Arizona Court of Appeals Division One Holds that A.R.S. § 12-2604(A) Is Inapplicable to Board Disciplinary Proceedings.

In 2009, Valley View Medical Center advised the Arizona Medical Board (the “Board”) that a member of its medical staff, Shakeel Kahn, had been summarily suspended for conduct that may have constituted unprofessional conduct.  Following an investigation, the Board’s medical consultant, Kathleen Coffer, submitted a report opining that Kahn had fallen below the standard of care in treating at least one of his patients.  The Board subsequently filed a formal complaint against Kahn.

The parties participated in an evidentiary hearing before an Administrative Law Judge (“ALJ”), who concluded that Kahn had deviated from the standard of care and recommended that the Board issue a letter of reprimand.  At its August 11, 2010 meeting, the Board adopted the ALJ’s recommended decision and voted unanimously to issue a letter of reprimand.  The nurse-member position of the Board was vacant at that time.  The other eleven members of the Board were present at the meeting.

Kahn subsequently filed a complaint for judicial review in the superior court and the court confirmed the Board’s decision.  Kahn timely appealed, arguing that the vacant position precluded the Board from taking disciplinary action against him and that Coffer could not offer standard of care testimony against him because she did not satisfy the expert witness qualifications set forth in A.R.S. § 12-2604.

The Arizona Court of Appeals summarily rejected Kahn’s contention that the Board could not take disciplinary action against him.  A.R.S. § 32-1404(B) authorizes the Board to “take any action” by “[a] majority vote of the quorum.”  By statute, the “presence of seven board members at a meeting constitutes a quorum.”  Id.  Because there were eleven members of the Board present in the meeting and they unanimously voted to issue the letter of reprimand, the Board acted within its statutory authority.

The Court also rejected the contention that Coffer could not testify pursuant to A.R.S. § 12-2604(A), which dictates qualifications for expert witnesses in medical malpractice action,  because there is nothing in A.R.S. § 32-1401 to suggest that Board disciplinary proceedings are subject to § 12-2604(A).  By its terms, A.R.S. § 12-2604(A) only applies to “action[s] alleging medical malpractice”, which the legislature has defined “medical malpractice action” as one “for injury or death against a licensed health care provider.”  A.R.S. § 12-561(2).  The Court concluded that the requirements set forth in A.R.S. § 12-2604 do not apply in the Board’s disciplinary proceedings because they simply do not fall within this definition. 

Judge Downie authored the opinion; Judges Portley and Hall concurred.