FILED BY CLERK IN THE COURT OF APPEALS JAN 31 2007 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
DALE GORNEY, ) ) 2 CA-CV 2006-0075 Plaintiff/Appellant, ) DEPARTMENT B ) v. ) OPINION ) JOHN MEANEY; RINCON ) ORTHOPEDIC ASSOCIATES, P.C., ) ) Defendants/Appellees. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C-20051862
Honorable Leslie Miller, Judge
AFFIRMED
Herbert Beigel & Associates By Herbert Beigel Tucson Attorneys for Plaintiff/Appellant
Slutes, Sakrison & Hill, P.C. By David E. Hill Tucson
and
Jones, Skelton & Hochuli, P.L.C. By Eileen Dennis Gilbride Phoenix Attorneys for Defendants/Appellees
E S P I N O S A, Judge. ¶1 Plaintiff/appellant Dale Gorney appeals from the trial court’s grant of summary
judgment in favor of Dr. John Meaney and Rincon Orthopedic Associates, P.C. (“Meaney”)
after finding Gorney had not complied with the expert witness requirements of A.R.S. § 12-
2603. On appeal, Gorney argues the court misinterpreted the requirements of § 12-2603 and
improperly granted summary judgment. We affirm.
Factual and Procedural Background
¶2 On appeal from a summary judgment, we view the evidence and all legitimate
inferences therefrom in the light most favorable to the party against whom summary
judgment was granted. Wilson v. Playa de Serrano, 211 Ariz. 511, ¶ 2, 123 P.3d 1148, 1149
(App. 2005). In October 1998, Meaney performed arthroscopic surgery on Gorney’s left
knee. In April 2005, Gorney sued Meaney for medical malpractice, alleging Meaney had
“failed to inform [him] of the material risks of the surg[ery]” 1 and the surgery had caused his
“condition to worsen.” Meaney answered that he had informed Gorney of all material risks
associated with the surgery. In July 2005, Meaney moved to dismiss the complaint on the
grounds Gorney had failed to certify whether expert testimony was needed to prove his claim
and had thereby violated the requirements of § 12-2603(A). Prior to oral argument on the
1 Although the first count of Gorney’s complaint is entitled “Battery,” in the context of lawsuits against health care providers, Arizona courts distinguish between “battery,” an intentional tort where the provider performs a medical procedure to which the patient has not consented, and “lack of informed consent,” where the provider does not adequately disclose the risks and alternative treatments prior to performing the procedure. See Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, ¶ 11, 70 P.3d 435, 438-39 (2003). Gorney’s allegations amount to “lack of informed consent,” were treated as such below, and will be so treated on appeal.
2 motion, Gorney certified that his claim required expert testimony. At oral argument, the
court gave Gorney until September 2005 to obtain an expert opinion affidavit to support his
claim.
¶3 In late September, Gorney provided Meaney an expert opinion affidavit from
Dr. Roy Gettel, who opined that “[p]rior to performing an arthroscopic surgery, [a] doctor
must inform the patient of the risks of the surgery,” and failure to do so “constitutes a breach
of the applicable standard of care.” In December 2005, Meaney moved for summary
judgment, claiming this affidavit did not conform to the requirements of § 12-2603(B). Soon
thereafter, Gorney provided a second affidavit from Gettel, which listed several treatment
alternatives to arthroscopic surgery and stated “discussion should be made with the patient
so that he has a complete understanding of the various treatment [options] available.” After
oral argument, the trial court granted Meaney’s motion for summary judgment.
Preliminary Expert Opinion Testimony
¶4 Gorney contends the trial court’s grant of summary judgment was based on an
erroneous interpretation of § 12-2603(B). Because Gorney’s argument involves the
interpretation of a statute and a question of law, we review the trial court’s judgment de novo.
See Dressler v. Morrison, 212 Ariz. 279, ¶ 11, 130 P.3d 978, 980 (2006). In interpreting
statutes, we first examine the plain language of the provisions involved. Nordstrom v.
