Arizona’s Medical Malpractice Procedural Rules Contain Traps for the Unwary

Medical malpractice procedural rules in Arizona require that a person filing a medical malpractice lawsuit certify in writing at the time of filing whether expert opinion will be necessary to prove the medical provider’s liability for the claimed injuries.  A.R.S. §12-2603(A).  In practice, expert opinion is necessary in the overwhelming majority of medical malpractice cases.  As a result, a second unique provision in Arizona law is triggered which requires a detailed expert opinion affidavit to be filed 40 days after the first defendant appears (files an Answer) in the case.  A.R.S. §-2603(B).  Both of these provisions, if not properly satisfied by the person filing the lawsuit, can have a significant negative impact on the case.

Failure to File the Expert Affidavit On-Time Can Result in Dismissal of the Lawsuit

Because medical malpractice claims are governed by a different set of rules than those that apply to other injury cases, individuals that file medical malpractice claims and/or their attorneys must understand and comply with these rules.  In fact, failure to comply with the expert opinion affidavit requirement will typically result in the case being dismissed.  Arizona law requires a judge to dismiss a case “without prejudice” when the expert opinion affidavit rule is not met.  A.R.S. §12-2603(F).  Because “without prejudice” means that the case can be re-filed to start the litigation process over, in some situations the effects of a dismissal under this rule can have only limited implications.  However, a dismissal “without prejudice” becomes catastrophic for the person filing the lawsuit if the limitations period (statute of limitations or time limit to file a lawsuit) has passed thus preventing the re-filing of the lawsuit.  In such a case, the injured person can be forever barred from pursuing the medical malpractice claim.  It is also important to note that based on current Arizona case law, a dismissal under A.R.S. §12-2603(F) can be very difficult to overturn on appeal.  See, e.g., Passmore v. McCarver, CA-CV 15-0420, filed 4/6/2017 (A dismissal for failure to serve a preliminary affidavit is a dismissal for lack of prosecution).

Know Your Rights

If you or someone you know has been injured as a result of a medical mistake, it is important that you contact an attorney that has the knowledge and experience to explain your rights and who understands the unique rules involved in medical malpractice claims.  If you have questions, call attorney Brian Allen at (480) 461-5335 or contact him at bta@udallshumway.com for a free consultation to discuss your rights and options.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Medical Malpractice Procedural Rules, or any other personal injury, please feel free to contact Brian T. Allen at  480.461.5335,  log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.