Arojojoye v. Allen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

OYESIJI A. AROJOJOYE, M.D., Petitioner,

v.

VICKIE ALLEN, Special Administrator of the Estate of CRYSTAL
ALLEN, for and on behalf of the Decedent’s estate; VICKIE ALLEN,
herself as surviving mother and on behalf of all statutory beneficiaries,
Respondent.

No. 1 CA-SA 24-0270
FILED 04-17-2025

Petition for Special Action from the Superior Court in Maricopa County
No. CV2020-055357
The Honorable Michael D. Gordon, Judge

JURISDICTION ACCEPTED, RELIEF GRANTED

COUNSEL

Jones, Skelton & Hochuli P.L.C., Phoenix
By Douglas R. Cullins, Eileen D. GilBride
Counsel for Petitioner

Jeffrey L. Victor, P.C., Scottsdale
By Jeffrey L. Victor
Counsel for Respondent
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MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael J. Brown and Judge D. Steven Williams joined.

K I L E Y, Judge:

¶1 Vickie Allen (“Allen”) filed this medical negligence and
wrongful death action against Oyesiji Arojojoye, M.D., (“Arojojoye”) and
others arising out of the death of her 40-year-old daughter Crystal Allen
(“Crystal”). Arojojoye moved for summary judgment on Allen’s claims,
asserting that under A.R.S. § 12-2604(A), her standard-of-care expert was
not qualified to testify against him. After the superior court denied his
motion, Arojojoye sought relief by special action. For reasons that follow,
we accept jurisdiction and grant relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 Crystal, a stroke victim, was a patient at a skilled nursing
facility in 2018. Arojojoye, who was board-certified in internal medicine by
the American Board of Medical Specialties (“ABMS”) and board-certified
in wound care by the American Board of Wound Management (“ABWM”),
provided medical treatment to her. Among other things, Arojojoye
evaluated a pressure ulcer on her left hip and performed a bedside
debridement. When Crystal developed sepsis from pneumonia and died,
Allen sued Arojojoye and the other defendants, alleging, inter alia, that they
“failed to timely and accurately assess” Crystal’s “medical conditions,”
“failed to appropriately treat” her, and failed to prevent her from
“incurring injurious pressure ulcers.”

¶3 Allen identified Andrew Marc Meillier, M.D., (“Meillier”)
who is board-certified in internal medicine, as her standard-of-care expert.
Arojojoye moved to preclude Meillier as an expert on the basis that he was
not a wound care specialist. The superior court denied his motion to
preclude without prejudice to the request being re-urged after further
discovery.

¶4 Arojojoye later moved for summary judgment, arguing that
Allen could not establish her claim because her expert was not qualified to
testify about the applicable standard of care. Arojojoye supported his

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motion with his own declaration stating that, although he was certified in
both internal medicine and wound care, he treated Crystal in the latter
capacity as “a wound care management specialist.” Because Meillier “is
Board certified in internal medicine only,” Arojojoye asserted, A.R.S. § 12-
2604(A) precludes him from testifying on the applicable standard of care in
this case.

¶5 In response, Allen did not dispute that Meillier is not certified
in wound care. She nonetheless asserted that Arojojoye and Meillier “hold[]
the same board certification in Internal Medicine,” and therefore that
Meillier “is qualified by the [statute] and related case law” to testify about
the applicable standard of care.

¶6 After further briefing and argument, the superior court
denied Arojojoye’s motion for summary judgment, holding that Meillier “is
qualified to testify” as an expert in this case because, although Arojojoye
“has a certification as a wound specialist, the care he rendered in this
case . . . falls within his practice of internal medicine.” Arojojoye seeks relief
by special action from this ruling.

