Filed: Jan. 23, 2018
Latest Update: Jan. 23, 2018
Summary: ORDER DAVID K. DUNCAN , Magistrate Judge . In support of their state law claim for wrongful death against Defendant Wilkinson and pursuant to Ariz. Rev. Stat. 12-2603, Plaintiffs filed a preliminary expert affidavit from Todd Wilcox, M.D. (Doc. 34-1 at 27-34) Defendants challenge the affidavit's sufficiency and argue that the affidavit does not meet the statutory requirement of including "[t]he manner in which the health care professional's acts, errors or omissions caused or contributed
Summary: ORDER DAVID K. DUNCAN , Magistrate Judge . In support of their state law claim for wrongful death against Defendant Wilkinson and pursuant to Ariz. Rev. Stat. 12-2603, Plaintiffs filed a preliminary expert affidavit from Todd Wilcox, M.D. (Doc. 34-1 at 27-34) Defendants challenge the affidavit's sufficiency and argue that the affidavit does not meet the statutory requirement of including "[t]he manner in which the health care professional's acts, errors or omissions caused or contributed t..
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ORDER
DAVID K. DUNCAN, Magistrate Judge.
In support of their state law claim for wrongful death against Defendant Wilkinson and pursuant to Ariz. Rev. Stat. § 12-2603, Plaintiffs filed a preliminary expert affidavit from Todd Wilcox, M.D. (Doc. 34-1 at 27-34) Defendants challenge the affidavit's sufficiency and argue that the affidavit does not meet the statutory requirement of including "[t]he 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." Ariz. Rev. Stat. §12-2603(B)(4). Defendants ask to stay discovery until Plaintiffs produce an amended affidavit. (Docs. 39, 41)
Plaintiffs respond that Dr. Wilcox's affidavit is sufficient because it includes his opinion that Defendant Wilkinson fell below enumerated standards of care and this caused or contributed to Plaintiff's death. (Doc. 35 at 2-5) Plaintiffs further note that the preliminary affidavit requirement is not the same as their ultimate burden of proof at trial and was intended only to screen out frivolous claims and not require a plaintiff to establish their final causation claim at the early stages of litigation. (Doc. 35)
The Court agrees. Plaintiffs have provided a preliminary affidavit that meets the requirements of Ariz. Rev. Stat. § 12-2603(B)(4) because, among other things, the affiant alleges that Defendant Wilkinson's actions fell below the standard of care and this caused or contributed to Plaintiff's death.1 The Court concludes that the affidavit satisfies the statute's plain language and its purpose, namely "to curb frivolous medical malpractice suits." Ryan v. San Francisco Peaks Trucking Co., Inc. 262 P.3d 863, 871 (Ariz. App. 2011).
The parties have also filed a joint motion for a protective order. (Doc. 36) The Court will grant the motion.
IT IS ORDERED denying Defendants' Amended Motion to Compel and Stay of Discovery (Doc. 39)
IT IS FURTHER ORDERED granting the parties' Joint Motion for Protective Order and approving the proposed form of order filed at Doc. 36-1. (Doc. 36)
