Mikel Lo, M.D. and Mikel W. Lo, M.d, Inc. v. Mills

FILED BY CLERK
IN THE COURT OF APPEALS SEP 20 2012
STATE OF ARIZONA
DIVISION TWO COURT OF APPEALS
DIVISION TWO

MIKEL LO, M.D. and MIKEL W. LO, ) 2 CA-SA 2012-0044
M.D., INC., ) DEPARTMENT A
)
Petitioners, ) OPINION
)
v. )
)
HON. KENNETH LEE, Judge of the )
Superior Court of the State of Arizona, in )
and for the County of Pima, )
)
Respondent, )
)
and )
)
VALERIE A. and DARRELL K. MILLS, )
wife and husband, )
)
Real Parties in Interest. )
)

SPECIAL ACTION PROCEEDING

Pima County Cause No. C20105329

JURISDICTION ACCEPTED; RELIEF DENIED

Broening Oberg Woods & Wilson, PC
By Michael J. Ryan and Michelle L. Donovan Phoenix
Attorneys for Petitioners

Piccarreta Davis PC
By Barry M. Davis and Amy Hernandez Tucson
Attorneys for Real Parties in Interest

H O W A R D, Chief Judge.
¶1 Mikel Lo petitions this court for special action review of the respondent

judge’s order denying his motion for summary judgment in plaintiff-respondent Valerie

Mills’s medical malpractice action against him.1 He contends the respondent erred by

concluding Mills’s designated standard-of-care expert was not barred from testifying by

A.R.S. § 12-2604(A)(1). Because Lo has no equally plain and speedy remedy by appeal,

and because this case presents an issue of first impression and of statewide importance,

we accept special action jurisdiction. Ariz. R. P. Spec. Actions 1(a); Lear v. Fields, 226

Ariz. 226, ¶ 6, 245 P.3d 911, 914 (App. 2011). For the reasons that follow, however, we

deny relief.

¶2 In July 2010, Mills sued Lo, a board-certified ophthalmologist with a

claimed subspecialty in oculoplastic surgery, asserting he had fallen below the applicable

standard of care in performing a “laser facial skin treatment” on Mills, and she had

suffered numerous injuries and complications as a result. Lo filed a motion for summary

judgment and a motion to disqualify Mills’s standard-of-care expert, Dr. James Chao, a

board-certified plastic surgeon. Lo argued that, pursuant to § 12-2604(A)(1), Chao was

not qualified to testify against Lo because he was not a board-certified ophthalmologist

and Mills, therefore, could not meet her burden of demonstrating Lo had violated the

standard of care.

1
This matter includes Mikel W. Lo, M.D., Inc. as a defendant and Mills’s husband,
Darrell, as a plaintiff. For ease of reference, we refer to Lo and Mills as individuals
throughout this decision.
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¶3 The respondent judge denied Lo’s motion, reasoning that, although Lo was

a board-certified ophthalmologist, he was also a specialist in cosmetic plastic surgery,

and that the procedure he had performed on Mills fell within the latter specialty. Thus,

the respondent concluded Chao, as a board-certified plastic surgeon, was qualified to

offer testimony pursuant to § 12-2604(A)(1).

¶4 Lo claims the respondent judge erred by concluding Chao was qualified

under § 12-2604 to testify concerning the appropriate standard of care. “Arizona law

requires a plaintiff who asserts a medical negligence claim against a health care

professional to prove that the health care professional failed to comply with the

applicable standard of care.” Awsienko v. Cohen, 227 Ariz. 256, ¶ 8, 257 P.3d 175, 177

(App. 2011), citing A.R.S. § 12-563. Section 12-2604(A)(1) requires an expert testifying

“on the appropriate standard of practice or care” to have certain qualifications:

If the party against whom or on whose behalf the
testimony is offered is or claims to be a specialist, [the expert]
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.