DISCUSSION

¶7 Though highly discretionary, the exercise of special action
jurisdiction may be warranted when the petitioner has no equally plain,
speedy, and adequate remedy by appeal. Kelly v. Blanchard, 255 Ariz. 197,
199, ¶ 7 (App. 2023); see also Ariz. R.P. Spec. Act. 12(a).1 The challenged
ruling here is interlocutory in nature and cannot be reviewed on direct
appeal. See A.R.S. § 12-2101. Further, a post-judgment appeal in a medical
negligence action is not an adequate remedy for the denial of a dispositive
motion challenging the qualifications of the plaintiff’s standard-of-care
expert. See Lo v. Lee, 231 Ariz. 531, 532, ¶ 1 (App. 2012); cf. Sanchez v. Coxon, 175 Ariz. 93, 94-95 (1993) (accepting special action from denial of motion to
dismiss based on claim of immunity, in part because “declining jurisdiction
would require Petitioners to stand trial – thereby losing much of the benefit

1 The Arizona Supreme Court revised the Arizona Rules of Procedure for

Special Actions effective January 1, 2025. The new rules apply in all special
actions pending on that date, unless doing so would be infeasible or cause
an injustice. Ariz. R.P. Spec. Act. 1 Application Note. This action was
pending on January 1, 2025. Because applying the new rules is feasible and
would not cause an injustice, we apply them here.

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of their claimed immunity” (citation omitted)). For these reasons, we accept
jurisdiction.

¶8 Arojojoye challenges the superior court’s determination that
Meillier is qualified to testify under A.R.S. § 12-2604. “Apart from issues of
statutory interpretation,” which are reviewed de novo, “determinations on
expert qualifications” are reviewed for abuse of discretion. Baker v. Univ.
Physicians Healthcare, 231 Ariz. 379, 387, ¶ 30 (2013) (citation omitted).

¶9 Section 12-2604 delineates the qualifications necessary for
expert testimony on the standard of care in a medical malpractice case. The
statute provides in relevant part as follows:

In an action alleging medical malpractice, a person shall not
give expert testimony on the appropriate standard of practice
or care unless the person is licensed as a health professional
in this state or another state and the person meets the
following criteria:

1. If the party against whom or on whose behalf the testimony
is offered is or claims to be a specialist, specializes at the time
of the occurrence that is the basis for the action in the same
specialty or claimed specialty as the party against whom or
on whose behalf the testimony is offered. If the party against
whom or on whose behalf the testimony is offered is or claims
to be a specialist who is board certified, the expert witness
shall be a specialist who is board certified in that specialty or
claimed specialty.

A.R.S. § 12-2604(A)(1). The statute thus makes clear that, “in a medical
malpractice action, only physicians with comparable training and
experience may provide expert testimony regarding whether the treating
physician provided appropriate care.” Baker, 231 Ariz. at 383, ¶ 9. If the
treating physician is or claims to be a specialist and the treatment at issue
was within the specialty or claimed specialty, the “testifying expert [must]
specialize ‘in the same specialty or claimed specialty.’” Id. at 384, ¶¶ 13-14
(interpreting A.R.S. § 12-2604(A)). And, if the treating physician “is or
claims to be a specialist who is board certified,” the testifying expert “shall
be a specialist who is board certified in that specialty or claimed specialty.”
A.R.S. § 12-2604(A)(1).

¶10 Asserting that he “treated [Crystal] for wound care,”
Arojojoye argues that Meiller is not qualified to testify against him because
he “is a board-certified wound care specialist” while Meillier “is not.”

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¶11 In response, Allen argues, first, that Arojojoye failed to
establish that he was certified in wound care at the time he provided the
treatment at issue. Arojojoye supported his motion for summary judgment
with his own declaration and a copy of documentation from the ABWM
reflecting that he became certified as a wound care specialist in 2010. Allen
maintains that because Arojojoye provided only “a copy of his initial
[ABWM] membership approval” in 2010, with no “documentation showing
renewal for 2018,” Arojojoye failed to “sufficiently demonstrate” that he
still held the certification when he rendered the treatment at issue.

