Awsienko v. Cohen

• Decision Date: 12 May 2011
• Docket Number: No. 1 CA–CV 10–0376.,1 CA–CV 10–0376.
• Citation: Awsienko v. Cohen, 227 Ariz. 256, 257 P.3d 175, 608 Ariz. Adv. Rep. 8 (Ariz. App. 2011)
• Parties: Halina AWSIENKO, surviving spouse; Nina Awsienko, surviving child; and Oleg Awsienko, surviving child, Plaintiffs/Appellants,v.Robert Steven COHEN, D.O. and Jane Doe Cohen, husband and wife; David Hoelzinger, M.D. and Dominique Beatriz Hoelzinger, husband and wife, Defendants/Appellees.
• Court: Arizona Court of Appeals

227 Ariz. 256

257 P.3d 175

608 Ariz. Adv. Rep. 8

Halina AWSIENKO, surviving spouse; Nina Awsienko, surviving child; and Oleg Awsienko, surviving child, Plaintiffs/Appellants,

v.Robert Steven COHEN, D.O. and Jane Doe Cohen, husband and wife; David Hoelzinger, M.D. and Dominique Beatriz Hoelzinger, husband and wife, Defendants/Appellees.

No. 1 CA–CV 10–0376.

Court of Appeals of Arizona, Division 1, Department B.

May 12, 2011.

The Rosacci Law Firm, P.C. by Antonio M. Rosacci, Phoenix, Attorneys for Plaintiffs/Appellants Awsienko.The Cavanagh Law Firm, P.A. by Mary G. Pryor, Taylor C. Young, Phoenix, Attorneys for Defendant/Appellee Cohen.Jennings, Strouss & Salmon, P.L.C. by John J. Egbert, Frederick M. Cummings, Phoenix, Attorneys for Defendants/Appellees Hoelzinger.

OPINION

KESSLER, Presiding Judge.

¶ 1 Plaintiffs/Appellants Halina, Nina, and Oleg Awsienko (the “Awsienkos”) appeal the superior court's summary judgments in favor of Defendants/Appellees David Hoelzinger, M.D. and Robert Steven Cohen, D.O. We affirm the judgment in favor of Dr. Hoelzinger. However, we reverse the judgment in favor of Dr. Cohen because we hold that pursuant to Arizona Revised Statutes (“A.R.S.”) section 12–2604(A)(1) (Supp. 2010), an expert witness testifying against a board-certified specialist in a medical malpractice action need not be board-certified in the same specialty as the defendant at the time of the underlying incident. Accordingly, we affirm in part, reverse in part and remand for further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 This case arises out of a medical malpractice and wrongful death action related to the care and treatment of Filip Awsienko (“Awsienko”). After multiple hospitalizations at several medical facilities, Awsienko suffered a cardiac arrest at Banner Desert Medical Center and died in 2006. Dr. Cohen, who is board-certified in internal medicine and nephrology, participated in Awsienko's care at Banner Desert Medical Center. Dr. Hoelzinger, who is board-certified in cardiovascular disease and interventional cardiology, also treated Awsienko. Awsienko's family filed this action against Drs. Cohen and Hoelzinger, several other treating physicians, and several hospitals, alleging medical negligence resulting in Awsienko's death.

¶ 3 The Awsienkos disclosed James Wilson, M.D., as their standard of care expert against Drs. Cohen and Hoelzinger. Dr. Wilson achieved board certification in internal medicine in 2002 and in nephrology in 2007.

¶ 4 After the discovery deadline, Drs. Cohen and Hoelzinger moved for summary judgment. They argued that Dr. Wilson did not meet the requirements of A.R.S § 12–2604(A)(1) for expert witnesses and therefore could not testify that Drs. Cohen and Hoelzinger failed to meet the applicable standard of care, thus precluding the Awsienkos from establishing a prima facie case of negligence. Dr. Hoelzinger also argued he was entitled to summary judgment because Dr. Wilson had not opined that Dr. Hoelzinger had violated the applicable standard of care or caused injury to Awsienko.

¶ 5 The Awsienkos maintained that Dr. Wilson satisfied the statutory requirements of A.R.S. § 12–2604(A)(1). They also asserted that Dr. Hoelzinger had never claimed that he was a specialist, that their cause of action against him did not arise from a violation of the standard of care related to either of his specialties, and that Dr. Wilson had opined that Dr. Hoelzinger breached the standard of care and caused Awsienko's injury. They requested, in the alternative, that if the court determined they could not rely on Dr. Wilson's opinion to establish a prima facie case against Dr. Cohen or Dr. Hoelzinger it grant them leave to retain a new expert.

¶ 6 The court entered summary judgment for Drs. Cohen and Hoelzinger and included a determination of finality pursuant to Arizona Rule of Civil Procedure 54(b). The Awsienkos timely appealed. We have jurisdiction pursuant to A.R.S. § 12–2101(B) (2003).

