Opinion
No. 1 CA-CV 17-0146
02-15-2018
JESUS MUNIZ, Plaintiff/Appellant, v. JOHN DOE NURSE ANDERSON, CORRECTIONAL HEALTHCARE COMPANIES, INC., Defendants/Appellees.
COUNSEL Jesus Muniz, Tucson Plaintiff/Appellant Lewis Brisbois Bisgaard & Smith, LLP, Phoenix By James K. Kloss, Venus G. Booth Counsel for Defendant/Appellee Correctional Healthcare Companies, Inc.
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Mohave County
No. S8015CV201600456
The Honorable Richard Weiss, Judge
REVERSED AND REMANDED
COUNSEL
Jesus Muniz, Tucson
Plaintiff/Appellant
Lewis Brisbois Bisgaard & Smith, LLP, Phoenix
By James K. Kloss, Venus G. Booth
Counsel for Defendant/Appellee Correctional Healthcare Companies, Inc.
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge James P. Beene and Judge Randall M. Howe joined.
CATTANI, Judge:
¶1 Jesus Muniz appeals the superior court's dismissal of his medical malpractice lawsuit based on the court's finding that Muniz submitted an insufficient preliminary expert opinion affidavit under Arizona Revised Statutes ("A.R.S.") § 12-2603. For reasons that follow, we reverse and remand.
FACTS AND PROCEDURAL BACKGROUND
¶2 Muniz brought a medical malpractice claim against Correctional Healthcare Companies, Inc. ("CHC"), alleging its nurse was negligent in administering Muniz an improper dose of insulin. Muniz's complaint included a signed affidavit asserting that expert testimony was not required to prove his negligence claim. CHC moved for an order compelling Muniz to serve a preliminary expert opinion affidavit. The superior court concluded that expert testimony was necessary and ordered Muniz to obtain and serve an expert opinion affidavit in compliance with A.R.S. § 12-2603(D).
¶3 Muniz timely served a preliminary expert opinion affidavit stating that his own experience taking insulin qualified him to be his own expert witness. The superior court stated this affidavit would be sufficient unless CHC filed a response arguing otherwise. CHC subsequently moved to dismiss Muniz's claim, arguing that the affidavit was insufficient under A.R.S. § 12-2603(B). Muniz then requested an extension of time to cure the deficiencies by obtaining a new preliminary expert opinion affidavit.
¶4 The superior court denied Muniz's request for additional time and granted CHC's motion to dismiss. Muniz timely appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(1).
DISCUSSION
¶5 We review de novo dismissal for failure to serve a preliminary expert opinion affidavit required under A.R.S. § 12-2603. Boswell v. Fintelmann, 242 Ariz. 52, 54, ¶ 5 (App. 2017).
¶6 To the extent Muniz argues that the affidavit he submitted was sufficient under § 12-2603, we disagree. Under § 12-2603(B), the preliminary expert opinion affidavit must contain (1) the expert's qualifications, (2) the factual basis for the claim, (3) the acts or omissions the expert considers to be a violation of the applicable standard of care, and (4) the manner in which the violation of the standard of care caused damages. Here, because Muniz's affidavit contained only his assertion that he was qualified as an expert because of his experience taking insulin, the affidavit was insufficient as to the first requirement. See A.R.S. § 12-2604(A) (requiring that the standard of care expert in a medical malpractice case be "licensed as a health professional," among other criteria). Furthermore, the affidavit did not address the other three requirements under § 12-2603(B). Thus, the superior court properly ruled that the affidavit was insufficient.
¶7 Muniz further argues that the superior court erred by dismissing his complaint rather than granting his request for additional time. Dismissal is proper if a party fails to file a preliminary expert opinion affidavit when ordered to do so by the court. A.R.S. § 12-2603(F). But if an affidavit is filed and is found to be insufficient, the court "shall allow any party a reasonable time to cure any affidavit." A.R.S. § 12-2603(F). The opportunity to cure any affidavit includes substituting a fatally deficient affidavit with one meeting the requirements of § 12-2603(B). See Rasor v. Northwest Hosp., LLC, 243 Ariz. 160, 165, ¶ 24 (2017) (referring to § 12-2603(F) as the "automatic substitution-of-expert provision").
¶8 Here, Muniz timely filed his proposed preliminary expert opinion affidavit. CHC moved for dismissal alleging the affidavit was insufficient. Instead of directly responding to CHC's motion, Muniz requested additional time to cure the deficiencies of his original affidavit, and under § 12-2603, he was entitled to do so even if curing the deficiency required substituting a qualified expert for the originally proposed expert. Accordingly, the superior court erred by not allowing Muniz a reasonable time to cure the deficiencies of his preliminary expert opinion affidavit.
CONCLUSION
¶9 For the foregoing reasons, we reverse and remand for proceedings consistent with this decision.