Biliack v. Superior Court

754 P.2d 1372, 157 Ariz. 97, 1 Ariz. Adv. Rep. 47, 1988 Ariz. App. LEXIS 41
CourtCourt of Appeals of Arizona
DecidedFebruary 11, 1988
DocketNo. 1 CA-SA 298
StatusPublished

This text of 754 P.2d 1372 (Biliack v. Superior Court) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Biliack v. Superior Court, 754 P.2d 1372, 157 Ariz. 97, 1 Ariz. Adv. Rep. 47, 1988 Ariz. App. LEXIS 41 (Ark. Ct. App. 1988).

Opinion

OPINION

HAIRE, Chief Judge.

This is a special action review of two orders relating to the taking of the deposition of the petitioner, who is a defendant in a medical malpractice action. The first order was issued by the respondent Judge Stover (the trial judge), and the second was issued by the respondent Judge Gerber, serving as the Chairman of the Medical Liability Review Panel to which the action was referred (the panel judge). Two issues are presented:

(1) Did the trial judge- abuse her discretion in ruling that the real parties in interest could take the petitioner’s deposition before they answered his interrogatory request for information concerning the specific nature of the claims against him?
(2) Was it an abuse of discretion under the circumstances of this case for the panel judge to refuse to compel the plaintiffs to comply with the rules of the medical liability review panel, which require a plaintiff to file a preliminary statement of claims?

The record shows that on September 11, 1987, the real parties in interest, the Mu-sils, served the petitioner, Dr. Biliack, with a complaint alleging that he had committed medical malpractice. The complaint was accompanied by a notice which stated that Dr. Biliack’s deposition would be taken on October 26, 1987. On October 6, 1987, Dr. Biliack served the Musils with nonuniform interrogatories, some of which asked them to identify the specific acts of malpractice alleged. On the same day, Dr. Biliack filed a motion for protective order in which he contended that before he was deposed, he was entitled to have his interrogatories answered so that he would have more specific information concerning the claims against him than that provided by the complaint’s general allegations of negligence. On October 21, 1987, the trial judge denied the motion and ruled that the Musils were entitled to take all of the depositions that were then scheduled at least one week before the date on which the Musils’ answers to the defendants’ discovery requests were due.

Eight days before the trial judge issued her order, the case had been referred to a medical liability review panel in accordance with the provisions of the Medical Malpractice Act, A.R.S. §§ 12-561 to 12-570 (hereinafter “the Act”). The Act requires that a medical malpractice action be referred to a panel within 20 days after the defendant’s time to answer expires. A.R.S. § 12-567(A) (Supp.1987). In the present case, the referral to the panel took place on October 13, 1987, which was within the 20 day period prescribed by the Act.

Rule 3 of the Uniform Rules of Procedure for Medical Liability Review Panels, 17-A A.R.S., governs the initial obligations of the parties in proceedings before a panel. In pertinent part, the rule provides as follows:

[99]*99Rule 3. Procedure Prior to Hearing
“A. Exchange of Records
“(1) Within three (3) days of receiving notice that the action has been referred to the panel, plaintiff shall serve upon defendant copies of all of plaintiffs medical records pertaining to the condition which is the subject matter of the action.
“(2) Within ten (10) days from the date of service by plaintiff of his records, defendant shall serve upon plaintiff copies of all of defendant’s records relative to the treatment of plaintiff.
“B. Plaintiff’s Preliminary Statement of Claim. Within five (5) days from the date of receipt of the above records, plaintiff shall serve upon defendant a complete and detailed description of the acts or omissions constituting medical negligence, a complete and detailed description of each act or procedure which plaintiff alleges defendant should have undertaken but did not and a description of the manner in which defendant’s acts or omissions caused injury to plaintiff. Plaintiff shall not be limited in further discovery by the statements contained therein but in the absence of a timely amendment, the evidence at the hearing shall be limited to the matters described in the preliminary statement.”

As previously noted, Dr. Biliack’s motion for protective order was filed before the action was referred to the panel. The referral took place on October 13, 1987. Eight days later, on October 21, 1987, the trial judge denied the motion for a protective order and ruled that the Musils were entitled to proceed with the discovery that was scheduled at least one week before their answers to the defendants’ discovery requests were due.

On the same day that the trial judge issued her order, Dr. Biliack complied with Rule 3(A)(2) by serving the Musils with copies of his records concerning Mrs. Mu-sil’s treatment. He then asked the Musils to comply with Rule 3(B) by serving him with a preliminary statement of their claims. On October 23, 1987, the Musils informed Dr. Biliack of their refusal to comply with Rule 3(B), contending that the trial judge’s order of October 21 superseded the rule’s requirements.

Dr. Biliack then filed a motion to compel the Musils to submit the preliminary statement of their claims required by the medical liability review panel rules. In accordance with the panel rules, this motion was heard by the superior court judge who was serving as the chairman of the medical liability review panel to which the case had been referred. The panel judge denied Dr. Biliack’s motion to compel and held that the Musils would not be required to file a preliminary statement of their claims until seven days after they had taken the deposition of Dr. Biliack. In his minute entry order, the panel judge noted that prior to denying the motion, he had conferred with the trial judge who had issued the order of October 21.

As previously noted, in this petition for special action Dr. Biliack contends that initially the trial judge erred in denying his motion for protective order, and that subsequently the panel judge erred in entering his later order denying the motion to compel compliance with Rule 3(B), Rules of. Procedure for the Medical Liability Review Panel, 17A A.R.S.

THE TRIAL JUDGE’S ORDER

Substantial questions are raised concerning whether the trial judge exceeded her authority by ruling or otherwise abused her discretion by denying Dr. Biliack’s motion for a protective order. However, we find it unnecessary to rule on these questions in view of our subsequent discussion.

THE PANEL JUDGE’S ORDER

Dr. Biliack contends that the provisions of Rule 3 expressly required the Musils to serve him with their preliminary statement of claims within five days after they received his medical records and that the panel judge erred in refusing to require the Musils to comply with the rule. We agree.

[100]*100Arizona Revised Statutes § 12-567(D) (Supp.1987) provides in part that malpractice actions “shall be submitted to the panel under such procedural rules as may be established by the Arizona supreme court.” The scheme established by the rules clearly requires that the procedures prior to the panel’s hearing on the merits take place in the order delineated by Rule 3.

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Related

Daou v. Harris
678 P.2d 934 (Arizona Supreme Court, 1984)
Gurr v. Willcutt
707 P.2d 979 (Court of Appeals of Arizona, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
754 P.2d 1372, 157 Ariz. 97, 1 Ariz. Adv. Rep. 47, 1988 Ariz. App. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biliack-v-superior-court-arizctapp-1988.