¶5 In Baker v. University Physicians Healthcare, we determined the

legislature intended the term “specialty,” as used in § 12-2604(A)(1), to refer to the

twenty-four specialty boards established by the American Board of Medical Specialties

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(ABMS),2 and did not include subspecialties. 228 Ariz. 587, ¶¶ 7-8, 13, 269 P.3d 1211,

1214-15 (App. 2012). We also concluded the legislature chose “to base a testifying

expert’s qualifications . . . on the training and certification of the specialist.” Id. ¶ 10. By

doing so and using the ABMS boards, the legislature gave litigants an objective and

verifiable standard to determine before filing an action what qualifications an expert must

have in order to testify. Thus, we concluded an expert who was board certified in the

ABMS specialty of internal medicine, with a subspecialty in hematology, did not qualify

under § 12-2604(A)(1) to testify against the defendant, who was board certified in the

ABMS specialty of pediatrics with a subspecialty in pediatric hematology. Id. ¶¶ 11-12.

And we noted that we did not “decide if or in what way § 12-2604 applies when a

defendant specialist is acting outside of his or her specialty.” Id. n.2.

¶6 Lo is a board-certified ophthalmologist. The ABMS describes that area of

practice as follows:

Ophthalmology is a specialty focused on the medical
and surgical care of the eyes. Ophthalmologists are the only
physicians medically trained to manage the complete range of
the eye and vision care. They can prescribe glasses and
contact lenses, dispense medications, diagnose and treat eye
conditions and diseases and perform surgeries.

2
Baker and this case address the application of § 12-2604(A)(1) and the definition
of “specialty” in the context of medical doctors covered by the ABMS. We do not
consider whether the term “specialty” as applied to other health care professionals would
be governed by other specialty boards, such as those established by the American
Osteopathic Association (AOA). See AOA Specialty Boards
https://www.osteopathic.org/inside-aoa/development/aoa-board-certification/Pages/aoa-
specialty-boards.aspx (last visited Sept. 5, 2012) (listing eighteen specialty boards for
doctors of osteopathy).
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ABMS Member Boards, Ophthalmology, http://www.certificationmatters.org/abms-

member-boards/ophthalmology.aspx (last visited Jul. 30, 2012). This definition does not

specifically include plastic surgery. Lo acknowledges plastic surgeons perform facial

laser resurfacing “such as [he] performed on [Mills],” but contends that, because the

procedure also is performed by ophthalmologists with Lo’s particular claimed

subspecialty—oculoplastic surgery, Chao is not qualified as an expert because he is not a

board-certified ophthalmologist. Given that Lo is a board-certified ophthalmologist and

the record supports his assertion that ophthalmologists perform this procedure, a board-

certified ophthalmologist, otherwise qualified under Rule 702, Ariz. R. Evid., would

qualify to testify pursuant to § 12-2604(A)(1).

¶7 But the respondent judge found that Lo also was a specialist, or at least

claimed to be a specialist, in “cosmetic plastic surgery.” Plastic surgery is a recognized

ABMS board and “deals with the repair, reconstruction or replacement of physical

defects of form or function involving the skin, musculoskeletal system,

craniomaxillofacial structures, hand, extremities, breast and trunk and external genitalia

or cosmetic enhancement of these areas of the body.” ABMS Member Boards, Plastic

Surgery, http://www.certificationmatters.org/abms-member-boards/plastic-surgery.aspx

(last visited Jul. 30, 2012). “Cosmetic surgery is an essential component of plastic

surgery,” id., and there is no ABMS member board for cosmetic surgery, see ABMS

Member Boards, http://www.certificationmatters.org/abms-member-boards.aspx (last

visited Sept. 6, 2012).

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¶8 Lo argues, however, that there is a distinction between cosmetic surgery

and plastic surgery. At oral argument before this court he asserted he has not claimed a

specialty in plastic surgery. He maintains rather that he was acting as an ophthalmologist

performing cosmetic surgery. We disagree. First, the ABMS description of the practice

of ophthalmology does not include cosmetic surgery, but the ABMS description of plastic

surgery does. Additionally, even assuming a distinction in these circumstances is

meaningful, Lo’s argument is flatly contradicted by the record. In making his ruling, the

respondent judge reviewed the information on Lo’s internet website which claims Lo has

“master[ed] the art of cosmetic surgery,” including “general cosmetic surgery” and states

he is “[b]oard eligible” for the “American Board of Cosmetic Surgery.” The website

additionally describes Lo as “one of Tucson, Arizona’s leading cosmetic surgeons and

facial plastic surgeons,” and states that “[h]is specialties include modern techniques in

cosmetic surgery, facial plastic surgery and reconstructive surgery.”

