JILLY v. Rayes

209 P.3d 176, 221 Ariz. 40, 555 Ariz. Adv. Rep. 33, 2009 Ariz. App. LEXIS 72
CourtCourt of Appeals of Arizona
DecidedApril 30, 2009
Docket1 CA-SA 08-0269
StatusPublished
Cited by6 cases

This text of 209 P.3d 176 (JILLY v. Rayes) 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
JILLY v. Rayes, 209 P.3d 176, 221 Ariz. 40, 555 Ariz. Adv. Rep. 33, 2009 Ariz. App. LEXIS 72 (Ark. Ct. App. 2009).

Opinion

OPINION

THOMPSON, Judge.

¶ 1 We herein uphold Arizona Revised Statutes (A.R.S.) § 12-2603 (2008), which provides that a plaintiff suing a health care professional is to certify whether or not expert opinion testimony is necessary to prove the health care professional’s standard of care or liability, and, if expert opinion testimony is necessary, requires service of a “preliminary expert opinion affidavit” with the initial disclosures, unless the court extends the time for compliance under certain circumstances. We therefore reverse the trial court’s judgment and direct further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 In February 2008, the plaintiffs filed a complaint in superior court alleging that the defendant doctors committed medical malpractice, causing the death of twenty-eight year old Cora Carter following cardiac surgery. In June 2008, the defendant doctors filed a motion to enforce, requesting the trial court to require the plaintiffs to comply with A.R.S. § 12-2603 by certifying whether expert testimony was necessary to prove the standard of care or liability issues in the case. The plaintiffs opposed the motion, arguing that the statute is unconstitutional because it infringes on the rulemaking authority of the A’izona Supreme Court. The trial court denied the defendants’ motion to enforce, and this special action followed. We accepted special action jurisdiction because this case presents an issue of statewide importance. See State ex rel. Woods v. Block, 189 Aiz. 269, 272, 942 P.2d 428, 431 (1997) (citations omitted).

DISCUSSION

¶3 Section 12-2603 provides, in relevant part:

A. If a claim against a health care professional is asserted in a civil action, the claimant or the party designating a non-party at fault or its attorney shall certify in a written statement that is filed and served with the claim or the designation of non-party at fault whether or not expert opinion testimony is necessary to prove the *42 health care professional’s standard of care or liability for the claim.
B. If the claimant ... certifies pursuant to subsection H of this section that expert opinion testimony is necessary, that party shall serve a preliminary expert opinion affidavit with the initial disclosures that are required by rule 26.1, Arizona rules of civil procedure. 1 ... The preliminary expert opinion 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.

Rule 16(c), Arizona Rules of Civil Procedure, entitled “Scheduling and Subject Matter at Comprehensive Pretrial Conferences in Medical Malpractice Cases,” provides that at the pretrial conference, the trial court will determine a schedule for the disclosure of standard of care and causation expert witnesses. The rule provides that “[ejxcept upon good cause shown, such disclosure shall be simultaneous and within 30 to 90 days after the conference, depending upon the number and complexity of the issues.”

¶ 4 We review de novo challenges to a statute’s constitutionality and “will not declare a statute unconstitutional unless we are ‘satisfied beyond a reasonable doubt’ that it conflicts with the federal or state constitutions.” Bertleson v. Sacks Tierney, P.A., 204 Ariz. 124, 126, ¶6, 60 P.3d 703, 705 (App.2002) (quoting Chevron Chem. Co. v. Superior Ct., 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982)). This court will give a statute a constitutional construction when it is possible to do so. Readenour v. Manon Power Shovel, 149 Ariz. 442, 445, 719 P.2d 1058, 1061 (1986) (citing Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 554, 637 P.2d 1053, 1057 (1981)).

¶ 5 In Bertleson, we held that a similar statute, A.R.S. § 12-2602 (2000), which required plaintiffs to disclose preliminary expert opinion evidence in cases against licensed professionals, was constitutional. 204 Ariz. at 129, ¶ 23, 60 P.3d at 708. In Bertleson, the plaintiffs similarly argued that the statute at issue was unconstitutional because it infringed on the Arizona Supreme Court’s rulemaking authority. Id. at 129, ¶ 20, 60 P.3d at 708. This court held that A.R.S. g 12-2602 did not conflict with our supreme court’s rulemaking power:

Nothing in A.R.S. g 12-2602 is. in conflict with or engulfs our supreme court’s rule-making power. Contrary to the Bertle-sons’ allegations, neither Rule 26.1 nor Rule 16(c) require disclosures at a time different than what is provided for in A.R.S. § 12-2602. The statute provides for disclosure of preliminary expert opinions — consistent with Rule 26.1(a) — at the ■time for serving disclosure statements in accordance with Rule 26.1(b)(1). The Rule 16(e) pretrial conference procedures for medical malpractice cases also pose no conflict. The current version of A.R.S. § 12-2602 supplements the procedural rules and does not violate the separation of powers clause.

Id. at ¶ 22 (citation omitted).

¶ 6 In this case, the trial court found that A.R.S. § 12-2603 directly conflicts with Arizona Rules of Civil Procedure 16(c) and 26.2(b). The court focused on Rule 16(c)’s provision for the simultaneous disclosure of. expert witnesses thirty to ninety days after the pretrial conference. However, although the tidal court found that A.R.S. § 12-2603

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Arnold v. Viewpoint
Court of Appeals of Arizona, 2024
Williamson v. O'Brien
397 P.3d 361 (Court of Appeals of Arizona, 2017)
Boswell v. Fintelmann
392 P.3d 496 (Court of Appeals of Arizona, 2017)
Romero v. Hasan
388 P.3d 22 (Court of Appeals of Arizona, 2017)
Kaufman v. Jesser
884 F. Supp. 2d 943 (D. Arizona, 2012)
Fred Nackard Land Co. v. City of Flagstaff
238 P.3d 149 (Court of Appeals of Arizona, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
209 P.3d 176, 221 Ariz. 40, 555 Ariz. Adv. Rep. 33, 2009 Ariz. App. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jilly-v-rayes-arizctapp-2009.