THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.34

MEMORANDUM DECISION

TIMMER, Judge.

¶ 1 Cynthia A. McShane-Powers appeals the superior court's order dismissing her medical malpractice complaint against Dr. Bradley Folkestad because she failed to provide a sufficient preliminary expert opinion affidavit as ordered by the court and required by Arizona Revised Statutes ("A.R.S.") section 12-2603 (Supp. 2010). She argues the court erred because no expert affidavit was required by § 12-2603 and, in any event, she supplied a compliant affidavit. For the reasons that follow, we agree with the court that McShane-Powers was required to serve a preliminary affidavit, and the affidavit she provided does not comply with the statute. Nevertheless, because the trial court failed to give McShane-Powers reasonable time to cure the deficiencies in the affidavit before dismissing the complaint as required by A.R.S. § 12-2603(F), we reverse and remand with instructions to afford her this opportunity.

BACKGROUND1

¶ 2 In April 1998, Dr. Folkestad, a board-certified physician in obstetrics and gynecology ("OB/GYN"), performed abdominal surgery on Powers for a hysterectomy and prolapsed bladder at Arrowhead Hospital. According to McShane-Powers, a surgical sponge or towel ("surgical material") was left in her body. After the surgery, Powers experienced pain during sexual intercourse. In September 1998, Dr. Folkestad performed another surgery, but the pain continued. In May 1999, a second OB/GYN physician, Dr. Gordon Davis, performed a third surgery on Powers, which resolved her pain issues.

¶ 3 Approximately seven years later, in August 2005, skin lesions appeared on McShane-Powers, and Dr. Davis diagnosed warts, which he removed. Thereafter, she experienced joint pain and migraine headaches. Eventually, in October 2007, her primary care physician, Dr. Vogt, took x-rays of her sinuses, which revealed "some type of gauze/textile." According to McShane-Powers, subsequent x-rays taken of different parts of her body, including her foot, similarly show the presence of gauze/textile. She contends the pieces of gauze/textile were remnants of the surgical material left behind during her first 1998 surgery and had traveled from her abdomen to different parts of her body via "trans mural [sic] migration."

¶ 4 In October 2009, Powers initiated this lawsuit against Dr. Folkestad and Arrowhead Hospital,2 alleging Dr. Folkestad is at fault for leaving the surgical material in her abdomen and indicating her intent to rely on the res ipsa loquitur ("res ipsa") doctrine to prove Dr. Folkestad's negligence. Dr. Folkestad moved to dismiss the complaint without prejudice, arguing Powers failed to include the required certification regarding the need for a preliminary expert affidavit ("preliminary affidavit" or "affidavit"), as mandated by § 12-2603(A). The superior court denied the motion, ruling McShane-Powers' allegation that Dr. Folkestad violated the standard of care by failing to ensure removal of the surgical material was a matter of common knowledge, and no expert opinion would be needed. Powers then moved for summary judgment and attached x-rays purporting to show the surgical material in her body. The court denied her motion, noting the court did not have the expertise to interpret the x-rays and significant issues of fact remained unresolved.

¶ 5 Dr. Folkestad subsequently moved for an order pursuant to § 12-2603(D) requiring Powers to serve a preliminary affidavit, arguing common knowledge alone was insufficient to prove his alleged negligence. Dr. Folkestad avowed that the Arrowhead Hospital nursing staff was responsible for ensuring removal of surgical material and, regardless, McShane-Powers' subsequent surgery could have resulted in the surgical material purportedly left in her body. Consequently, Dr. Folkestad argued that because McShane-Powers had not sued all individuals who participated in the various surgeries, she could not rely on the res ipsa doctrine to avoid compliance with § 12-2603(A).

¶ 6 After full briefing, the court granted the motion. The court reasoned that if the allegations in the complaint comprised the entirety of the record, it would not require an affidavit. But because the record revealed the existence of surgery by another doctor, and because the significance of provided x-rays, microscopic skin sample reports, and the theory of transmural migration are not matters of common knowledge, the court concluded that a preliminary affidavit is required. The court therefore stayed the action until June 1, 2010, when the court would dismiss it if McShane-Powers failed to file a preliminary affidavit.

¶ 7 In May 2010, Powers filed a second motion for summary judgment and attached an affidavit from Jeffrey Davidson, a microbiologist. Davidson opined that gauze had been left in McShane-Powers' body during her 1998 surgery, it was the surgeon's responsibility to ensure such material is removed, and the material had migrated through her body and intermingled with her tissues.

