Baker v. Univ. Physicians Healthcare

• Decision Date: 22 February 2012
• Docket Number: No. 2 CA–CV 2011–0080.,2 CA–CV 2011–0080.
• Citation: 628 Ariz. Adv. Rep. 44,228 Ariz. 587,269 P.3d 1211
• Parties: Robert BAKER, on behalf of himself and all those entitled to recover for the death of Tara Baker, Plaintiff/Appellant, v. UNIVERSITY PHYSICIANS HEALTHCARE, an Arizona corporation; Brenda J. Wittman, M.D. and John Doe Wittman, wife and husband; Arizona Board of Regents doing business as University of Arizona College of Medicine, Defendants/Appellees.
• Court: Arizona Court of Appeals

228 Ariz. 587

269 P.3d 1211

628 Ariz. Adv. Rep. 44

Robert BAKER, on behalf of himself and all those entitled to recover for the death of Tara Baker, Plaintiff/Appellant,

v.UNIVERSITY PHYSICIANS HEALTHCARE, an Arizona corporation; Brenda J. Wittman, M.D. and John Doe Wittman, wife and husband; Arizona Board of Regents doing business as University of Arizona College of Medicine, Defendants/Appellees.

No. 2 CA–CV 2011–0080.

Court of Appeals of Arizona, Division 2, Department A.

Feb. 22, 2012.

Law Office of JoJene Mills, P.C. By JoJene E. Mills, Tucson, Attorney for Plaintiff/Appellant.

Campbell, Yost, Clare & Norell, P.C. By Stephen C. Yost, Phoenix, Attorney for Defendants/Appellees.

OPINION

HOWARD, Chief Judge.

¶ 1 In this wrongful death action, appellant Robert Baker appeals from the trial court's grant of summary judgment in favor of appellees Dr. Brenda Wittman, University Physicians Healthcare (UPH), and the Arizona Board of Regents (ABOR), based on Baker's failure to present expert testimony in compliance with the requirements of A.R.S. § 12–2604(A)(1). Because Baker's expert failed to comply with the statute's requirements and we do not find the statute invalid, we conclude the trial court decided the matter correctly based on the state of the law at the time. However, because we clarify the statutory requirements, we vacate the judgment and remand for further proceedings consistent with this decision.

Factual and Procedural Background

¶ 2 In reviewing a grant of summary judgment, “[w]e view the facts in the light most favorable to the party against whom summary judgment was entered.” Hamill v. Mid–Century Ins. Co., 225 Ariz. 386, ¶ 2, 238 P.3d 654, 655 (App.2010). However, the facts here are largely uncontested. Baker's daughter, Tara, consulted Wittman after being hospitalized for blood clots. She later died due to other blood clots as a result of alleged malpractice. Wittman, an employee of UPH, is certified by the American Board of Pediatrics in the specialty of pediatrics with a subspecialty in pediatric hematology/oncology. Baker sued appellees and others for Tara's wrongful death, claiming Wittman breached the standard of care, resulting in Tara's death.

¶ 3 Baker disclosed Dr. Robert Brouillard as his expert to testify that Wittman had breached the standard of care. Brouillard is certified by the American Board of Internal Medicine as a specialist in internal medicine with subspecialties in oncology and hematology. Wittman, UPH, and ABOR moved for summary judgment, arguing that Brouillard was not board certified in the same specialty as Wittman and thus failed to qualify as an expert under A.R.S. § 12–2604. Baker responded that Brouillard was qualified under the statute and that if he was not, the statute was unconstitutional. The trial court concluded that Brouillard was not qualified to testify as an expert against Wittman, rejected Baker's claims concerning the validity of the statute, and granted Wittman, UPH, and ABOR's motion for summary judgment. After the court entered final judgment pursuant to Rule 54(b), Ariz. R. Civ. P., Baker appealed.

Statutory Interpretation

¶ 4 Baker first claims the trial court erred in granting summary judgment because Brouillard is qualified to testify about the standard of care under § 12–2604. He argues that both Brouillard and Wittman were trained in hematology, urges we conclude that hematology was the specialty at issue, and cites the website from the American Society of Hematology in support of his position. In reviewing a grant of summary judgment where the material facts are not in dispute, we review “de novo whether the trial court correctly applied the substantive law to those facts.” Ariz. Joint Venture v. Ariz. Dep't of Revenue, 205 Ariz. 50, ¶ 14, 66 P.3d 771, 774 (App.2002).

