Francisco v. Affiliated Urologists

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID FRANCISCO, et al., Plaintiffs/Appellants,

v.

AFFILIATED UROLOGISTS LTD, et al., Defendants/Appellees.

No. 1 CA-CV 21-0701
FILED 5-23-2023

Appeal from the Superior Court in Maricopa County
No. CV2020-010470
The Honorable James D. Smith, Judge (Retired)

REVERSED AND REMANDED

COUNSEL

Kelly & Lyons, PLLC, Scottsdale
By Jason M. Kelly, Richard D. Lyons
Counsel for Plaintiffs/Appellants

Jones, Skelton & Hochuli P.L.C., Phoenix
By Eileen Dennis GilBride, Cristina M. Chait, Anne E. Holmgren
Counsel for Defendants/Appellees

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Amicus Curiae Arizona Association for Justice/Arizona Trial
Lawyers Association
 FRANCISCO, et al. v. AFFILIATED UROLOGISTS, et al.
Memorandum Decision

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Jennifer M. Perkins1 joined.

C R U Z, Judge:

¶1 David Francisco and his wife, Kimberley Francisco, appeal
the superior court’s dismissal with prejudice of their medical negligence
claim against Kevin Art, M.D. (“Dr. Art”) and Affiliated Urologists, Ltd.
(collectively, “the Practice”) based on non-compliance with Arizona
Revised Statutes (“A.R.S.”) section 12-2603. We reverse and remand for
further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL HISTORY

¶2 The Franciscos filed a lawsuit against the Practice alleging
medical negligence.2 The Franciscos alleged Dr. Art failed to inform David
of the potential risks of taking ciprofloxacin (“Cipro”), a drug Dr. Art
prescribed for David following a 2018 urological procedure. The Franciscos
allege David had a reaction to Cipro that caused him permanent pain and
injury. The Franciscos asserted that, had Dr. Art offered adequate
information or prescribed a reasonable alternative, David would have
requested a different antibiotic.

¶3 The Franciscos certified that expert witness testimony was not
necessary to prove the applicable standard of care and liability. The
Practice filed a motion to compel a preliminary expert opinion affidavit

1 Judge Jennifer M. Perkins replaced Judge Peter B. Swann, who was
originally assigned to this panel but has since retired. Judge Perkins has
read the briefs, watched the recorded oral argument, and reviewed the
record.

2 In their complaint, the Franciscos alleged three causes of action: lack
of informed consent, negligence, and negligence per se. All three claims are
premised on the Franciscos’ allegation that Dr. Art failed to warn or inform
David of the increased risk of harm based on the FDA warnings and
David’s particular patient profile. The Franciscos do not raise any issue
regarding their negligence per se claim, and thus it is waived. See Ramos v.
Nichols, 252 Ariz. 519, 523, ¶ 11 (App. 2022).

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Memorandum Decision
required under A.R.S. § 12-2603(D). In response, the Franciscos argued
that, as recently as 2016, the Food and Drug Administration (“FDA”)
warned in its Cipro medication insert that Cipro can cause “disabling and
potentially irreversible serious adverse reactions,” and instructed doctors
prescribing Cipro to use caution “when prescribing CIPRO to elderly
patients especially those on corticosteroids,” to inform patients of this
potential adverse reaction, and to give instructions “to discontinue CIPRO
use and contact their healthcare provider if any symptoms of tendinitis or
tendon rupture occur.” At the time of the surgery, David was 66 years old
and had been taking corticosteroids for about 40 years. The Franciscos
argued jurors could decide for themselves whether the FDA warnings
would have been material to David’s decision-making process, and the
FDA warnings at issue did not require experts for the jury to understand
them. Ultimately, the Franciscos conceded they were unable to find an
expert to provide a preliminary expert opinion affidavit. The superior court
granted the Practice’s motion to compel a preliminary expert opinion
affidavit as to the claims of negligent prescription of Cipro and failure to
inform of the risks of taking the drug, as well as denied the Franciscos’
motion for reconsideration.

¶4 The Practice moved to dismiss pursuant to A.R.S. § 12-
2603(F). The superior court granted the motion and entered final judgment
dismissing the case with prejudice. The Franciscos timely appealed, and
we have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶5 The Franciscos argue the superior court erred in requiring a
preliminary expert opinion affidavit as to their lack of informed consent
claim and in dismissing the same. We review an order requiring a
preliminary expert opinion affidavit under A.R.S. § 12-2603 for abuse of
discretion. See Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 128, ¶ 14
(App. 2008) (reasoning that the abuse of discretion standard should apply
to the superior court’s decision whether expert testimony is required under
A.R.S. § 12-2602, the companion statute to A.R.S. § 12-2603, because the
determination at trial of areas of expert testimony is discretionary).