¶ 8 In June, the court denied the motion, stating without elaboration McShane-Powers had failed to comply with § 12-2603. Two months later, upon Dr. Folkestad's request in an objection to a motion to set the case for trial, the court dismissed the complaint without prejudice due to McShane-Powers' failure to submit the required affidavit. This appeal followed.3 Because we are presented with a mixed question of fact and law, we review the superior court's dismissal de novo.4 Wilmot v. Wilmot, 203 Ariz. 565, 568-69, ¶ 10, 58 P.3d 509, 510-11 (2002) (noting appellate courts are not bound to superior court's conclusions and findings that combine both fact and law).

DISCUSSION

I. Requirement for preliminary affidavit

¶ 9 Powers argues the superior court erred by requiring a preliminary affidavit pursuant to § 12-2603 because the basis for the allegations against Dr. Folkestad are demonstrated by the res ipsa doctrine. The res ipsa doctrine is a rule of circumstantial evidence that permits the fact-finder to infer negligence when (1) the injury is the type that ordinarily does not occur in the absence of negligence, (2) the injury is caused by an agency or instrumentality under the exclusive control of the defendant, and (3) the claimant is not in a position to show the particular circumstances that caused the offending agency or instrumentality to result in injury. Sanchez v. Tucson Orthopaedic Inst., P.C., 220 Ariz. 37, 39, ¶ 8, 202 P.3d 502, 504 (App. 2008); Schneider v. City of Phoenix, 9 Ariz.App. 356, 358, 452 P.2d 521, 523 (1969). Dr. Folkestad contends McShane-Powers is not entitled to invoke res ipsa because the record does not establish he had exclusive control over her surgeries. Additionally, he asserts that because other issues relating to the standard of care and liability are not matters of common knowledge, McShane-Powers was required to submit a preliminary affidavit. To resolve this dispute, we examine the interplay between common law principles applicable to medical malpractice claims, § 12-2603, and the res ipsa doctrine and then apply the principles we glean to the record.

¶ 10 To prevail in her lawsuit, McShane-Powers is required to prove Dr. Folkestad owed her a duty, he breached that duty, and she sustained damages as a result. Seisinger v. Siebel, 220 Ariz. 85, 94, ¶ 32, 203 P.3d 483, 492 (2009). Dr. Folkestad breached his duty if he failed to exercise the "same care in the performing of his duties as was ordinarily possessed and exercised by other physicians of the same class in the community in which he practiced." Id. at ¶ 33 (citation and internal quotation marks omitted). This level of care is commonly referred to as the "standard of care." Id. at ¶ 32. McShane-Powers is required to establish the standard of care by expert medical opinion, unless it is a matter of common knowledge that her injuries would not have occurred if Dr. Folkestad had exercised due care. Id. at ¶ 33; see also Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 321, ¶ 13, 183 P.3d 1285, 1289 (App. 2008) (holding expert testimony is necessary to establish departure from standard of care "except when negligence is so clearly apparent that a layman would recognize it").

¶ 11 Section 12-2603(A) requires a plaintiff in a medical malpractice action to certify at the time of the complaint whether expert opinion testimony is necessary to prove the standard of care or liability. If the plaintiff certifies the need for such testimony, a preliminary affidavit setting forth this testimony must be provided along with the disclosure statement mandated by Arizona Rule of Civil Procedure 26.1. A.R.S. § 12-2603(B). If the plaintiff certifies that no expert testimony is needed, the defendant health care professional may move the court to order the plaintiff to obtain and serve a preliminary affidavit. A.R.S. § 12-2603(D). If the court grants the motion, the plaintiff must obtain and serve an affidavit by the date and on the terms specified by the court. A.R.S. § 12-2603(E). The court must dismiss the complaint without prejudice if the plaintiff fails to comply with the court's order. A.R.S. § 12-2603(F).

¶ 12 Section 12-2603 does not impose a heightened requirement for expert testimony that did not exist at common law. Old Pueblo Anesthesia, 218 Ariz. at 321-22, ¶ 14, 183 P.3d at 1289-90. Thus, the determinative issue before us is whether Dr. Folkestad's alleged failure to ensure removal of the surgical material is so obviously below the standard of care and clearly caused injury to McShane-Powers that a layperson could identify it, making expert testimony unnecessary. See id. at ¶ 13.