¶ 5 When interpreting a statute, our goal is “ ‘to fulfill the intent of the legislature that wrote it.’ ” Awsienko v. Cohen, 227 Ariz. 256, ¶ 11, 257 P.3d 175, 177 (App.2011), quoting Bilke v. State, 206 Ariz. 462, ¶ 11, 80 P.3d 269, 271 (2003). We first look to the statute's language and if its meaning is clear, we rely on the plain language rather than utilizing other ways of interpreting the statute. Id. We only modify the language in order to “ ‘obviate any repugnancy to or inconsistence with’ ” legislative intent. Id., quoting Bd. of Supervisors v. Pratt, 47 Ariz. 536, 542, 57 P.2d 1220, 1223 (1936). If a statute is ambiguous, such as when terms are undefined, “we determine legislative intent by looking first to the text and context of the statute.” Kent K. v. Bobby M., 210 Ariz. 279, ¶¶ 14–15, 110 P.3d 1013, 1017 (2005). And we consider related statutes together, “striv[ing] to achieve consistency among them.” Swift Transp. Co. v. Maricopa County, 225 Ariz. 262, ¶ 11, 236 P.3d 1209, 1212 (App.2010).

¶ 6 Section 12–2604(A)(1) provides:

A. In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and the person meets the following criteria:

1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes 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 or on whose behalf the testimony is offered. If the party against whom or on whose behalf 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.

¶ 7 Because the legislature did not define “specialty” in § 12–2604, the statute is ambiguous and we look to its context. See Kent K., 210 Ariz. 279, ¶¶ 14–15, 110 P.3d at 1017. Several statutes regarding medical specialties refer to an “American medical specialty board.” See, e.g., A.R.S. §§ 20–841.04(F), 20–1057.01(E), 20–2532(A)(2), 20–2538(B); see also Swift Transp. Co., 225 Ariz. 262, ¶ 11, 236 P.3d at 1212 (related statutes construed together). The American Board of Medical Specialties (ABMS) is an organization consisting of twenty-four member boards and works in conjunction with the American Medical Association to recognize specialty boards. ABMS, About ABMS Member Boards, http:// www. abms. org/ About_ ABMS/ member_ boards. aspx (last visited Feb. 14, 2012). ABMS lists pediatrics as one specialty and internal medicine as another, but does not include hematology as a specialty. Id. It lists pediatric hematology/oncology as a subspecialty of pediatrics and hematology as a subspecialty of internal medicine. ABMS, ABMS Member Boards, Pediatrics, http:// www. certification matt ers.org/ abms-member- boards/ pediatrics.aspx (last visited Feb. 14, 2012); ABMS, ABMS Member Boards, Internal Medicine, http:// www. certification mart ers.org/ abms-member- boards/ internal- medicine.aspx (last visited Feb. 14, 2012).

¶ 8 Additionally, the American Society of Hematology's website, cited by Baker, provides as follows: “An American hematologist has trained in a subspecialty program approved by the American Board of Internal Medicine or the American Board of Pediatrics, or has acquired a comparable education in the field by alternate means, and is Board Certified (or eligible) in the subspecialty of hematology.” ¹ Am. Soc'y of Hematology, Defining the American Hematologist, http:// www. hematology. org/ About- ASH/ 1778. aspx (last visited Feb. 14, 2012). Thus, taking related statutes into account, as well as the arguments of the parties, we conclude the legislature intended “specialty” to be one of the twenty-four boards established by ABMS.

¶ 9 In their briefs, both parties suggest the statute requires the testifying expert to be of the same subspecialty as the subject doctor. Baker notes that one of the sponsors of § 12–2604 testified before the House of Representatives Committee on Health that the statute would mean “a physician cannot testify against another physician unless they have comparable training and certification.” H.R. Health Comm. Minutes, 47th Leg., 1st Reg. Sess. (Ariz. Mar. 23, 2005). Although the statement of a bill's sponsor may be entitled to some weight, Hernandez–Gomez v. Leonardo, 185 Ariz. 509, 513, 917 P.2d 238, 242 (1996), this statement gives the court little guidance in determining the legislature's choice between requiring the same specialty or subspecialty. As this case demonstrates, that choice involves important policy trade-offs between the depth and breadth of the expert pool and the similarity of the training. It is the legislature's role to make policy decisions and “[w]e will not question the wisdom, necessity, or soundness of policy of legislative enactments.” In re Estate of Winn, 225 Ariz. 275, ¶ 12, 237 P.3d 628, 630 (App.2010). We will not make the policy decisions associated with limiting the testifying experts to the same subspecialty when the legislature has chosen to say specialty.

¶ 10 Additionally, the legislature could have chosen to base a testifying expert's qualifications on the relevant injury or procedure, but instead decided to base it on the training and certification of the specialist. ² The legislature chose the term specialty, which has an objective and verifiable meaning through reference to the other statutes. Had the legislature chosen a word or phrase without such a meaning, this court would have more leeway in interpreting the statute. But we presume the legislature has spoken as clearly as possible. Samaritan Health Sys. v. Superior Court, 194 Ariz. 284, ¶ 18, 981 P.2d 584, 589 (App.1998). Because it chose the word specialty rather than a less specific phrase, we must conclude it meant specialty.

¶ 11 Section 12–2604(A)(1) requires that the testifying expert here be “a specialist who is board certified in [Wittman's] specialty.” Based on the record, Wittman is certified by the American...