Caravetta v. Duick
1 CA-CV 16-0105
| Ariz. Ct. App. | Mar 7, 2017Background
- Caravetta sued Dr. Daniel Duick and Endocrinology Associates in Jan 2015 for medical malpractice arising from events in Aug 2012.
- She failed to certify in her complaint whether expert testimony was necessary as required by A.R.S. § 12-2603(A).
- Defendants moved to compel a preliminary expert opinion affidavit under A.R.S. § 12-2603(D); the superior court ordered Caravetta to serve one and later extended the deadline.
- Caravetta filed an affidavit from a board-certified emergency medicine physician but acknowledged it was "unacceptable" and sought to modify it.
- The court found the emergency medicine expert was not qualified to opine on the standard of care for a board-certified internal medicine/endocrinology specialist under A.R.S. § 12-2604(A)(1), gave additional time to cure, and ultimately dismissed the action without prejudice after Caravetta failed to timely provide a compliant affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the preliminary expert affidavit complied with A.R.S. § 12-2603 and § 12-2604 qualifications | Caravetta argued the filed affidavit was sufficient or could be cured; also suggested records might substitute for an affidavit | Defendants argued the emergency medicine expert lacked the required specialty qualification to opine on an internist/endocrinologist’s standard of care | The court held the affidavit was insufficient because the expert was not board-certified in the same specialty; dismissal was proper after noncompliance |
| Whether the court abused its discretion in finding the expert unqualified | Caravetta contended she could not obtain a qualified expert; asserted practical obstacles and proposed alternatives | Defendants maintained statutory qualification rules control and noncompliance warrants dismissal | Court affirmed that qualification determinations are reviewed for abuse of discretion and found none; statutory requirements govern and alternatives (e.g., records in lieu) are not authorized |
| Whether alternatives to the statutory affidavit (e.g., using medical records or testimony at hearing) were permissible | Caravetta suggested alternative measures could substitute for the affidavit | Defendants argued the statute prescribes the required procedure and no substitution exists | Court rejected substitutes, citing § 12-2603 and precedent; the statute mandates the affidavit and dismissal upon failure to comply |
| Whether dismissal without prejudice was appealable/final given statute of limitations | Caravetta implicitly challenged dismissal as improper | Defendants relied on controlling precedent that such dismissals are final appeals when limitations have run | Court noted controlling authority (Garza) and exercised jurisdiction; affirmed dismissal |
Key Cases Cited
- Garza v. Swift Transp. Co., 222 Ariz. 281 (clarifies final, appealable nature of dismissals without prejudice when limitations have run)
- Romero v. Hasan, 338 P.3d 22 (App.) (rejects substituting alternative procedures for the statutorily required preliminary affidavit)
- Baker v. Univ. Physicians Healthcare, 231 Ariz. 379 (addresses standard of review for expert-qualification determinations)
- Cornerstone Hosp. of Se. Ariz., L.L.C. v. Marner ex rel. Cty. of Pima, 231 Ariz. 67 (explains § 12-2604 controls expert qualification for § 12-2603 affidavits)
- Coleman v. City of Mesa, 230 Ariz. 352 (discusses de novo review of dismissals under § 12-2603)
- State v. Keener, 110 Ariz. 462 (supports abuse-of-discretion standard for certain trial-court determinations)