¶12 A witness is competent to testify about any relevant matter of
which he has personal knowledge, and “[e]vidence to prove personal
knowledge may consist of the witness’s own testimony.” Ariz. R. Evid. 602.
Arojojoye stated in his declaration that he received his certification in
wound care from the ABWM in 2010 and renewed it each year until 2020.
Even without corroborating documentation, Arojojoye’s statement in his
declaration, uncontroverted by other evidence, establishes that he was still
certified as a wound care specialist in 2018. The record thus supports the
superior court’s finding that, at the time Arojojoye provided the treatment
at issue, he was certified by the ABWM as a wound care specialist.

¶13 Allen argues, next, that notwithstanding his certification by
the ABWM, Arojojoye has no “special, distinct, or advanced training in
wound care.” Pointing out, correctly, that the ABMS “does not recognize
wound care as . . . a medical specialty or subspecialty,” Allen contends that
Arojojoye’s certification by the ABWM is nothing more than “a mere
marketing tool” to promote his practice. Indeed, Allen goes on, wound care
is not mentioned as a service on his practice’s website. “Outside of this
lawsuit,” she concludes, Arojojoye “does not hold himself out as an expert
in wound care.”

¶14 Although “[t]he ABMS does not recognize wound care” as a
distinct specialty or subspecialty, that fact is irrelevant. As the Baker court
held, the term “specialty” as used in Section 12-2604(A) is not limited “to
only the twenty-four ABMS member boards.” Baker, 231 Ariz. at 386, ¶ 23.
Instead, “specialty” includes “a broad range of practice areas” in which
practitioners may seek and obtain “[b]oard certification” by “other
certifying bodies.” Id. at 385, 386, ¶¶ 19, 24. Likewise, Allen’s allegation that
Arojojoye sought wound care certification from the ABWM only for
marketing purposes, even if true, is irrelevant; Baker recognizes that health
care professionals may, and often do, pursue board certification in
specialized fields for remunerative reasons. See id. at 385, ¶ 20 (noting that
“[a]lthough a physician can practice general and specialty medicine

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without board certification, obtaining certification may confer certain
advantages such as hospital privileges, lower malpractice insurance rates,
and higher salaries” (citation omitted)). Similarly irrelevant is Allen’s claim
that Arojojoye does not tout wound care services on his practice’s website;
as the Baker court held, nothing in Section 12-2604 “suggest[s] that the
legislature intended the meaning of ‘specialty’ to turn on how a treating
physician might describe his or her own particular practice.” Id. at ¶ 17.
Arojojoye’s board certification in wound care by the ABWM establishes that
when he provided the treatment at issue, he was a wound care specialist
within the meaning of Section 12-2604(A).

¶15 Allen contends that Arojojoye cannot be considered a
“specialist” because, by his own admission, Arojojoye allowed his ABWM
certification to lapse in 2020. Not so. Section 12-2604(A)(1) focuses on the
treating physician’s specialty “at the time of the occurrence that is the basis for
the action.” A.R.S. § 12-2604(A)(1) (emphasis added). The subsequent lapse
of his board certification did not retroactively strip Arojojoye of his status
as a wound care specialist at the time he treated Crystal.

¶16 Allen argues that, irrespective of his status as a specialist, “at
the time he provided medical care” to Crystal, Arojojoye was “engaging in
the practice of internal medicine,” not “acting as a wound care specialist.”
She supports her assertion on this point with Meillier’s declaration, which
states in part that an internist’s practice “involves evaluation of wounds
and appropriate management” and that, “[a]s part of” his own “regular
practice,” Meillier “routinely oversee[s] wound care.” Allen maintains that,
because Meillier, like Arojojoye, is “a board certified internist who . . .
provides wound care management services in a hospital environment,”
Meillier “is qualified to offer expert testimony in this matter.”

