Romero v. Hasan

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DAVID ROMERO, Plaintiff/Appellant,

v.

KHALID S. HASAN, et al., Defendants/Appellees.

No. 1 CA-CV 15-0508
FILED 1-5-2017

Appeal from the Superior Court in Maricopa County
No. CV2014-095832
The Honorable Mark F. Aceto, Judge (Retired)

AFFIRMED

COUNSEL

David Romero, Queen Creek
Plaintiff/Appellant Pro Per

Holden & Armer PC, Tempe
By Scott A. Holden, Carolyn Armer Holden
Counsel for Defendants/Appellees
 ROMERO v. HASAN
Opinion of the Court

OPINION

Judge Jon W. Thompson delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Charles W. Gurtler, Jr. joined.1

T H O M P S O N, Judge:

¶1 David Romero appeals the dismissal of his medical
malpractice claim against Khalid S. Hasan, M.D., for failure to file a
preliminary expert affidavit as required under Arizona Revised Statutes
(A.R.S.) § 12-2603 (2016).2 For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In October 2014, Romero filed a complaint alleging Hasan
negligently prescribed an incorrect dosage of synthroid in October 2012.

¶3 In December 2014, Romero certified pursuant to A.R.S. § 12-
2603 that expert testimony was not necessary to prove the proper standard
of care or breach. Hasan disputed that certification and moved to dismiss
Romero’s claim for failure to comply with A.R.S. § 12-2603. Romero
responded that his claim did not require expert testimony, but requested
additional time to comply with the statute’s requirement to provide a
preliminary expert affidavit if the superior court concluded to the contrary.
Finding Romero’s claim required expert testimony, the superior court
ordered him to provide a preliminary expert opinion affidavit within nine
weeks.

¶4 Three days before the court-ordered deadline, Romero
requested the superior court set a hearing so his treating physicians could
“establish the requirements under A.R.S. § 12-2603.” Romero admitted he
was unable to obtain the affidavits required by A.R.S. § 12-2603. The

1 The Honorable Charles W. Gurtler, Jr., Judge of the Arizona Superior
Court, has been authorized to sit in this matter pursuant to Article 6, Section
3 of the Arizona Constitution.

2 We cite the current version of applicable statutes unless revisions
material to this decision have occurred since the events in question.

2
 ROMERO v. HASAN
Opinion of the Court

superior court denied Romero’s request for a hearing and dismissed
Romero’s claim without prejudice.

¶5 Romero points out that Arizona has a savings statute—A.R.S.
§ 12-504(A)—that would have permitted him to refile his action; however,
no issue regarding A.R.S. § 12-504(A) is presently before us. We have
jurisdiction. See A.R.S. §§ 12-2101(A)(3) (2016) (appellate jurisdiction), -
120.21(A)(4) (2016) (special actions jurisdiction).

DISCUSSION

¶6 On appeal, Romero argues the superior court erred in
rejecting his request for his treating physicians to testify at a hearing in lieu
of him serving a preliminary affidavit as required by A.R.S § 12-2603.3 We
review de novo the superior court’s order granting a motion to dismiss.
Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7, 284 P.3d 863, 866-67 (2012).

¶7 In medical malpractice actions, A.R.S. § 12-2603(A) requires a
claimant to certify at the time the claim is filed whether expert opinion
testimony is necessary to prove the health care professional’s standard of
care or breach. If the claimant certifies expert testimony is not required, the
health care professional may dispute that certification and apply for an
order requiring the claimant to serve a preliminary expert opinion affidavit.
A.R.S. § 12-2603(D). If the court determines compliance is necessary, the
court shall set a compliance deadline. A.R.S. § 12-2603(E). The court “shall
dismiss the claim against the health care professional . . . without prejudice
if the claimant . . . fails to file and serve a preliminary expert opinion
affidavit after . . . the court has ordered the claimant . . . to file and serve an
affidavit.” A.R.S. § 12-2603(F).

¶8 A statute’s language is “the most reliable evidence of its
intent.” McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, 75, ¶ 8, 202 P.3d
536, 540 (App. 2009) (quoting Walker v. City of Scottsdale, 163 Ariz. 206, 209,
786 P.2d 1057, 1060 (App. 1989)). If statutory language is “clear and
unambiguous,” we give effect to legislative intent by applying the language
based “on the assumption that the legislature meant what it said.” Melendez
v. Hallmark Ins. Co., 232 Ariz. 327, 330, ¶ 10, 305 P.3d 392, 395 (App. 2013).

¶9 The legislature directed the affidavit required by A.R.S. § 12-
2603 to “certify that the action against the medical professional is not

3 We deny as moot Romero’s request to strike Hasan’s statement of
facts.

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 ROMERO v. HASAN
Opinion of the Court

meritless.” Jilly v. Rayes, 221 Ariz. 40, 43, ¶ 6, 209 P.3d 176, 179 (App. 2009).
A.R.S. § 12-2603(F) clearly and unambiguously mandates the superior court
dismiss without prejudice a claim when the claimant fails to comply with
the court’s order to file and serve a preliminary expert opinion affidavit.
A.R.S. § 12-2603 does not provide for a hearing in lieu of serving the
requisite affidavit. Here, because the superior court ordered Romero to
provide the requisite affidavit by a date certain, it did not err by dismissing
Romero’s claims without prejudice for failure to comply with A.R.S. § 12-
2603.4

CONCLUSION

¶10 We affirm and award Hasan costs upon compliance with
Arizona Rule of Civil Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

4 We do not address Romero’s argument that A.R.S. § 12-2603
unconstitutionally violates his right of access to the courts. Because Romero
failed to raise this argument before the superior court, he has waived it on
appeal. Romero v. Sw. Ambulance, 211 Ariz. 200, 204, ¶ 7, 119 P.3d 467, 471
(App. 2005). In any event, to the extent Romero argues he cannot afford the
expense of hiring an expert witness to make an affidavit, he offers no
evidence that any of the treating physicians he intended to call at the
requested hearing would have been willing to provide the information
required by § 12-2603(B).

4