Cruikshank, 213 Ariz. 434, ¶ 14, 142 P.3d 1247, 1252 (App. 2006). When a statutory
provision is clear on its face and is logically capable of only one interpretation, we give effect
to that language and apply it without using other means of statutory construction, unless
3 applying the literal language would lead to an absurd result. Arpaio v. Steinle, 201 Ariz. 353,
¶ 5, 35 P.3d 114, 116 (App. 2001).
¶5 Section 12-2603(A) requires plaintiffs alleging medical malpractice to certify
whether expert testimony will be needed to prove their claims. If so, the plaintiff must
provide the defendant, within forty days of the defendant’s responsive pleading, an expert
opinion affidavit that supports the claim. § 12-2603(B). This affidavit “shall contain at least
the following information”:
1. The expert’s qualifications to express an opinion on the health care professional’s standard of care or liability for the claim.
2. The factual basis for each claim against a health care professional.
3. The health care professional’s acts, errors or omissions that the expert considers to be a violation of the applicable standard of care resulting in liability.
4. The manner in which the health care professional’s acts, errors or omissions caused or contributed to the damages or other relief sought by the claimant.
Id.
¶6 The first provision of the statute is not at issue on appeal; Meaney does not
challenge Gettel’s expert qualifications, and the first affidavit stated that Gettel’s curriculum
vitae was attached, although it is not in the record before us. Below, Meaney argued
Gorney’s expert opinion affidavits failed to “offer an opinion as to whether Dr. Meaney
violated the applicable standard of care” and did “not state whether Dr. Meaney’s care was
the proximate cause of [Gorney’s] injury,” as required by the statute. The trial court agreed
4 and found Gorney had “failed to submit an affidavit in compliance with A.R.S. § 12-2603.”
On appeal, Gorney contends that informed consent claims are materially different from other
medical malpractice claims, and despite the seemingly unambiguous requirements of the
statute, the second, third, and fourth provisions of § 12-2603 (hereafter the “factual basis,”
“breach of duty,” and “causation” provisions) should not be literally applied. For the reasons
expressed below, we do not agree.
“Factual Basis” and “Breach of Duty”
¶7 The “factual basis” and “breach of duty” provisions of § 12-2603(B) require
a plaintiff’s expert to state the factual basis for the plaintiff’s claims and list those acts the
expert has determined fell below the applicable standard of care. § 12-2603(B)(2) and (3).
Gorney argues that an expert in an informed consent case can have no personal knowledge
of whether a patient was given adequate disclosure prior to the procedure—the expert can
only know the facts as related by the patient—and is therefore unable to describe the
defendant’s actions and state they fell below the standard of care. Thus, Gorney maintains,
for claims based on a lack of informed consent, the “factual basis” and “breach of duty”
provisions of § 12-2603 should only require the expert to “(a) define the standard of care, to
wit, the risks that should be told the patient” and state that “(b) failure to so inform the
plaintiff would constitute a violation of the standard of care.” To hold otherwise, he argues,
would be tantamount to the expert’s improperly finding facts and testifying about matters of
credibility, matters exclusively reserved for the jury. See Estate of Reinen v. N. Ariz.
5 Orthopedics, Ltd., 198 Ariz. 283, ¶ 12, 9 P.3d 314, 318 (2000) (evaluating credibility of
witnesses particularly within province of jury).
¶8 Arizona courts have not yet addressed the requirements of § 12-2603;
therefore, it is useful to look to other states with similar statutes. Arizona is among several
states that have enacted legislation attempting to curb frivolous medical malpractice lawsuits
by imposing a stricter standard of pleading and setting deadlines for the early involvement
of the plaintiff’s expert witness.2 One state, Illinois, created a special exception to its more
stringent pleading requirements for informed consent claims. Generally, Illinois requires
plaintiffs’ attorneys to attach to any complaint alleging medical malpractice an affidavit
stating the attorney has consulted with a health care professional who “has determined in a
written report . . . there is a reasonable and meritorious cause for filing of such action.” 735
Ill. Comp. Stat. Ann. 5/2-622(a)(1) (2005). For informed consent claims, however, the
attorney must only submit an affidavit stating an expert has “concluded that a reasonable
health professional would have informed the patient of the consequences of the procedure.”
