Menu

AZAPP Blog Your resource for news and analysis of cases in Arizona's appellate courts.

AZAPP Blog header image

Baker v. University Physicians Healthcare - 2/22/2012

Arizona Court of Appeals Division Two Holds That A “Specialty” Under A.R.S. § 12-2604(A)(1), The Statute Regulating Expert Witnesses In Medical Malpractice Cases, Means One of the Twenty-Four Specialty Boards Established By the American Board of Medical Specialties, and Does Not Refer to Subspecialties.


Baker’s seventeen-year-old daughter died due to blood clots.  While in the hospital, she had consulted with Dr. Wittman, an employee of University Physicians Healthcare.  Dr. Wittman is certified by the American Board of Pediatrics as a specialist in pediatrics and subspecialist in pediatric hematology and oncology.  Baker sued for malpractice and intended to present testimony of Dr. Brouillard to show that Dr. Wittman breached the standard of care.  Dr. Brouillard is certified by the American Board of Internal Medicine as a specialist in internal medicine and a subspecialist in hematology and oncology. 

Among other things, Arizona’s laws regulating medical malpractice liability require that an expert who testifies about a doctor’s standard of care must be specialized “in the same specialty or claimed specialty as the party against whom . . . testimony is offered.”  A.R.S. § 12-2604(A)(1).  Likewise, if a defendant-doctor is a “board certified” specialist, then “the expert witness shall be a specialist who is board certified in that specialty.”  Id.  Relying on this section, the defendants moved for summary judgment on the theory that Dr. Brouillard was not board certified in the same specialty as Dr. Wittman – pediatrics.  Baker countered that Dr. Brouillard did qualify as an expert witness under the statute and that if he did not, then the statute is unconstitutional.  The trial court granted the defendants’ summary judgment and Baker appealed.

The Court of Appeals agreed that Dr. Brouillard did not qualify as an expert witness.  On appeal, Baker contended that Dr. Brouillard qualified under section 12-2604(A)(1) because both doctors had subspecialties in hematology, and hematology was the relevant specialty in this case.  The Court disagreed.  Although the statute did not define the term “specialty,” other statutes that used the term clearly referred to one of the twenty-four boards that are part of the American Board of Medical Specialties, such as the American Board of Pediatrics and the American Board of Internal Medicine.  Thus, Dr. Brouillard was “not certified in the same specialty as Dr. Wittman” because he was not certified by the American Board of Pediatrics. The fact the doctors shared a subspecialty in hematology was not sufficient or necessary.      

An earlier case had defined “specialty” differently with reference to dictionary definitions.  See Awsienko v. Cohen, 227 Ariz. 256 (App. 2011).  That case, however, involved different issues and the definition was therefore dictum.  Based on these differing interpretations, the Court opted to vacate the judgment so that Baker could attempt to find and present a qualifying expert.

The Court also rejected Baker’s argument that Section 12-2604 violated the Anti-Abrogation Clause of the Arizona Constitution.  That clause states that a “right of action to recover damages for injuries shall never be abrogated.”  Courts have held that although the legislature may not “completely abolish” a cause of action, a statute may regulate the cause of action if there are “reasonable alternatives.”  Here, Baker contended that he had no reasonable alternative because he could not find a “pediatric hematologist” who would testify.  The Court was not convinced; the statute did not require Baker to find a hematologist (a subspecialty), only someone who shared the same specialty as Dr. Wittman – that is, someone certified by the Board of Pediatrics.

Judge Eckerstrom concurred with vacating the judgment, but disagreed with the majority’s rationale.  In his view, the majority misinterpreted the statute because it ignored that the statute only requires an expert to have the same specialty if the expert is testifying about the “appropriate standard of care.”  In that context, the only specialties that should be relevant are the ones that are “pertinent to the relevant injury or procedure.”  In this case, “there is a legitimate factual dispute . . . as to whether specialization in pediatrics would be at all pertinent to the standard of care of a seventeen-year-old patient suffering from a blood disorder.”  The majority’s interpretation, however, would seemingly require an expert who specialized in pediatrics even if the patient were an adult. 

Judge Eckerstrom reasoned that the legislature cannot have intended such an absurd result.  He instead advocated for an interpretation that limited the “specialization requirement only to those specializations held by defendant physicians that are ‘appropriate’ to the injury or condition at issue.” 

Judge Howard authored the opinion in which Judge Brammer joined.  Judge Eckterstrom specially concurred, joining the opinion with respect to all issues except the interpretation of A.R.S. § 12-2604(A).

Posted by: Joseph Roth

Posted On: 3/7/2012