Walker v. Jones

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DEMETRA L. WALKER,
Plaintiff/Appellant,

v.

RAMOUN D. JONES, et al.,
Defendants/Appellees.

Nos. 1 CA-CV 20-0359
1 CA-CV 20-0702
(Consolidated)
FILED 9-28-2021

Appeal from the Superior Court in Maricopa County
No. CV2018-011613
The Honorable Sherry K. Stephens, Judge Retired

AFFIRMED

COUNSEL

Demetra L. Walker, Phoenix
Plaintiff/Appellant

Kent & Wittekind, PC, Phoenix
By Richard A. Kent, James A. Frisbie
Co-Counsel for Defendants/Appellees Jones, Turley, Hesketh and Hollister

Jones Skelton Hochuli, PLC, Phoenix
By Eileen Dennis GilBride
Co-Counsel for Defendants/Appellees Jones, Turley, Hesketh and Hollister
Renaud Cook Drury Mesaros, PA, Phoenix
By William W. Drury Jr., Jeffrey S. Hunter, Charles S. Hover, III
Counsel for Defendants/Appellees The Pain Center Alliance, LLC, Alliance
Healthcare Services, Inc., Arizona Surgical Specialists Center-West Phoenix,
LLC, Rymal, Starchman and McLaughlin

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Paul J. McMurdie joined.

W E I N Z W E I G, Judge:

¶1 Demetra Walker appeals from the superior court’s order
dismissing her amended complaint. We affirm.

FACTS AND PROCEDURAL BACKGROUND1

¶2 After undergoing back surgery on October 3, 2016, Walker
suffered burns to her back and facial bruises. On October 2, 2018, Walker
sued anesthesiologists Dr. Ramoun Jones and Dr. Todd Turley for her
injuries, along with The Pain Center of Arizona and Arizona Surgical
Specialists Center-West Phoenix. On October 29, 2019, Walker filed her first
amended complaint naming five nurses and their employers as defendants,
including Susan Hesketh, Fallon Lynn Rymal Adamczyk, Ramond Serriow
Starchman and Courtney Marie McLaughlin (collectively, the “Nurse
Defendants”).

¶3 The superior court dismissed the claims against Drs. Jones
and Turley and declined to reinstate them because Walker did not meet the
preliminary expert affidavit requirement of A.R.S. § 12-2603. The court
later dismissed the claims against the Nurse Defendants as untimely under
the two-year statute of limitations, concluding that Walker had not alleged
facts in the amended complaint that related back to the original complaint.
Walker appealed and we have jurisdiction. See A.R.S. § 12-2101(A)(1).

1 On appeal from a motion to dismiss, “we assume the truth of the
well-pled factual allegations and indulge all reasonable inferences
therefrom.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008).

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Decision of the Court

DISCUSSION

I. Drs. Jones and Turley

¶4 Walker contends the superior court should have reinstated
Drs. Jones and Turley as defendants because she later introduced an
“anesthesiologist affidavit.” We review an order granting or denying a
motion for reinstatement for an abuse of discretion, Zimmerman v. W.
Builders’ & Salvage Co., 38 Ariz. 91, 95 (1931), and affirm the ruling if “legally
correct for any reason,” Gila River Indian Cmty. v. Dep’t of Child Safety, 242
Ariz. 277, 283, ¶ 26 (2017) (quoting State v. Perez, 141 Ariz. 459, 464 (1984)).

¶5 A medical malpractice claimant must serve a preliminary
expert opinion affidavit on defendants when serving initial disclosures.
A.R.S. § 12-2603(B). The affidavit must state how the healthcare provider
injured the claimant by deviating from the applicable standard of care. Id.
A medical malpractice claim will be dismissed if the claimant does not file
the affidavit within a reasonable time. A.R.S. § 12-2603(F); Rasor v. Nw.
Hosp., LLC, 243 Ariz. 160, 164, ¶ 22 (2017).

¶6 The superior court did not abuse its discretion. Walker filed
an “anesthesiologist affidavit” from Dr. Ajay Mathur in December 2019,
representing her second attempt to meet the requirements of A.R.S. § 12-
2603. But the affidavit was inadequate. Though stating that Dr. Mathur
was “the Expert in this action” and submitted the affidavit to “offer an
opinion to establish the breach of such care or liability,” the affidavit never
mentioned a standard of care, how Jones and Turley deviated from the
standard or how they caused Walker’s injuries. The superior court did not
abuse its discretion because the affidavit did not comply with A.R.S. § 12-
2603.

II. The Nurse Defendants

¶7 Walker also challenges the court’s dismissal of her amended
complaint against the Nurse Defendants on statute of limitations grounds,
which we review de novo. Dube v. Likins, 216 Ariz. 406, 411, ¶ 5 (App. 2007).
Walker shows no error. The superior court properly dismissed Walker’s
claims against the Nurse Defendants because she filed the amended
complaint over three years after the surgery.

¶8 Walker argues the Nurse Defendants waived the statute of
limitations defense because they moved to strike her first amended
complaint before they moved to dismiss the complaint. She relies on
Arizona Rule of Civil Procedure 8(c)(6). But a motion to strike is not a

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Decision of the Court

pleading. See Ariz. R. Civ. P. 12(f) (allowing motions to strike “before
responding to the pleading”). So, the Nurse Defendants did not waive their
statute of limitations defense. See Ariz. R. Civ. P. 8(d) (waiving affirmative
defenses not raised in a pleading).

¶9 Walker also contends the motions to dismiss of the Nurse
Defendants were procedurally improper because defense counsel violated
the rule governing attorney appearances under Arizona Rule of Civil
Procedure 5.3. Not so. The record shows that defense counsel complied
with Rule 5.3, which permits an attorney to “appear as attorney of record
by filing a document—including a notice of appearance, complaint, answer,
motion to quash, notice of association of counsel, or notice of substitution
of counsel—that identifies the attorney as the attorney of record for a
party.”

¶10 And last, Walker argues that defense counsel filed “an
improper strike motion in lieu of a proper motion of reconsideration or
notice of appeal.” Walker fails to develop or support this argument,
waiving it on appeal. Sholes v. Fernando, 228 Ariz. 455, 461, ¶ 16 (App. 2011).

CONCLUSION

¶11 We affirm.

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

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