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Senate
Engrossed
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State of
Senate
Forty-sixth
Legislature
Second Regular
Session
2004
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SENATE
BILL 1113
------------------------ AN ACT AMENDING TITLE 12, CHAPTER 17, ARTICLE 1,
Be it
enacted by the Legislature of the State of Section 1.
Title 12, chapter 17, article 1, Arizona Revised Statutes, is amended by adding
section 12-2602.01, to read: 12-2602.01.
Preliminary expert opinion
testimony against health care professionals; certification;
definitions A. IF A CLAIM AGAINST A HEALTH CARE
PROFESSIONAL IS ASSERTED IN A CIVIL ACTION, THE CLAIMANT OR THE PARTY
DESIGNATING A NONPARTY AT FAULT OR ITS ATTORNEY SHALL CERTIFY IN A WRITTEN
STATEMENT THAT IS FILED AND SERVED WITH THE CLAIM OR THE DESIGNATION OF NONPARTY
AT FAULT WHETHER OR NOT EXPERT OPINION TESTIMONY IS NECESSARY TO PROVE THE
HEALTH CARE PROFESSIONAL'S STANDARD OF CARE OR LIABILITY FOR THE
CLAIM. B. IF THE CLAIMANT OR THE PARTY DESIGNATING
A NONPARTY AT FAULT OR ITS ATTORNEY CERTIFIES PURSUANT TO SUBSECTION H OF THIS
SECTION THAT EXPERT OPINION TESTIMONY IS NECESSARY, THE CLAIMANT SHALL SERVE A
PRELIMINARY EXPERT OPINION AFFIDAVIT WITH THE INITIAL DISCLOSURES THAT ARE
REQUIRED BY RULE 26.1, ARIZONA RULES OF CIVIL PROCEDURE. IF A PARTY DESIGNATES A
NONPARTY AT FAULT AND CERTIFIES PURSUANT TO SUBSECTION H OF THIS SECTION 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 MAY PROVIDE 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: 1. THE EXPERT'S QUALIFICATIONS TO EXPRESS
AN OPINION ON THE HEALTH CARE PROFESSIONAL'S STANDARD OF CARE OR LIABILITY FOR
THE CLAIM. 2. THE FACTUAL BASIS FOR EACH CLAIM AGAINST
A HEALTH CARE PROFESSIONAL. 3. THE HEALTH CARE PROFESSIONAL'S ACTS,
ERRORS OR OMISSIONS THAT THE EXPERT CONSIDERS TO BE A VIOLATION OF THE
APPLICABLE STANDARD OF CARE RESULTING IN LIABILITY. 4. THE MANNER IN WHICH THE HEALTH CARE
PROFESSIONAL'S ACTS, ERRORS OR OMISSIONS CAUSED OR CONTRIBUTED TO THE DAMAGES OR
OTHER RELIEF SOUGHT BY THE CLAIMANT. C. THE COURT MAY 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. D. IF THE CLAIMANT OR THE PARTY DESIGNATING
THE NONPARTY AT FAULT OR ITS ATTORNEY CERTIFIES THAT EXPERT TESTIMONY IS NOT
REQUIRED FOR THE CLAIM OR DESIGNATION AND THE CLAIMANT, THE HEALTH CARE
PROFESSIONAL OR DESIGNATED NONPARTY AT FAULT DISPUTES THAT CERTIFICATION IN GOOD
FAITH, THE CLAIMANT, THE HEALTH CARE PROFESSIONAL OR THE DESIGNATED NONPARTY AT
FAULT MAY 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 UNDER THIS SECTION. IN THE MOTION, THE CLAIMANT, THE
HEALTH CARE PROFESSIONAL OR THE DESIGNATED NONPARTY AT FAULT SHALL IDENTIFY THE
