The Need For and Difficulty in Locating Well-Qualified Experts in Medical Malpractice Cases in Arizona
To Successfully Present A Medical Malpractice Case in Arizona, There are Stringent Requirements Relating to the Expert Testimony A Plaintiff Must Offer
In almost all cases of medical malpractice in Arizona, the injured party (plaintiff) will need at the very least a standard of care expert, a causation expert and one or more damage experts. These are three different areas of testimony. In certain instances an expert may cover more than one of these three areas, but often not. Other experts will also be required to prove damages, such as economists, vocational experts, CPA’s, etc. It should be obvious that there should be full development of which experts will support the case early in the process.
The threshold qualification for standard of care experts is governed primarily by A.R.S. 12-2604 which requires that:
- The proposed standard of care expert practice in the same specialty as the defendant medical provider, and be board certified in that specialty if the defendant is board certified
- The proposed expert devoted a majority of their professional time to either, or both, of the following:
- Active clinical practice in the same profession (and specialty, if applicable) as the defendant; and/or
- The instruction of students (in an appropriately accredited program).
A.R.S. 12-2604 was enacted in 2005, and thus remains a trap for the unwary. Nonetheless the statute has already been held constitutional by the Arizona Supreme Court so compliance is essential. When hiring standard of care experts in compliance with this statute, the focus of the plaintiff’s attorney must also be on making certain that the standard of care expert meets the requirements of the statute during the year immediately preceding the treatment in question. It is not good enough to hire an expert who met the requirement of the statutes years before, or years later and will not satisfy the statute. The attorney therefore, in initially contacting and retaining the experts, should be fully aware of the requirements of the law. A recent finding by the Arizona Supreme Court has reinforced the stringency of these statutory requirements all the more.
Standard of Care Witnesses Must Also Be Disclosed Very Early in the Case
Arizona also has a statute requiring the disclosure of expert witnesses in medical malpractice cases. Pursuant to A.R.S. 12-2603 at the outset of a claim against a healthcare provider, the plaintiff or any party designating a health care professional as a non- party at fault, must certify in writing whether or not expert testimony is necessary to prove the claim. If plaintiff’s claim requires expert testimony, plaint must serve a preliminary expert opinion affidavit with his or her initial Rule 26.1 Disclosure Statement, a Statement which must be filed early in the case.
Experts retained to satisfy the causation element of A.R.S. 12-563(2) need not meet such stringent standards. All witnesses must pass the standard set forth in Rule 702 of the Arizona Rules of Procedure.
There is one additional rule which should be considered. Rule 26 (b)(4)(D) states that in medical malpractice cases, “each side shall presumptive be entitled to only one independent expert on an issue, except upon a showing of good cause.” If there are multiple parties on one side, and they cannot agree on an expert, the court twill either designate a single independent expert, or grant leave for and additional independent expert The rule also limits each part (not each side) to one independent standard of care expert, although a defending heath care profession may testify on his or her own standard of care in addition to retaining an independent expert. The fact that the defendant professional may testify does not give the plaintiff the right to call an additional independent standard of care expert.
The Need For and Difficulty in Locating Experts in a Medical Malpractice Case
Because of the stringent rules set forth above concerning who can testify as an expert witness in an Arizona Medical Malpractice case, good expert witnesses are very difficult to find. Often times plaintiff’s attorneys have difficulties finding experts from the State of Arizona because the medical community is small and closely net and most qualified physicians are not interested in opposing their own fellow-professionals As a result, many experts must be found out-of-state. The ability to find and retain good experts is critical to success of good medical malpractice attorneys. Well qualified experts who are willing to testify also are not hesitant to charge very consulting and trial fees.