¶ 13 McShane-Powers asserts Dr. Folkestad's negligence is obvious because "[d]octors are supposed to see that [the] sponge count is correct" before completing the surgery. We disagree that McShane-Powers' recitation of this aspect of the standard of care is so obvious that a layperson could perceive it without expert testimony. In his motion to compel acquisition and service of a preliminary affidavit, Dr. Folkestad avowed that nurses employed by Arrowhead Hospital assisted him in Powers' operation, and "[o]ne of the functions and responsibilities of nursing in such an operation is to perform preoperative and postoperative sponge counts in order to verify that no sponges, pads or other materials have been unintentionally left behind in the patient's body." According to Dr. Folkestad, a surgeon is so occupied with the details of surgery that he does not oversee the sponge count and must rely on nurses for that task. Because a layperson would not know whether the standard of care applicable to Dr. Folkestad included ensuring an accurate sponge count, expert witness testimony is necessary, and a preliminary affidavit to that effect is required. Similarly, as it is not a matter of common knowledge that surgical material left in a patient would cause the type of injuries McShane-Powers is experiencing years after the complained-about surgery, a preliminary affidavit addressing that point is also necessary.5 A.R.S. § 12-2603(B)(4) (providing that a preliminary affidavit must include a recitation of manner in which health care professional's error caused damages to claimant); Ryan v. San Francisco Peaks Trucking Co., 228 Ariz. 42, 48-49, ¶ 23, 262 P.3d 863, 869-70 (App. 2011) ("[U]nless a causal relationship is readily apparent to the trier of fact, expert medical testimony is normally required to establish proximate cause.").

¶ 14 McShane-Powers' reliance on the res ipsa doctrine to avoid the affidavit requirement of § 12-2603 is misplaced. Section 12-2603 does not exempt res ipsa claims from the preliminary affidavit requirement. Our holding in Old Pueblo Anesthesia is instructive:

218 Ariz. at 321, ¶ 12, 183 P.3d at 1289. As previously explained, see supra ¶ 13, it is not obvious that a surgeon's standard of care includes ensuring the absence of surgical material in the patient's body before completing surgery. Thus, even assuming McShane-Powers eventually may rely on the res ipsa doctrine to prove that surgical material left in a patient falls below the standard of care,6 she is not relieved from securing expert testimony to establish as a prerequisite to applying that doctrine that Dr. Folkestad had exclusive control over the sponge count and was therefore responsible for the surgical material left behind. Tucson Orthopaedic Inst., 220 Ariz. at 39, ¶ 8, 202 P.3d at 504; see also Old Pueblo Anesthesia, 218 Ariz. at 321, ¶ 11, 183 P.3d at 1289 ("[T]he doctrine of res ipsa loquitur does not relieve claimants of the obvious necessity of identifying which defendant or defendants controlled `the agency or instrumentality' causing their injuries.").

¶ 15 In sum, the superior court did not err by requiring McShane-Powers to obtain and serve a preliminary affidavit.

II. Sufficiency of Davidson affidavit

¶ 16 McShane-Powers argues the superior court erred by dismissing her complaint on the basis that Davidson's affidavit did not comply with § 12-2603. The court did not specify how Davidson's affidavit failed to comply with § 12-2603. Regardless, we agree the affidavit is non-compliant because it fails to offer a sufficient opinion regarding Dr. Folkestad's breach of the standard of care. As McShane-Powers points out, Davidson opines that a surgeon is responsible for ensuring the removal of all surgical material from the patient — required subject matter for the preliminary affidavit. See supra ¶ 13. But A.R.S. § 12-2604(A) (Supp. 2010) explicitly requires the affiant to be a board-certified OB/GYN physician, among other qualifications, to render an opinion on the standard of care applicable to board-certified OB/GYN physicians like Dr. Folkestad. See also Old Pueblo Anesthesia, 218 Ariz. at 322, ¶ 15, 183 P.3d at 1290 (noting an expert in one field may not testify as an expert on the standard of care for a specialist in another field). Davidson, a microbiologist, cannot offer expert testimony regarding the standard of care applicable to Dr. Folkestad. For this reason alone,7 the superior court correctly concluded that McShane-Powers failed to provide a sufficient affidavit pursuant to § 12-2603.

¶ 17 We next address the propriety of dismissing the complaint as a result of McShane-Powers' failure to comply with the court's order to obtain and serve a sufficient affidavit. Section 12-2603(F) provides that when a claimant provides a preliminary affidavit, "[u]pon any allegation of insufficiency of the affidavit, the court shall allow any party a reasonable time to cure any affidavit, if necessary." In denying McShane-Powers' motion for summary judgment, the court stated she had failed to comply with § 12-2603. The court neither specified the insufficiency nor provided McShane-Powers a reasonable time to cure the deficiency. Consequently, the court erred by dismissing the complaint without affording McShane-Powers an opportunity to cure the deficiency in the affidavit. We therefore reverse and remand with instructions to permit McShane-Powers a reasonable time to cure the deficiency in the provided affidavit by obtaining, at a minimum, an affidavit from a board-certified OB/GYN who otherwise meets the requirements of § 12-2604(A) to opine on the standard of care for an OB/GYN and whether Dr. Folkestad's alleged actions constituted a breach of that standard.

