona Court of Appeals Division One holds that failure to file an expert affidavit under A.R.S. § 12-2603 in a medical malpractice action does not justify dismissal with prejudice.


A.R.S. § 12-2603(A) requires the plaintiff to certify whether a medical opinion is necessary to prove a medical malpractice claim and § 12-2603(B) sets out the general contents of an expert medical opinion.  A patient filed a medical malpractice action against her physician.  She failed to submit an expert affidavit under § 12-2603(A), but, in response to the trial court order determining that a medical opinion would be necessary, submitted medical records that did not qualify as an expert opinion.  The trial court dismissed the action with prejudice because the medical expert report did not comply with § 12-2603(B).

The Court of Appeals affirmed and modified the judgment to dismiss the claim without prejudice.  The Court concluded that the action was properly dismissed for failing to provide the information required by § 12-2603(B).  However, § 12-2603 does not authorize dismissal with prejudice.  Dismissing under § 12-2603 would not be a discovery sanction but, rather, would reflect a substantive pleading failure meant to ensure the claim has merit.  Although the Court of Appeals previously held that dismissal under § 12-2603 was dismissal for failure to prosecute, this prior decision could conflict with the supreme court’s rulemaking authority.

Judge Howe authored the opinion; Judges Winthrop and Thompson concurred.

Posted By: William D. Furnish

Posted On: 5/31/2017