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Expertise Required of Plaintiffs' Expert on Standard of Care in Medical Malpractice

Law Updates-Torts/Evidence-Expertise Required of Plaintiffs' Expert on Standard of Care in Medical Malpractice Baker v. University Physicians Healthcare, __Ariz. Adv. Rep. __ No. CV-12-0102-PR (March 12, 2013) (J. Bales) PLAINTIFFS' EXPERT ON STANDARD OF CARE IN MEDICAL MALPRACTICE MUST HOLD THE SAME SPECIALTY OR SUBSPECIALTY OF DEFENDANT IF THE NATURE OF THE CARE AND TREATMENT AT ISSUE FALLS WITHIN THE SPECIALTY HELD OR CLAIMED BY THE DEFENDANT-"SPECIALTY" MEANS BOARD CERTIFICATION IN THE AREA AND "CLAIMED SPECIALTY" MEANS AREA OF SPECIALIZATION WHERE BOARD CERTIFICATION IS AVAILABLE BUT NOT HELD BY DEFENDANT

Plaintiffs' child died under the care of the defendant doctor and her employer. Plaintiffs sued for medical malpractice resulting in wrongful death. The defendant doctor is certified in pediatrics and in the recognized subspecialty of pediatric hematology-oncology. Plaintiffs' expert on the standard of care is certified in internal medicine and in the recognized subspecialties of hematology and medical oncology but not in pediatrics. Arizona Revised Statutes 12-2604 requires plaintiffs' expert on the standard of care share a certification in the same specialty as the defendant. However, the statute does not define specialty or certification. The defendant moved for summary judgment arguing the plaintiffs' expert did not meet the requirements of the statute. The trial court agreed. On appeal the plaintiff challenged the constitutionality of the statute. The Arizona Court of Appeals affirmed in part holding that ARS 12-2604 refers to the 24 specialties recognized by the American Board of Medical Standards and directing the trial court to allow plaintiff more time to find another expert. The constitutional challenge was rejected. The Arizona Supreme Court accepted review, reversed and remanded.

The supreme court first noted that the focus in applying the statute must be on the nature of the care and treatment at issue in the case. When the care or treatment falls within the medical specialty held by the defendant then plaintiffs' expert must share that specialty. Conversely, the fact the defendant specializes in an area unrelated to the nature of the care and treatment is irrelevant and the plaintiffs' expert need not hold the irrelevant specialty. Specialty is defined as a "limited area" in the medical field in which the defendant "is or may become board certified." Subspecialties which provide board certification are included. When the care or treatment at issue falls within such a "specialty" or "subspecialty" the defense expert must share that specialization. Where the defendant is board certified in the area, so must the plaintiffs' expert be board certified. Hence, in the instant case the care and treatment fell within the expertise of a pediatric hematologist so the plaintiffs' expert is required to likewise be a pediatric hematologist. It matters not that non-pediatric hematologists are able to treat patients like plaintiffs' decedent.

A "claimed specialty" is one that a physician says he is specialized in and in which board certification is available but not held by the defendant regardless of whether or not the defendant limits his practice to that specialized area. Thus, if the defendant claims he specializes in pediatric hematology but does not hold board certification in the area the plaintiffs' expert must also practice in the area of pediatric hematology and may or may not be board certified in that specialty. Again, the first question is does the care and treatment at issue fall within the claimed specialty of pediatric hematology.

Finally, applying the rational basis test the court found that the Arizona Constitution prohibiting "specialty laws" Ariz. Const. Art. 4, pt. 2 sec. 19 (3)(5)&(6) which attempt to regulate the rules of evidence or right to bring a claim, was not violated.

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