DISCUSSION

¶ 7 A court may grant summary judgment when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1). We view the evidence in the light most favorable to the Awsienkos, against whom judgment was entered, and determine de novo whether there are genuine issues of material fact and whether the trial court erred in its application of the law. Unique Equip. Co. v. TRW Vehicle Safety Sys., Inc., 197 Ariz. 50, 52, ¶ 5, 3 P.3d 970, 972 (App.1999).

¶ 8 Arizona law requires a plaintiff who asserts a medical negligence claim against a health care professional to prove that the health care professional failed to comply with the applicable standard of care. A.R.S. § 12–563 (2003). If the plaintiff intends to establish the standard of care through expert testimony, the expert must meet certain minimum qualifications:

If the party against whom ... the testimony is offered is or claims to be a specialist, [the witness must] specialize [ ] at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom ... the testimony is offered. If the party against whom ... the testimony is offered is or claims to be a specialist who is board-certified, the expert witness shall be a specialist who is board-certified in that specialty or claimed specialty.

A.R.S. § 12–2604(A) (emphasis added).

¶ 9 This case concerns the requirements applicable to a plaintiff's expert witness when, like Drs. Cohen and Hoelzinger, the defendant in a medical malpractice action is a board-certified specialist. Dorland's Illustrated Medical Dictionary (28th ed. 1994) defines a “specialist” as “a physician whose practice is limited to a particular branch of medicine or surgery, especially one who, by virtue of advanced training, is certified by a specialty board as being qualified to so limit his practice.” Id. at 1551. In Arizona, a physician may specialize in a particular area of medicine without being board-certified.¹

A. Dr. Cohen

¶ 10 Dr. Cohen moved for summary judgment on the grounds that because Dr. Wilson was not board-certified in nephrology at the time Dr. Cohen treated Awsienko, he is not qualified under A.R.S. section 12–2604(A) to serve as an expert witness regarding the appropriate standard of care. The Awsienkos argue the superior court erred in granting the motion because the statute does not require the expert to be board-certified at the time of the alleged malpractice. We review questions of statutory interpretation de novo. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994).

¶ 11 Our goal when interpreting a statute is “to fulfill the intent of the legislature that wrote it.” Bilke v. State, 206 Ariz. 462, 464, ¶ 11, 80 P.3d 269, 271 (2003) (quoting Hayes v. Cont'l Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994)). A statute's language is “the best and most reliable index” of its meaning. N. Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, 303, ¶ 9, 93 P.3d 501, 503 (2004) (citation omitted). “If the language is clear, the court must ‘apply it without resorting to other methods of statutory interpretation,’ unless application of the plain meaning would lead to impossible or absurd results.” Bilke, 206 Ariz. at 464, ¶ 11, 80 P.3d at 271 (quoting Hayes, 178 Ariz. at 268, 872 P.2d at 672). “It is only where there is no doubt as to the intention of those who frame an amendment or statute that a court may modify, alter, or supply words that will ‘obviate any repugnancy to or inconsistence with such intention,’ and by so doing permit ‘particular provisions' to be read or construed otherwise than ‘according to their literal meaning.’ ” Bd. of Supervisors v. Pratt, 47 Ariz. 536, 542, 57 P.2d 1220, 1223 (1936) (quoting Clark v. Boyce, 20 Ariz. 544, 553, 185 P. 136, 140 (1919)).

¶ 12 The language of the statute does not require an expert testifying about the standard of care applicable to a board-certified defendant to have been board-certified at the time of the occurrence. See A.R.S. § 12–2604(A)(1). Nevertheless, Dr. Cohen urges us to read such a requirement into the statute, arguing that the first sentence of subsection (A)(1) limits the term “specialist” to those who specialized at the time of the occurrence and that limitation should then apply to the “subset” of specialists addressed in the second sentence of subsection (A)(1), those who are board-certified. We will not do so for three independent reasons.

¶ 13 First, nothing in the text of subsection (A)(1) indicates that the legislature intended the first sentence to limit the second sentence. Second, the limited statutory history available reflects that the legislature sought to ensure that physicians testifying as experts have sufficient expertise to truly assist the fact-finder on issues of standard of care and proximate causation. E.g., S.B. 1036, 47th Legislature—First Regular Session, Minutes of House Committee on Health (March 23, 2005). It is plain from the first sentence of section 12–2604(A) that the legislature intended that expert testimony from a person who claimed to be a specialist only after the underlying incident would not support a malpractice action. In contrast, it is possible the legislature recognized that obtaining board-certification is a time-consuming process and it did not intend to prohibit expert testimony from a physician simply because the physician had become board-certified after the underlying incident. Indeed, it would be inconsistent with the legislative intent to prohibit a physician from testifying simply because she had become board-certified a day or a week after the underlying incident when the process of board certification stretched to a period far before that incident.

¶ 14 Third, as a matter of judicial restraint, courts will only modify statutory language when...