Opinion
1 CA-CV 20-0590
05-10-2022
AFRIM RRUKIQI, et al., Plaintiffs/Appellants, v. UNLIMITED DENTISTRY, LLC, et al., Defendants/Appellees.
Gary L. Thomas, Attorney at Law, Phoenix By Gary L. Thomas Counsel for Plaintiffs/Appellants Broening Oberg Woods & Wilson PC, Phoenix By Katherine M. Corcoran, Kelley M. Jancaitis, Leah E. Schachar Counsel for Defendant/Appellee Dr. Ben Cooperman Jeffrey J. Tonner, PC, Phoenix By Jeffrey J. Tonner Counsel for Defendant/Appellee Unlimited Dentistry
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2019-010111 The Honorable Danielle J. Viola, Judge
REVERSED AND REMANDED
Gary L. Thomas, Attorney at Law, Phoenix By Gary L. Thomas Counsel for Plaintiffs/Appellants
Broening Oberg Woods & Wilson PC, Phoenix By Katherine M. Corcoran, Kelley M. Jancaitis, Leah E. Schachar Counsel for Defendant/Appellee Dr. Ben Cooperman
Jeffrey J. Tonner, PC, Phoenix By Jeffrey J. Tonner Counsel for Defendant/Appellee Unlimited Dentistry
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Cynthia J. Bailey and Judge D. Steven Williams joined.
MEMORANDUM DECISION
SWANN, JUDGE
¶1 This appeal arises from the superior court's dismissal of a medical malpractice suit for failure to file a preliminary expert affidavit. For the following reasons, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
¶2 Between August 2017 and October 2018, Afrim Rrukiqi received dental care from Ben Cooperman, DMD ("Dr. Cooperman"), and Erik Unger, DDS ("Dr. Unger"). For the period relevant to this suit, both dentists were employees of Happy Valley Smiles, LLC ("Happy Valley"), Unlimited Dentistry Goodyear, LLC ("UDG"), Unlimited Dentistry Avondale, LLC ("UDA"), and Unlimited Dentistry, LLC ("UD"). We refer to Happy Valley, UDG, UDA, and UD collectively as "Corporate Defendants."
¶3 Rrukiqi commenced this action in June 2019, alleging Drs. Unger and Cooperman negligently performed surgical procedures, caused Rrukiqi to suffer continuing dental pain, and failed to diagnose and treat these dental issues. On August 1, 2019, Dr. Cooperman moved for an order declaring expert testimony necessary pursuant to A.R.S. § 12-2603(D) and requiring Rrukiqi to file a preliminary expert witness affidavit in compliance with A.R.S §§ 12-2603 and -2604.
¶4 In his response, Rrukiqi requested a ninety-day extension in which to comply with the preliminary expert opinion requirement. One week later, Rrukiqi informed the court he had retained an expert, but to provide an opinion, this expert needed his medical records. Rrukiqi's former attorney had demanded these records from Dr. Cooperman's counsel in March 2019, and again in May. Both letters had gone unanswered. Rrukiqi then requested that the court grant him an additional sixty days to comply with the preliminary expert requirement, conditioned upon Dr. Cooperman providing the medical records.
¶5 In his pleadings and Rule 26.3 disclosure, Dr. Cooperman stated that he was an independent contractor and therefore did not maintain Rrukiqi's treatment records. Dr. Cooperman moved to dismiss Rrukiqi's case for failure to produce a preliminary expert affidavit.
¶6 On August 30, 2019, the superior court ordered Rrukiqi to file an expert affidavit in compliance with A.R.S. § 12-2603 by October 4, 2019, noting that failure to do so could result in dismissal. On September 10, Rrukiqi filed a motion for reconsideration, requesting additional time to file a preliminary expert opinion. Rrukiqi argued that he needed his medical records to obtain an expert opinion, and as Dr. Unger and Corporate Defendants had just filed their notices of appearance, he intended to serve them with requests for production as soon as they filed their answers to the complaint. The court denied his motion and dismissed the claim the following month.
¶7 After the denial of several post-judgment motions, Rrukiqi filed a motion for final orders, which the superior court entered. Rrukiqi now appeals.
DISCUSSION
I. WE HAVE APPELLATE JURISDICTION UNDER A.R.S. § 12-2101(A)(3).
¶8 Though the parties did not raise the issue, we have an independent duty to determine whether we have jurisdiction over an appeal. McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, 74, ¶ 4 (App. 2009). Generally, a dismissal without prejudice is not a final judgment for purposes of appeal. Canyon Ambulatory Surgery Ctr. v. SCF Ariz., 225 Ariz. 414, 418-19, ¶ 14 (App. 2010). However, such judgments are appealable "when the timely filing of another suit is barred by the statute of limitations," id., as is the case here. We therefore have jurisdiction under A.R.S. § 12-2101(A)(3).