FOLLOWING: 1. THE CLAIM FOR WHICH IT BELIEVES EXPERT
TESTIMONY IS NEEDED. 2. THE PRIMA FACIE ELEMENTS OF THE
CLAIM. 3. THE LEGAL OR FACTUAL BASIS FOR ITS
CONTENTION THAT EXPERT OPINION TESTIMONY IS REQUIRED TO ESTABLISH THE STANDARD
OF CARE OR LIABILITY FOR THE CLAIM. E. AFTER CONSIDERING THE MOTION AND ANY
RESPONSE, THE COURT SHALL DETERMINE WHETHER THE CLAIMANT OR PARTY DESIGNATING
THE NONPARTY AT FAULT SHALL COMPLY WITH THIS SECTION AND, IF THE COURT DEEMS
THAT COMPLIANCE IS NECESSARY, SHALL SET A DATE AND TERMS FOR COMPLIANCE. THE
COURT SHALL STAY ALL OTHER PROCEEDINGS AND APPLICABLE TIME PERIODS CONCERNING
THE CLAIM PENDING THE COURT'S F. THE COURT, ON ITS OWN MOTION OR THE
MOTION OF THE HEALTH CARE PROFESSIONAL OR DESIGNATED NONPARTY AT FAULT, SHALL
DISMISS THE CLAIM AGAINST THE HEALTH CARE PROFESSIONAL OR DESIGNATED NONPARTY AT
FAULT WITHOUT PREJUDICE IF THE CLAIMANT OR THE PARTY DESIGNATING THE NONPARTY AT
FAULT FAILS TO FILE AND SERVE A PRELIMINARY EXPERT OPINION AFFIDAVIT AFTER THE
CLAIMANT OR DESIGNATED NONPARTY AT FAULT OR ITS ATTORNEY HAS CERTIFIED THAT AN
AFFIDAVIT IS NECESSARY OR THE COURT HAS ORDERED THE CLAIMANT OR THE PARTY
DESIGNATING A NONPARTY AT FAULT TO FILE AND SERVE AN AFFIDAVIT. UPON ANY
ALLEGATION OF INSUFFICIENCY OF THE AFFIDAVIT, THE COURT SHALL ALLOW ANY PARTY A
REASONABLE TIME TO CURE ANY AFFIDAVIT, IF
NECESSARY. G. A CLAIMANT OR A PARTY DESIGNATING A
NONPARTY AT FAULT MAY SUPPLEMENT A CLAIM OR PRELIMINARY EXPERT OPINION AFFIDAVIT
WITH ADDITIONAL CLAIMS, EVIDENCE OR EXPERT OPINIONS THAT ARE TIMELY DISCLOSED
UNDER THE H. FOR THE PURPOSES OF THIS
SECTION: 1. "CLAIM" MEANS A LEGAL CAUSE OF ACTION
AGAINST A HEALTH CARE PROFESSIONAL UNDER SECTIONS 12-561 THROUGH 12-563 OR UNDER
TITLE 46, CHAPTER 4 OR AN AFFIRMATIVE DEFENSE OR DESIGNATION OF A NONPARTY AT
FAULT TO WHICH ALL OF THE FOLLOWING APPLY: (A) THE CLAIM IS ASSERTED AGAINST A HEALTH
CARE PROFESSIONAL IN A COMPLAINT, ANSWER, CROSS-CLAIM, COUNTERCLAIM, THIRD PARTY
COMPLAINT OR DESIGNATION OF A NONPARTY AT FAULT. (b) THE CLAIM IS BASED ON THE HEALTH CARE
PROFESSIONAL'S ALLEGED BREACH OF CONTRACT, NEGLIGENCE, MISCONDUCT, ERRORS OR
OMISSIONS IN RENDERING PROFESSIONAL
SERVICES. (c) EXPERT TESTIMONY IS NECESSARY TO PROVE THE
HEALTH CARE PROFESSIONAL'S STANDARD OF CARE OR LIABILITY FOR THE
CLAIM. 2. "EXPERT" MEANS 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. Sec. 2.
Purpose The
legislature declares that the purpose of section 12-2602.01, Arizona Revised
Statutes, is to curtail the filing of frivolous lawsuits against health care
professionals and the filing of frivolous nonparty at fault designations by
health care professionals. |