Arizona Court of Appeals Division One holds that a dismissal for failure to file preliminary expert affidavits in a medical malpractice case is a dismissal for failure to prosecute under Arizona’s savings statute.

Arizona’s “savings statute” permits a plaintiff to refile terminated actions without regard to the statute of limitations in certain circumstances.  The statute contains a mandatory provision, which does not apply if the original action was dismissed for failure to prosecute, and a discretionary provision.

A patient sued a doctor for medical malpractice.  After receiving numerous extensions, the patient failed to serve preliminary expert affidavits as required by the applicable law.  The superior court dismissed the case without prejudice.  Several months later, and outside the applicable statute of limitations period, the patient refiled the suit.  The superior court dismissed the action, holding that the previous dismissal for failure to serve expert affidavits was a dismissal for failure to prosecute and declining to exercise the discretionary provision of the savings statute.  The patient appealed.

The Court of Appeals affirmed, agreeing with the superior court that dismissal for failure to serve expert affidavits is a dismissal for failure to prosecute.  The Court noted that a party’s failure to follow procedural requirements outlined in Arizona statutes creates an unreasonable delay, and that a resulting dismissal is a dismissal for failure to prosecute.  The Court of Appeals also held that, given the circumstances, the superior court did not abuse its discretion by failing to permit refiling under the discretionary provision of the savings statute.

Judge Swann delivered the unanimous opinion, in which Judges Orozco (retired) and Brown concurred.