Crandell v. Azadi

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MELVA DAWN CRANDELL, Plaintiff/Appellant,

v.

ALI AZADI, Defendant/Appellee.

No. 1 CA-CV 25-0262

FILED 10-02-2025

Appeal from the Superior Court in Maricopa County
No. CV2024-013464
The Honorable John L. Blanchard, Judge

VACATED AND REMANDED

COUNSEL

Melva Dawn Crandell, Clay Springs
Plaintiff/Appellant

Kent & Wittekind PC, Phoenix
By Peter M. Wittekind, Steven T. Long
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Acting Presiding Judge Andrew M. Jacobs and Judge Brian Y. Furuya
joined.

C A T L E T T, Judge:

¶1 Melva Dawn Crandell appeals the superior court’s judgment
dismissing her medical malpractice action against Dr. Ali Azadi for failing
to comply with A.R.S. § 12-2603 by not providing an expert opinion
affidavit. Because the court did not consider whether Crandell is exempt
from providing an expert affidavit under the res ipsa loquitur doctrine, we
vacate and remand for it to do so in the first instance.

FACTS AND PROCEDURAL HISTORY

¶2 On August 19, 2022, Dr. Azadi performed surgery on
Crandell, during which he placed a V-Loc suture in her abdomen. The
suture’s tail wrapped around Crandell’s intestines requiring a second
surgery to treat a bowel obstruction.

¶3 Crandell sued Dr. Azadi for medical malpractice, alleging he
failed to properly trim the tail of the V-Loc suture. She claimed “[e]very
doctor who performs V-Loc sutures would know the proper way to treat
their long tail, simply by trimming them off to the proper length[.]”
Crandell argued a preliminary expert opinion affidavit was unnecessary
because “a common person can understand the Defendant’s negligence.”

¶4 Believing an expert opinion affidavit was necessary, Dr.
Azadi moved under § 12-2603 for an order requiring one. The superior
court ordered Crandell to serve an affidavit on Dr. Azadi. When Crandell
did not do so, Azadi moved to dismiss. Crandell responded that the res
ipsa loquitur doctrine exempts her from having to serve an affidavit.
Rejecting that argument, the court concluded there are no exceptions to the
affidavit requirement and dismissed Crandell’s complaint without
prejudice.

¶5 Crandall timely appealed, and we have jurisdiction under
A.R.S. § 12-2101(A)(3). See Garza v. Swift Transp. Co., 222 Ariz. 281, 284 ¶ 15

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Decision of the Court

(2009) (a dismissal without prejudice entered after expiration of the statute
of limitations is a final, appealable order).

DISCUSSION

¶6 We review de novo a judgment dismissing a complaint for
failure to comply with § 12-2603. Francisco v. Affiliated Urologists Ltd., 258
Ariz. 95, 100 ¶ 18 (2024).

¶7 Subsection 12-2603(A) requires a claimant in a medical
malpractice action to certify whether “expert opinion testimony is
necessary to prove the health care professional’s standard of care or liability
for the claim.” If the claimant certifies that such testimony is unnecessary,
the health care professional may seek an order requiring the claimant to
serve a preliminary expert opinion affidavit. A.R.S. § 12-2603(D). If the
court agrees that an affidavit is necessary, it sets a deadline to comply.
A.R.S. § 12-2603(E). The court must dismiss the claim without prejudice if
the claimant fails to comply with its deadline. A.R.S. § 12-2603(F).

¶8 The superior court’s conclusion that there are no exceptions
to the affidavit requirement, even when a claimant relies on res ipsa
loquitur, is inconsistent with our supreme court’s recent opinion in
Francisco. There, the court explained that the “only exception to the
statutory requirement for expert testimony lies within the common-law
doctrine of res ipsa loquitur.” 258 Ariz. at 101 ¶ 25; see also Sanchez v. Old
Pueblo Anesthesia P.C., 218 Ariz. 317, 321 ¶ 14 (App. 2008) (A.R.S. § 12-2603
does not expressly require expert testimony in cases applying the res ipsa
loquitur doctrine), disapproved of on other grounds by Rasor v. Nw. Hosp., LLC,
243 Ariz. 160, 164 ¶¶ 17–19 (2017).

¶9 Here, despite Crandell’s request that the court consider
whether res ipsa loquitur applies based on the facts in her case, the court
refused to do so. The court instead believed that the doctrine cannot
exempt a claimant from the expert affidavit requirement. The court erred
as a matter of law by concluding there are no exceptions to § 12-2603.

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Decision of the Court

CONCLUSION

¶10 We vacate the court’s ruling and remand for it to determine
in the first instance whether, based on the facts in this case, the doctrine of
res ipsa loquitur exempts Crandell from having to serve an expert affidavit.
We express no view on that question. We award appellate costs to Crandell
upon compliance with Arizona Rule of Civil Appellate Procedure 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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