Id. at 5/2-622(d). Although not mentioned by Gorney, we note this provision is consistent
with his argument for interpreting § 12-2603(B)(2) and (3).
2 Other states that have enacted such legislation include Colorado, Florida, Georgia, Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, and North Dakota. See Colo. Rev. Stat. § 13-20-602 (2005); Fla. Stat. § 766.104 (2002); Ga. Code Ann. § 9-11-9.1 (2006); Mich. Comp. Laws Ann. § 600.2912b (2000); Minn. Stat. § 145.682 (2004); Mo. Ann. Stat. § 538.225 (2005); Nev. Rev. Stat. 41A.071 (2002); N.J. Stat. Ann. § 2A:53A-27 (2004); N.Y. C.P.L.R. 3012-a(c) (McKinney 1991); N.D. Cent. Code § 28-01-46 (2005).
6 ¶9 But Illinois’s exception for informed consent claims was statutorily created.
Section 12-2603 creates no such exception; indeed, the absence of any such language in our
statute suggests Arizona’s legislature did not intend to make one. See City of Tempe v.
Fleming, 168 Ariz. 454, 457, 815 P.2d 1, 4 (App. 1991) (courts may not read into statutes
something the legislature has not put there). Most states do except from their heightened
pleading requirements for medical malpractice cases those claims that will not require expert
testimony at trial.3 Section 12-2603(A), too, excepts plaintiffs from providing an expert
opinion affidavit where expert testimony will not be necessary at trial. Gorney certified,
however, that such testimony would be required.
¶10 Where an expert must provide an affidavit attesting to facts of which the expert
does not have personal knowledge, several states require that expert to simply accept the
facts as alleged by the plaintiff. In Georgia, for example, “[a]n expert affidavit . . . need not
be based upon the affiant’s actual personal knowledge.” Dozier v. Clayton County Hosp.
Auth., 424 S.E.2d 632, 638 (Ga. Ct. App. 1992). Instead, “the affiant may base his expert
opinion upon an assumption that the factual allegations of the complaint are true[,] . . . just
as he could base his expert opinion at trial upon an assumption of the truth of the evidence
adduced to support those allegations.” Id. The affidavit need only state “‘that, in his expert
3 See, e.g., Colo. Rev. Stat. § 13-20-602 (2005) and Minn. Stat. § 145.682 (2004) (expert testimony required only where necessary to establish prima facie case); Hubbard ex rel. Hubbard v. Reed, 774 A.2d 495, 501 (N.J. 2001) (“There is a common knowledge exception to [New Jersey’s] Affidavit of Merit Statute . . . .”); N.Y. C.P.L.R. 3012-a(c) (McKinney 1991) (no affidavit required “[w]here the attorney intends to rely solely on the doctrine of ‘res ipsa loquitur’”).
7 opinion, such facts, if true, would constitute professional malpractice.’” Id., quoting
Druckman v. Ethridge, 401 S.E.2d 336, 337 (Ga. Ct. App. 1991). Similarly, in Minnesota,
an expert’s affidavit may rely on “the acts or omissions that the plaintiff alleges violated the
standard of care.” Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 428 (Minn. 2002)
(emphasis added).
¶11 The plain language of § 12-2603(B)(2) and (3) is clear on its face and logically
capable of only one interpretation. For all medical malpractice claims that will require expert
testimony at trial, including informed consent claims, the plaintiff’s expert must state the
“factual basis for each claim” and the “acts, errors or omissions that the expert considers to
be a violation of the applicable standard of care.” We agree with the trial court that neither
of Gettel’s affidavits meets these requirements. Neither describes what disclosures, if any,
Meaney made to Gorney concerning the risks prior to performing the surgery. And neither
affidavit states that Meaney’s actions fell below the accepted standard of care. We find that
where an expert does not have personal knowledge of the facts of the case, § 12-2603(B)(2)
and (3) require that the expert base an opinion on the facts as alleged by the plaintiff and state
that these facts, if true, violate the accepted standard of care.4 Thus, Gettel’s affidavits
4 We note the ostensible tension between our holding here and Rule 56(e), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, which states “[s]upporting and opposing affidavits shall be made on personal knowledge.” But an expert is permitted to testify in the form of an opinion, see Ariz. Rule Evid. 702, 17A A.R.S., and § 12-2603 merely requires an expert to attest to his or her opinion, informed by the body of his or her personal knowledge as an expert, as to whether the defendant’s actions as they are alleged by the plaintiff constitute medical malpractice. Thus, Rule 56(e) does not prevent an appropriate affidavit from addressing the elements of § 12-2603.