II. THE SUPERIOR COURT ERRED IN DISMISSING RRUKIQI'S CLAIM FOR FAILURE TO COMPLY WITH A.R.S. § 12-2603.
¶9 We review de novo the superior court's dismissal for failure to serve a preliminary expert opinion affidavit under A.R.S. § 12-2603. Boswell v. Fintelmann, 242 Ariz. 52, 54, ¶ 5 (App. 2017). We accept the facts in the complaint as true and view them in the light most favorable to the plaintiff. Johnson v. McDonald, 197 Ariz. 155, 157, ¶ 2 (App. 1999). The court must dismiss a claim for medical malpractice if the claimant "fails to file and serve a preliminary expert opinion affidavit" after being ordered to do so. A.R.S. § 12-2603(F). However, the superior court has the discretion to extend the § 12-2603 deadline "on application and good cause shown." A.R.S. § 12-2603(C).
¶10 The superior court ordered Rrukiqi to file a preliminary expert affidavit by October 4, 2019. Rrukiqi informed the court in multiple filings that his ability to obtain an expert opinion affidavit was dependent on defendants supplying him with his own medical records. Corporate Defendants were statutorily required to maintain Rrukiqi's medical records. A.R.S. § 12-2297(A)(1) (stating a health care provider must retain an adult patient's medical records for at least six years). Rrukiqi had unsuccessfully attempted to obtain his medical records from Corporate Defendants before filing suit.
¶11 On September 10-the day after counsel for Dr. Unger, Happy Valley, and UDG filed their notices of appearance- Rrukiqi moved for additional time to obtain medical records from these defendants. The court denied his motion without elaboration. On October 4, Rrukiqi filed his "Objection to Pending Dismissal of Case" in which he requested that the court order Dr. Unger and Corporate Defendants to produce his medical records. Instead, the court dismissed his case the following month for failure to file an expert affidavit and declared the outstanding filings moot.
¶12 A.R.S. § 12-2603(C) allows courts to extend the expert affidavit deadline for good cause and "adjust the timing and sequence of disclosures that are required" from the defendants. Rrukiqi's inability to obtain an expert affidavit because of an inability (through no fault of his own) to access medical records in defendants' custody is precisely the type of "good cause" the statute contemplates.
We acknowledge Dr. Cooperman's argument that he had no duty to maintain and furnish plaintiff's medical records. But while Dr. Cooperman may not have had the ability to furnish those records himself, we do not read the statute to penalize a patient whose records are made unavailable by a licensed professional's custodian. Such a reading would effectively transform concealment of records into a complete defense to liability, and the statute's provision for sequencing disclosures indicates a contrary legislative intent.
¶13 To be sure, the court granted Rrukiqi one extension, and he filed his request to compel discovery on October 4, the deadline for submitting his expert affidavit. But the time that elapsed was not caused by any lack of diligence on Rrukiqi's part, and Arizona courts have long recognized that dismissal of a case on procedural grounds is disfavored. Walker v. Kendig, 107 Ariz. 510, 512 (1971) ("[J]ustice requires that when possible a matter be determined upon its merits."). The superior court had the tools to remove Rrukiqi's obstacle to compliance-granting his request for extension and compelling the defendants to produce his medical records.
¶14 By denying Rrukiqi's request that the court order defendants to turn over his medical records, the court allowed defendants to generate their own cause for dismissal. In these circumstances, we hold the superior court abused its discretion in granting Dr. Cooperman's motion to dismiss.
III. THE SUPERIOR COURT MAY CONSIDER RRUKIQI'S APPLICATIONS FOR DEFAULT JUDGMENT.
¶15 On September 2, 2019, Rrukiqi filed applications for default judgment against UDG, Dr. Unger, and Happy Valley Smiles. As Rrukiqi had requested no specific dollar amount in his complaint, he was required to apply for a default hearing. Ariz. R. Civ. P. 55(b)(1)-(2). The court did not set a default hearing before dismissing the case. Defendants (other than Dr. Cooperman) argue that because the case was dismissed before a default was obtained, no default judgment is now possible.
¶16 Because we reverse the dismissal of this case, we need not address the merits of any default proceedings. On remand, the superior court is free to consider the applications for default on their merits.
CONCLUSION
¶17 The judgment is reversed, and the case remanded to the superior court for further proceedings.