CONCLUSION

¶ 18 For the foregoing reasons, we reverse and remand with instructions as specified in this decision.

Maurice Portley, Presiding Judge, concurring. GOULD, Judge, dissenting.

¶ 19 I respectfully dissent. I believe the trial court erred when it dismissed Power's case on the grounds she was required to submit an expert affidavit regarding the standard of care pursuant to A.R.S. § 12-2603(A). Powers' allegation — that Dr. Folkestad was negligent because he left a surgical sponge or gauze in her body during surgery — is the type of allegation that does not require expert medical testimony.

¶ 20 Generally, expert testimony is necessary to prove that a physician is negligent. Riedisser v. Nelson, 111 Ariz. 542, 544, 534 P.2d 1052, 1054 (1975). However, it is well-established in Arizona that no expert testimony is necessary to prove negligence when a physician leaves a foreign object, such as a sponge, in a patient's body. Revels v. Pohle, 101 Ariz. 208, 418 P.2d 364 (1966) (expert testimony not required where physician left steel sutures in plaintiff's abdomen); Tiller v. Von Pohle, 72 Ariz. 11, 230 P.2d 213 (1951) (expert testimony not necessary where physician left a cloth sack in plaintiff's body). As the court so aptly stated in Landgraff v. Wagner, 26 Ariz. 49, 57, 546 P.2d 26, 34 (App. 1976):

¶ 21 The majority contends that expert testimony is necessary "[B]ecause a layperson would not know whether the standard of care applicable to Dr. Folkestad included ensuring an accurate sponge count." Dr. Folkestad is certainly entitled to present expert testimony in his defense that it was the nurses, and not him, who were responsible for counting the sponges. However, if such expert testimony is required under A.R.S. §12-2603(A), then it is hard to conceive of any case where a sponge or gauze left in a patient's body would be exempt from the expert testimony requirement. A plaintiff in such cases would always be required to produce an expert to prove that the physician was responsible for the sponge count. See Burke v. Wash. Hosp. Ctr., 475 F.2d 364, 365 (D.C. Cir. 1973)(holding that where plaintiff alleged surgeon was negligent for leaving surgical sponge in her abdomen, the surgeon's claim that expert testimony was necessary to establish responsibility for the sponge count lacked merit, because it was "that rare sort of case in which the type of harm itself raises so strong an inference of negligence, and the physician's duty to prevent the harm is so clear, that expert testimony is not required to establish the prevailing standard of care").

¶ 22 The issue before this court is not medical causation. The trial court did not dismiss Powers' case because she failed to provide an expert affidavit regarding causation; the dismissal was based on her failure to provide an expert affidavit regarding the standard of care. This court should not be sidetracked by whether or not Powers can prove that the gauze allegedly "migrated" to different parts of her body, whether the nurses were responsible for counting the surgical sponges/gauze, or whether the gauze was left in her body during a surgery performed by a different physician. All of these questions go to the issue of causation; they do not address whether Dr. Folkestad should have left the gauze in Powers' body in the first place.

¶ 23 Likewise, Dr. Folkestad's argument that Powers is unable to prove "exclusive control" under her theory of res ipsa loquitur should not be the focus of this court. Powers' inability to prove exclusive control may give rise to a number of defenses by Dr. Folkestad. Sanchez v. Tucson Orthopaedic Inst., P.C., 220 Ariz. 37, 39, ¶ 8, 202 P.3d 502, 504 (2008)(listing the elements of the res ipsa doctrine). However, the relevant consideration for us is whether Powers needs an expert to prove the first element of res ipsa: "the injury is of a kind that usually does not occur without negligence." Id. at 39, ¶ 8, 202 P.3d at 504.

¶ 24 Powers certified that she did not need an expert regarding the standard of care pursuant to A.R.S. §12-2603(A). She based this certification on her allegation that Dr. Folkestad left a sponge/gauze in her body when he performed surgery on her. To support her position, Powers presented x-rays and stated that Dr. Vogt had told her that there was "some type of gauze/textile" in her body. She also presented the affidavit of a microbiologist who tested the material, and opined that it was some type of surgical gauze. Whether or not this presents a compelling case of medical negligence is not before us. This case was dismissed because Powers failed to comply with A.R.S. §12-2603(A). I believe Powers satisfied the requirements of the statute by presenting a detailed, good faith basis to support her certification she did not need a standard of care expert. I would reverse the trial court's dismissal on this issue and remand without instruction to submit an expert affidavit.