¶9 Lo contended at oral argument that the contents of his website are irrelevant

to determining whether he has a claimed specialty. Although we need not determine the

full range of information that could establish whether a medical professional has a

claimed specialty as contemplated by § 12-2604(A)(1), it clearly includes public

assertions made by that professional in describing his or her areas of expertise. See

Webster’s Third New Int’l Dictionary 414 (1971) (definition of “claim” includes “to

assert”); see also Rigel Corp. v. State, 225 Ariz. 65, ¶ 19, 234 P.3d 633, 637 (App. 2010)

(court may consider common usage and dictionary definition when legislature has not

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defined term). Based on Lo’s declarations on his website, he claims to be a specialist in

plastic surgery as contemplated by § 12-2604(A)(1). Because Lo has a board-certified

specialty in ophthalmology and a claimed specialty in plastic surgery, we must determine

what qualifications § 12-2604(A) requires an expert witness to have in that situation.

¶10 “When interpreting a statute, our goal is ‘to fulfill the intent of the

legislature that wrote it.’” Baker, 228 Ariz. 587, ¶ 5, 269 P.3d at 1213, quoting

Awsienko, 227 Ariz. 256, ¶ 11, 257 P.3d at 177. In doing so, “[w]e first look to the

statute’s language and if its meaning is clear, we rely on the plain language rather than

utilizing other ways of interpreting the statute.” Id. “If a statute is ambiguous, such as

when terms are undefined, ‘we determine legislative intent by looking first to the text and

context of the statute.’” Id., quoting Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 14-15, 110

P.3d 1013, 1017 (2005). And § 1-211(B), A.R.S., requires us to interpret statutes

“liberally . . . to effect their objects and to promote justice.”

¶11 Section 12-2604 requires “expert testimony on the appropriate standard of

practice or care” for a specialty. As this court noted in Awsienko, the legislature intended

that § 12-2604(A) “ensure that physicians testifying as experts have sufficient expertise

to truly assist the fact-finder on issues of standard of care and proximate causation.” 227

Ariz. 256, ¶ 13, 257 P.3d at 178. The statute does not define the term “specialty” nor

does its plain language require that, when a party has multiple specialties, a testifying

expert must match each of those specialties, but rather only the relevant specialty, to

testify about the “appropriate standard of . . . care.” § 12-2604(A)(1). To interpret § 12-

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2604(A)(1) to require that a testifying expert match each specialty of a party with

multiple specialties goes far beyond the intent of the legislature as determined in

Awsienko and could lead to unmanageable and absurd results. See State v. Barragan-

Sierra, 219 Ariz. 276, ¶ 17, 196 P.3d 879, 885 (App. 2008) (“We employ a common

sense approach [when construing statutory language], reading the statute in terms of its

stated purpose and the system of related statutes of which it forms a part, while taking

care to avoid absurd results.”); see also Patches v. Indus. Comm’n, 220 Ariz. 179, ¶ 10,

204 P.3d 437, 440 (App. 2009) (“[C]ourts must, where possible, avoid construing statutes

in such a manner as to produce absurd or unconstitutional results.”).

¶12 In many cases where a party has multiple specialties or claimed specialties,

some of those specialties would have no relevance to the underlying claim and would not

determine “the appropriate standard of care.” Therefore, common sense would dictate

that the testifying expert need not be trained in those specialties. And, as we noted

above, we determined in Baker that the legislature chose “to base a testifying expert’s

qualifications . . . on the training and certification of the specialist.” 228 Ariz. 587, ¶ 10,

269 P.3d at 1215. Additionally, our interpretation of § 12-2604 is consistent with Rule

702, Ariz. R. Evid., which requires any expert to possess “scientific, technical, or other

specialized knowledge [that] will help the trier of fact to understand the evidence or to

determine a fact in issue.”