8 should have listed what disclosures Meaney made to Gorney prior to performing the surgery,
based upon the facts as alleged by Gorney. Gettel should have then stated whether these
disclosures were inadequate and fell below the standard of care.
¶12 This conclusion is consistent with the legislature’s express purpose of
“curtail[ing] the filing of frivolous lawsuits against health care professionals.” 2004 Ariz.
Sess. Laws, ch. 4, § 2. To effectively evaluate the merits of a lawsuit, an expert must be fully
aware of the facts alleged by the plaintiff. There would be no check on the filing of frivolous
claims if an expert were permitted to simply recite a standard of care and generally state that
failure to meet the standard constitutes malpractice. Under such an interpretation,
meritorious and frivolous cases alike could be prosecuted without passing any meaningful
scrutiny by an expert. Therefore, we reject Gorney’s proposed interpretation of
§ 12-2603(B)(2) and (3). Instead, we hold an expert must apply the facts of the particular
case at hand to the applicable standard of care and issue an opinion as to whether the
defendant’s specific actions met or fell short of that standard. See generally Pendleton v.
Cilley, 118 Ariz. 84, 86, 574 P.2d 1303, 1305 (1978) (“[A] physician’s negligence must be
shown by expert medical testimony . . . .”).
“Causation”
¶13 Gorney next contends that the “causation” provision of § 12-2603(B)(4) need
not be addressed by an expert opinion affidavit in an informed consent claim because “the
injury of proceeding with a surgery at all in the absence of informed consent is established
9 without regard to expert testimony.” Meaney responds that § 12-2603 makes no exception
from its requirements for claims based on lack of informed consent.
¶14 We again disagree with Gorney’s proposed interpretation of § 12-2603.
Contrary to Gorney’s assertion, a medical procedure performed without informed consent
does not, in itself, proximately cause an actionable injury to a plaintiff; rather, a plaintiff
must show he or she has suffered some injury as a result of the undisclosed risk. See Hales
v. Pittman, 118 Ariz. 305, 311, 576 P.2d 493, 499 (1978) (“failure of a physician to disclose
a known risk does not, standing alone, constitute sufficient grounds for a malpractice action”;
occurrence of risk must be harmful to patient since negligence unrelated to injury is
nonactionable).
¶15 Traditionally, plaintiffs alleging lack of informed consent must show two types
of causation: 1) adequate disclosure would have caused the plaintiff to decline the treatment,
and 2) the treatment proximately caused injury to the plaintiff. See Shetter v. Rochelle,
2 Ariz. App. 358, 367, 409 P.2d 74, 83 (1965); William L. Prosser and W. Page Keeton, The
Law of Torts § 32, at 191 5th ed. (1984); see also Hales, 118 Ariz. at 311, 576 P.2d at 499;
McGrady v. Wright, 151 Ariz. 534, 537, 729 P.2d 338, 341 (App. 1986); Gurr v. Willcutt,
146 Ariz. 575, 581, 707 P.2d 979, 985 (App. 1985). Expert testimony is not required for the
first type of causation because it is plainly a matter to which plaintiffs themselves could
testify and is within the knowledge of the average layperson. See generally Adams v. Amore,
182 Ariz. 253, 895 P.2d 1016 (App. 1994) (function of expert witness is to provide testimony
10 on subjects beyond common sense, experience, or education of average person, and expert
testimony is inappropriate if jury can determine issue without such testimony).