¶6 The Franciscos argue that A.R.S. § 12-2603 only applies to
medical malpractice claims and that, because a lack of informed consent
claim is not a medical malpractice claim, expert testimony is not required.
As relevant here, a “claim” for purposes of § 12-2603 means a legal cause of
action under the Medical Malpractice Act, A.R.S. §§ 12-561 through 12-563,
when “[t]he claim is based on the health care professional’s alleged breach

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 FRANCISCO, et al. v. AFFILIATED UROLOGISTS, et al.
Memorandum Decision
of contract, negligence, misconduct, errors or omission in rendering
professional services,” and when expert testimony is necessary to prove the
standard of care or liability. A.R.S. § 12-2603(H).

¶7 It is undisputed that the Franciscos alleged a medical
negligence action against healthcare provider Dr. Art for lack of informed
consent. A lack of informed consent claim is a negligence action. Duncan
v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 309-10, ¶¶ 11-13 (2003) (lack
of informed consent claim involves the physician’s duty to inform the
patient of inherent risks in surgery or treatment to which he has consented
and should be pled in negligence); Rice v. Brakel, 233 Ariz. 140, 144, ¶ 12
(App. 2013) (duty to disclose relevant risks exists under the informed
consent theory of medical malpractice); Gorney v. Meaney, 214 Ariz. 226, 230,
¶ 11 (App. 2007) (lack of informed consent claim falls within definition of
claim for medical malpractice); Gurr v. Willcut, 146 Ariz. 575, 581 (App.
1985) (same). Moreover, this court has expressly rejected the argument that
A.R.S. § 12-2603 excepts lack of informed consent claims from its reach.
Gorney, 214 Ariz. at 230, ¶ 9.

¶8 The Franciscos next argue expert testimony is not necessary
to prove their lack of informed consent claims given the particularized FDA
warnings and David’s medical history. The Arizona Supreme Court has
made clear that the medical profession’s custom to warn must usually be
established by expert medical testimony and depends “upon the
circumstances of the particular case.” Riedisser v. Nelson, 111 Ariz. 542, 544-
45 (1975) (citation omitted); see also Potter v. H. Kern Wisner, M.D., P.C., 170
Ariz. 331, 333 (App. 1991); Seisinger v. Siebel, 220 Ariz. 85, 95, ¶ 39 (2009)
(“[E]xpert testimony is usually required to establish the standard of care.”)
(emphasis added) (citation omitted). But evidence of custom, while usually
important, is not determinative in all cases; there is no legal rule requiring
that expert testimony always exist to define the standard of care. Notably,
§ 12-2603(A) requires a plaintiff to file a written statement as to “whether or
not expert opinion testimony is necessary to prove the health care
professional’s standard of care or liability for the claim.” (Emphasis
added.)

¶9 Here, relying on Riedisser, the superior court held that Dr.
Art’s possible duty to warn of a specific risk hinged on medical knowledge.
111 Ariz. at 545. But Riedisser is distinguishable. In that case, the plaintiff
suffered a rare, adverse result after undergoing a hysterectomy for which
she gave her informed consent. Id. at 543-44. Medical knowledge was
necessary to explain to the jury whether the physician breached his duty of
disclosure in failing to inform her of the unlikely possibility of the rare
complication she experienced. Id. at 544-45. The court reasoned that

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Memorandum Decision
because Ms. Riedisser gave her informed consent, any liability of the
physician must be from malpractice and must be measured by the usual
practices of the medical profession. Id. In other words, a medical expert
would be required to explain to the jury the standard of disclosure for that
surgical procedure within the medical community.

¶10 As Riedisser notes, the duty to warn of a specific risk depends
“upon the circumstances of the particular case and upon the general
practice followed by the medical profession,” and “[t]here is . . . no clear
rule as to what information must be disclosed in what circumstances;
medical judgment is primarily involved.” Id. (citation omitted).

¶11 Custom alone is not the standard. All relevant circumstances
should be considered, including whether the FDA has specified in a
medication’s package insert that the prescriber should give a warning. Cf.
Rodriguez v. Jackson, 118 Ariz. 13, 18 (App. 1977) (recognizing that although
a package insert is not conclusive evidence of the standard of care, it is
admissible into evidence).

¶12 The absence of expert testimony on the custom of the medical
profession does not mandate dismissal under § 12-2603 when, as here, the
FDA directs physicians to advise patients of all risks associated with
prescribed medications, provides physicians with a specific “black box”
warning, and the physician does not advise the patient of the specific
warning Here, specialized knowledge is not needed to evaluate whether
the FDA instructed the doctor to give certain warnings to patients. The
Franciscos should be permitted to present evidence that the FDA warnings
for Cipro directed prescribers to inform their patients of the potential
adverse reaction and give them instructions for further follow up. Should
the Practice wish to offer responsive expert testimony that physicians are
free to ignore such a directive, it may do so. In such circumstances, a
layperson is well able to determine whether, in the context of all evidence
from both sides, the failure to warn constituted negligence.

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 FRANCISCO, et al. v. AFFILIATED UROLOGISTS, et al.
Memorandum Decision
CONCLUSION

¶13 We reverse and remand for further proceedings consistent
with this decision. The Franciscos are awarded their costs on appeal, upon
compliance with ARCAP 21.

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

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