¶17 In resolving a challenge to an expert’s qualifications in a
medical negligence case, the court must “determine if the care or treatment
at issue” was within the treating physician’s specialty. Baker, 231 Ariz. at
386, ¶ 27. Here, the superior court found that, even though Arojojoye “has
a certification as a wound specialist,” the medical care “he rendered in this
case . . . falls within his practice of internal medicine.” To the extent this
constitutes a finding that the medical treatment at issue in this case was
outside Arojojoye’s wound care specialty, this finding is supported by no
evidence in the record. In his declaration, Arojojoye states that he saw the
patient “in the capacity of a wound care management specialist.”
Arojojoye’s assertion on this point is consistent with Crystal’s medical
records as summarized in Meillier’s declaration. Meillier’s declaration
includes a timeline of events that Meillier created based on his review of

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Crystal’s medical records. The timeline includes quotes taken from notes
from Crystal’s medical records showing that, upon her admission in July
2018, she began receiving treatment from the “wound care team”; that
“[w]ound care service Dr. Arojojoye was consulted for evaluation . . . on
August 6, 2018”; and that on October 1, 2018, “Dr. Arojojoye of the wound
care team . . . performed a bedside debridement.” The patient’s medical
records as summarized in the declaration of Allen’s own expert, therefore,
support Arojojoye’s assertion that he provided the treatment at issue in his
capacity as a wound care specialist.

¶18 Allen argues that Arojojoye’s wound care specialization is
irrelevant because Meillier’s declaration establishes that internists, too,
provide wound care treatment. Allen’s assertion that internists regularly
provide competent wound care, though no doubt true, misses the point; the
fact that the treatment at issue here could have been provided by an internist
who was not a wound care specialist is irrelevant. As Baker recognizes,
“different specialists may be prepared by training and experience to treat
the same medical issue for a particular patient.” Baker, 231 Ariz. at 383, ¶ 9.
Nonetheless, “when the care or treatment at issue was within” the treating
physician’s specialty, Section 12-2604(A) requires that “a testifying expert
specialize in the same specialty” even if “physicians in other specialties
might also have competently provided the treatment.” Baker, 231 Ariz. at
384, 387, ¶¶ 14, 31 (quoting A.R.S. § 12-2604(A)); see also Preszler v. Corwin
D. Martin PC, 1 CA-CV 20-0659, 2022 WL 175568 at *3, ¶ 14 (Ariz. App. Jan.
20, 2022) (mem. decision) (affirming dismissal of dental malpractice claim
for lack of qualified standard-of-care expert; because defendant “was
practicing within his board-certified specialty of oral and maxillofacial
surgery at the time he rendered treatment” to the patient, expert witness
who was not so certified was not qualified to testify even though, as a
periodontist, he “might also have competently provided the treatment”
(citation omitted)).

¶19 In support of her assertion that Arojojoye “was not practicing
as a wound care specialist” when he rendered the medical treatment at
issue, Allen cites her counsel’s assertions to that effect at oral argument on
Arojojoye’s motion for summary judgment. Because counsel’s unsworn
assertions are not “evidence,” Woerth v. City of Flagstaff, 167 Ariz. 412, 420
(App. 1990) (citations omitted), the arguments by Allen’s counsel during
the summary judgment proceedings are insufficient to controvert the other
evidence in the record that Arojojoye was, in fact, acting as a wound care
specialist when he treated Crystal.

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¶20 In the absence of any evidence that Arojojoye was working
outside his wound care specialty when providing the treatment at issue,
Section 12-2604(A) requires that an expert must also be a wound care
specialist to testify about the applicable standard of care. See Baker, 231 Ariz.
at 387, ¶ 31. Because it is undisputed that Meillier is not a wound care
specialist, he is not statutorily qualified to testify as a standard-of-care
expert in this case, and the court erred in denying Arojojoye’s motion for
summary judgment.

CONCLUSION

¶21 For the foregoing reasons, we reverse the denial of
Arojojoye’s motion for summary judgment and remand with directions that
judgment be entered in Arojojoye’s favor.

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

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