¶16 Expert testimony is required, however, to demonstrate that the treatment
proximately caused injury to the plaintiff. Gregg v. Nat’l Med. Health Care Servs., Inc., 145
Ariz. 51, 54, 699 P.2d 925, 928 (App. 1985) (generally, expert medical testimony is required
to establish proximate cause). Such testimony helps to ensure that the plaintiff’s alleged
injury was not caused by the progression of a pre-existing condition or was the result of some
other cause, such as natural aging or a subsequent injury. This, again, is in keeping with the
legislature’s intent to curtail frivolous medical malpractice claims. See 2004 Ariz. Sess.
Laws, ch. 4, § 2. Thus, Gorney’s expert opinion affidavit should have stated that the surgery
proximately caused an injury to Gorney, e.g., the “worsen[ed]” condition in Gorney’s knee.5
Because it did not, the trial court properly found the requirements of § 12-2603(B)(4) were
not met.
Lack of Statement of Facts
¶17 Gorney lastly argues the trial court should have either struck or denied
Meaney’s motion for summary judgment because it did not include a statement of facts, as
5 We note that Meaney attached to his answering brief an affidavit by Dr. Gettel that states “the removal of the meniscus in [Gorney’s] knee caused him to have degenerative arthritis and medial collapse.” Both parties refer to this affidavit in their briefs, and the affidavit would seemingly satisfy the “causation” provision of A.R.S. § 12-2603. The above- quoted language, however, is not part of the affidavit that is in the record on appeal. Thus, that language cannot be considered. See Crook v. Anderson, 115 Ariz. 402, 403-04, 565 P.2d 908, 909-10 (App. 1977) (on appeal from summary judgment, parties cannot produce new affidavits to secure reversal of lower court’s determination).
11 required by Rule 56(c)(2), Ariz. R. Civ. P., 16 A.R.S., Pt. 2. Generally, summary judgment
is proper “if the pleadings, deposition[s], answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact.” Ariz. R. Civ. P. 56(c)(1). Summary judgment is also appropriate when a plaintiff fails
to establish a prima facie case. Hydroculture, Inc. v. Coopers & Lybrand, 174 Ariz. 277,
283, 848 P.2d 856, 862 (App. 1992).
¶18 Rule 56(c)(2) states that “[a]ny party filing a motion for summary judgment
shall set forth, separately from the memorandum of law, the specific facts relied upon in
support of the motion.” Gorney argues he was disadvantaged in his ability to show the
existence of genuine issues of material fact because Meaney failed to comply with this rule.
Meaney does not deny that his motion lacked a statement of facts, but argues that one was
not required in this case and nothing in Rule 56 indicates that failure to provide one is a
ground for denial of a motion.
¶19 We agree that a trial court need not deny a motion for summary judgment for
the sole reason it is not supported by a statement of facts. Although a statement of facts is
especially useful when a court must sort through myriad factual contentions, it may be less
so when a defendant seeks summary judgment on the ground the plaintiff has failed to
comply with statutory requirements or establish a prima facie case, as was the case here.
¶20 Gorney certified that expert testimony was required to support his claim;
therefore, he was required to provide such testimony to establish a prima facie case. See
Gregg, 145 Ariz. at 54, 699 P.2d at 928 (ordinarily, expert medical testimony required to
12 make prima facie case of medical malpractice). Summary judgment was appropriate when
Gorney failed to provide an adequate expert opinion affidavit. See Hydroculture, Inc., 174
Ariz. at 283, 848 P.2d at 862 (defendant may obtain summary judgment when plaintiff
unprepared to establish prima facie case). Accordingly, we do not find the trial court erred
in granting Meaney’s motion for summary judgment, even in the absence of a statement of
facts. See McGuire v. DeFrancesco, 168 Ariz. 88, 90, 811 P.2d 340, 342 (App. 1990) (in
response to motion for summary judgment, medical malpractice plaintiff must show expert
testimony available to establish health care provider’s treatment fell below applicable
standard of care).
Disposition
¶21 For all the foregoing reasons, the judgment in favor of Meaney is affirmed.
PHILIP G. ESPINOSA, Judge
CONCURRING:
PETER J. ECKERSTROM, Presiding Judge
J. WILLIAM BRAMMER, JR., Judge