¶13 Moreover, a party with an uncommon or disparate set of specialties would

be insulated from a malpractice claim despite the fact that one or more of the party’s

8
specialties might be wholly unrelated to the merits of the claim. And, because § 12-

2604(A)(1) encompasses claimed specialties, such an interpretation might encourage

parties to claim specialties they arguably do not possess to further decrease the likelihood

that a qualifying expert could be found to testify against them. Neither of these results

furthers legislative intent, and both arguably are inconsistent with our constitution.

Article XVIII, § 6 of our constitution ensures that “[t]he right of action to recover

damages for injuries shall never be abrogated.” Thus, although the legislature may

regulate a right of action, “it must ‘leave[] a claimant reasonable alternatives or choices

which will enable him or her to bring the action. It may not, under the guise of

‘regulation,’ so affect the fundamental right to sue for damages as to effectively deprive

the claimant of the ability to bring the action.’” Duncan v. Scottsdale Medical Imaging,

Ltd., 205 Ariz. 306, ¶ 30, 70 P.3d 435, 442 (2003), quoting Barrio v. San Manuel Div.

Hosp. for Magma Copper Co., 143 Ariz. 101, 106, 692 P.2d 280, 285 (1984) (alteration

in Duncan). Although we do not suggest it would render the statute facially

unconstitutional, to interpret § 12-2604(A)(1) to require a testifying expert to match each

and every specialty claimed by a party could, in some cases, so limit a plaintiff’s ability

to secure an expert that his or her right of action would effectively be foreclosed. See

Baker, 228 Ariz. 587, ¶ 21, 269 P.3d at 1216-17 (rejecting claim § 12-2604(A)(1)

violates anti-abrogation clause in part because claimant “has not demonstrated that he

was unable to procure a testifying expert”). We decline to interpret the statute in such a

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way as to invite constitutional attack. See Patches, 220 Ariz. 179, ¶ 10, 204 P.3d at 440

(court must avoid unconstitutional result in interpreting statute).

¶14 Lo claims to be a plastic surgery specialist. Chao is a board-certified

plastic surgery specialist. Therefore, Chao is qualified under § 12-2604 to testify

concerning the appropriate standard of care.

¶15 As we understand his arguments, Lo further suggests that, because he is

board certified in ophthalmology, the second sentence of § 12-2604(A)(1) requires that

any testifying expert be board certified in ophthalmology irrespective of whatever other

specialties Lo may have or claim to have. The above analysis applies to this sentence

also. The second sentence of § 12-2604(A)(1) requires that the witness be board certified

in a specialty in which the party is board certified. But, Lo is not board certified in

plastic surgery, an ABMS specialty. Much like the statute’s first sentence, to read the

second sentence to require an expert also to be board certified in the same specialty in

which the party is board certified, when such specialty may have no application to the

appropriate standard of care, could improperly insulate the party from relevant expert

testimony regarding one of his or her other applicable specialties. We will not read the

statute to compel this absurd result. See Barragan-Sierra, 219 Ariz. 276, ¶ 17, 196 P.3d

at 885; Patches, 220 Ariz. 179, ¶ 10, 204 P.3d at 440.

¶16 For the reasons stated, we conclude the respondent judge did not abuse his

discretion in denying Lo’s motion to disqualify Mills’s expert and motion for summary

judgment. See Ariz. R. P. Spec. Actions 3(c) (special action relief appropriate when

10
respondent abused discretion); Sonoran Desert Investigators, Inc. v. Miller, 213 Ariz.

274, ¶ 5, 141 P.3d 754, 756 (App. 2006) (denial of motion for summary judgment

reviewed for abuse of discretion). Thus, although we accept jurisdiction of this special

action, we deny relief.

/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge

CONCURRING:

/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge

/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge*

*A retired judge of the Arizona Court of Appeals authorized and assigned to sit as
a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court
Order filed August 15, 2012.

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