Arizona Court of Appeals Division Two Holds That Expert Disclosure Requirements of A.R.S. §§ 12-2603 & 2604 Apply to Res Ipsa Loquitur Medical Malpractice Cases; But Dismissal with Prejudice Is Not an Appropriate Sanction

Lorenzo Sanchez suffered severe and permanent nerve damage to his leg from knee surgery, and he sued his orthopedic surgeon and anesthesiologist under a theory of res ipsa loquitur.  Sanchez submitted a preliminary expert opinion affidavit from an orthopedic surgeon to support his claim, but not from an anesthesiologist.  Pursuant to A.R.S. §§ 12-2603 & 2604, the trial court dismissed Sanchez’s claim with prejudice against the anesthesiologist, because he failed to submit an expert opinion affidavit specifically from an anesthesiologist to support his claim.  Sanchez appealed.

Sanchez argued the trial court erred because §§ 12-2603 & 2604 do not apply to medical malpractice cases based on res ipsa loquitur.  Division Two of the Court of Appeals disagreed, noting that § 12-2603 applies to “claim[s] against a health care professional… asserted in a civil action” without an exclusion for res ipsa loquitur cases.  Further, the court noted experts are required in res ipsa loquitur actions where it is not a matter of common knowledge that the injury would not have occurred without negligence.

Sanchez also argued the trial court erred by dismissing his claim without a chance to remedy his failure to submit a proper expert affidavit.  While § 12-2603 contains detailed procedures for resolving expert disputes that do not include dismissal with prejudice, Old Pueblo argued they moved for dismissal under § 12-2604, which has no procedural requirements.  The Court agreed with Sanchez, finding there was no support under § 12-2603 to dismiss a claim with prejudice for failing to provide a proper expert affidavit, and that the legislature intended the procedural requirements of § 12-2603 to apply to § 2604 as well.  Further, the Court noted any delay caused by Sanchez’s failure to provide a proper expert affidavit was due to Old Pueblo waiting until the witness-disclosure deadline had passed to object to Sanchez’s expert disclosures.

The Court reversed the dismissal and remanded the case so Sanchez could provide an expert affidavit in compliance with §§ 12-2603 & 2604.

Presiding Judge Eckerstrom authored the opinion, with Judges Espinosa and Vasquez concurring.