Awsienko v. Cohen
227 Ariz. 256
| Ariz. Ct. App. | 2011Background
- Awsienko family sued Dr. Cohen and Dr. Hoelzinger for medical malpractice after Awsienko's death in 2006 at Banner Desert Medical Center.
- Dr. Cohen (internal medicine and nephrology) and Dr. Hoelzinger (cardiovascular disease/interventional cardiology) treated Awsienko.
- The Awsienkos disclosed Dr. James Wilson as the standard-of-care expert; Wilson was board-certified in internal medicine (2002) and nephrology (2007).
- Cohen and Hoelzinger moved for summary judgment arguing Wilson did not meet A.R.S. § 12-2604(A)(1).
- The superior court granted summary judgment for both doctors; Awsienkos appealed.
- Arizona Court of Appeals affirmed for Hoelzinger but reversed for Cohen, holding 12-2604(A)(1) does not require board-certification at the time of the occurrence for testimony against a board-certified defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 12-2604(A)(1) require time-of-occurrence board-certification? | Awsienko: not required to be board-certified then; post-occurrence certification allowed. | Cohen: statute requires contemporaneous board-certification. | Statute does not require certification at time of occurrence. |
| Can Wilson testify against Cohen despite not being nephrology board-certified at treatment time? | Awsienko: Wilson was qualified as specialist under statute. | Cohen: Wilson not board-certified nephrology; not qualified. | Court allowed testimony; Cohen's summary judgment reversed on this basis. |
| Did Wilson's testimony against Hoelzinger show a standard-of-care violation or causation? | Awsienko: Wilson criticized Hoelzinger's care. | Hoelzinger: Wilson did not opine a violation or causation. | Summary judgment affirmed for Hoelzinger; no admissible breach proved. |
Key Cases Cited
- Bilke v. State, 206 Ariz. 462 (Ariz. 2003) (interpret statute to fulfill legislative intent)
- N. Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301 (Ariz. 2004) (plain language governs; avoid repugnancy)
- Midtown Med. Group, Inc. v. State Farm Mut. Auto. Ins. Co., 206 P.3d 790 (Ariz. App. 2008) (avoid inserting omitted terms; adhere to exact language)
- Gen. Motors Acceptance Corp. v. Arizona Dept. of Revenue, 937 P.2d 363 (Ariz. App. 1996) (statutory interpretation without conflict with legislative intent)
- Woodard v. Custer, 719 N.W.2d 842 (Mich. 2006) (comparable statute interpretation principle)