A.R.S. § 12-2603 - Everything You Need to Know About Affidavits of Merit

Subsection (A) of A.R.S. § 12-2603 requires a party to certify at the time a case is filed "whether or not expert opinion testimony is necessary to prove the health care professional's standard of care or liability for the claim." The rule does not require that the type of expert testimony be identified, simply an indication of whether "expert opinion testimony" is necessary. This portion of the statute is comparable to certifying whether a case is subject to compulsory arbitration.

B. Provide Expert Opinion Affidavit With Initial Disclosure.

Pursuant to subsection (B) of A.R.S. § 12-2603, a claimant who certifies pursuant to subsection (A) that expert opinion testimony is necessary shall serve a preliminary expert opinion affidavit with the initial Rule 26.1, Arizona Rules of Civil Procedure, disclosure statement. If a party designates a nonparty at fault and certifies pursuant to subsection (A) that expert opinion testimony is necessary, that party shall serve a preliminary expert opinion affidavit within sixty days after filing the designation. The claimant or the party designating a nonparty at fault mayprovide affidavits from as many experts as the claimant or the party designating a nonparty at fault deems necessary. The preliminary expert opinion affidavit shall contain at least the following information:

At this time, there are no Arizona appellate decisions analyzing the specificity required to comply with A.R.S. § 12-2603(B). If the preliminary expert affidavit is alleged to be insufficient, subsection (F) of A.R.S. § 12-2603 requires that the court "allow any party a reasonable time to cure any affidavit, if necessary." Therefore, counsel should exercise professional judgment when determining what information should be set forth in the preliminary expert affidavit.

C. If Good Cause Exists, Request An Extension to File Affidavit.

Subsection (C) of A.R.S. § 12-2603 permits the court to "extend the time for compliance with this section on application and good cause shown or by stipulation of the parties to the claim. If the court extends the time for compliance, the court may also adjust the timing and sequence of disclosures that are required from the health care professional against whom the claim is asserted or the designated nonparty at fault."

When arguing good cause for extending the deadline for filing the expert affidavit, outline why initial discovery and disclosures (including the defendant medical practitioner’s deposition) will likely uncover the underlying thought processes, decisional criteria, and risks as assessed by the defendant that are highly relevant to the formation of an opinion, even a preliminary opinion, on liability.

If the claimant or the party designating the nonparty at fault certifies that expert testimony is notrequired pursuant to subsection (A) of A.R.S. § 12-2603 and the certification is disputed, subsection (D) of A.R.S. § 12-2603 permits the non-designating party to "apply by motion to the court for an order requiring the claimant or the party designating the nonparty at fault to obtain and serve a preliminary expert opinion affidavit." The motion is required to identify the following:

After considering the motion and any response, the court shall determine whether the claimant or party designating the nonparty at fault shall provide a preliminary expert opinion affidavit and, if the court deems that an affidavit is necessary, shall set a date and terms for the affidavit.

E. The Affidavit May Be Used For Impeachment Only in Limited Circumstances.

Pursuant to subsection (G) of A.R.S. § 12-2603, "a preliminary expert opinion affidavit may be used for impeachment only upon a finding of the court that the facts upon which the affidavit were based have not substantially changed and that the facts were known to the expert at the time the affidavit was prepared."

With the recent passage of A.R.S. § 12-2604, requiring medical experts to meet certain qualifications before providing testimony , a question has arisen whether an expert providing a preliminary expert affidavit has to qualify under A.R.S. § 12-2604. Until an appellate court states otherwise, the two statutes should be treated as separate and distinct.

A.R.S. § 12-2603(H)(2) defines expert as "a person who is qualified by knowledge, skill, experience, training or education to express an opinion regarding a licensed health care professional's standard of care or liability for the claim." This definition squares with the traditional rules regarding medical expert qualifications. See Perguson v. Tamis, 188 Ariz. 425, 937 P.2d 347 (App. 1996) (stating "an expert witness may be qualified to give an opinion in a medical malpractice case by reason of his or her actual experience, study, education, observation or association. The expert need not be of the same medical specialty as the malpractice defendant. The test in every case is whether the witness possesses special knowledge about the subject at issue which will assist the jury in making its decisions.") Moreover, the "purpose" behind A.R.S. § 12-2603, to "curtail the filing of frivolous lawsuits against health care professionals," is served by procuring an affidavit of an expert qualified under the traditional legal standard rather than the legislatively created standard set forth in A.R.S. § 12-2604.

A similar question arises regarding whether more than one affidavit is necessary when the lawsuit involves numerous health care professionals in different specialties. Again, if the expert providing the preliminary expert affidavit is qualified by "actual experience, study, education, observation or association" to express opinions in the various specialties, then one affidavit should be sufficient to serve the purpose behind A.R.S. § 12-2603.

Finally, A.R.S. § 12-2603 does not require that the expert providing the preliminary expert affidavit be the same expert that testifies at trial. Depending on the circumstances of the case, it may make sense to use an expert simply to provide a preliminary expert affidavit.

A.R.S. § 12-2603 infringes upon a plaintiff’s constitutional right to bring a claim. It also impermissibly violates the Arizona Constitution’s separation of powers clause by interfering with the judiciary’s control over trial procedure.