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Mikel Lo, M.D. and Mikel W. Lo, M.D., Inc v. Hon. Kenneth Lee

September 20, 2012

MIKEL LO, M.D. AND MIKEL W. LO, M.D., INC., PETITIONERS,
v.
HON. KENNETH LEE, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA, RESPONDENT, AND VALERIE A. AND DARRELL K. MILLS, WIFE AND HUSBAND, REAL PARTIES IN INTEREST.



Pima County Cause No. C20105329

The opinion of the court was delivered by: H O W A R D, Chief Judge.

IN THE COURT OF APPEALS

OPINION

SPECIAL ACTION PROCEEDING

JURISDICTION ACCEPTED; RELIEF DENIED

¶1 Mikel Lo petitions this court for special action review of the respondent judge's order denying his motion for summary judgment in plaintiff-respondent Valerie Mills's medical malpractice action against him.*fn1 He contends the respondent erred by concluding Mills's designated standard-of-care expert was not barred from testifying by A.R.S. § 12-2604(A)(1). Because Lo has no equally plain and speedy remedy by appeal, and because this case presents an issue of first impression and of statewide importance, we accept special action jurisdiction. Ariz. R. P. Spec. Actions 1(a); Lear v. Fields, 226 Ariz. 226, ¶ 6, 245 P.3d 911, 914 (App. 2011). For the reasons that follow, however, we deny relief.

¶2 In July 2010, Mills sued Lo, a board-certified ophthalmologist with a claimed subspecialty in oculoplastic surgery, asserting he had fallen below the applicable standard of care in performing a "laser facial skin treatment" on Mills, and she had suffered numerous injuries and complications as a result. Lo filed a motion for summary judgment and a motion to disqualify Mills's standard-of-care expert, Dr. James Chao, a board-certified plastic surgeon. Lo argued that, pursuant to § 12-2604(A)(1), Chao was not qualified to testify against Lo because he was not a board-certified ophthalmologist and Mills, therefore, could not meet her burden of demonstrating Lo had violated the standard of care.

¶3 The respondent judge denied Lo's motion, reasoning that, although Lo was a board-certified ophthalmologist, he was also a specialist in cosmetic plastic surgery, and that the procedure he had performed on Mills fell within the latter specialty. Thus, the respondent concluded Chao, as a board-certified plastic surgeon, was qualified to offer testimony pursuant to § 12-2604(A)(1).

¶4 Lo claims the respondent judge erred by concluding Chao was qualified under § 12-2604 to testify concerning the appropriate standard of care. "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." Awsienko v. Cohen, 227 Ariz. 256, ¶ 8, 257 P.3d 175, 177 (App. 2011), citing A.R.S. § 12-563. Section 12-2604(A)(1) requires an expert testifying "on the appropriate standard of practice or care" to have certain qualifications:

If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, [the expert] 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.

¶5 In Baker v. University Physicians Healthcare, we determined the legislature intended the term "specialty," as used in § 12-2604(A)(1), to refer to the twenty-four specialty boards established by the American Board of Medical Specialties (ABMS),*fn2 and did not include subspecialties. 228 Ariz. 587, ¶¶ 7-8, 13, 269 P.3d 1211, 1214-15 (App. 2012). We also concluded the legislature chose "to base a testifying expert's qualifications . . . on the training and certification of the specialist." Id. ¶ 10. By doing so and using the ABMS boards, the legislature gave litigants an objective and verifiable standard to determine before filing an action what qualifications an expert must have in order to testify. Thus, we concluded an expert who was board certified in the ABMS specialty of internal medicine, with a subspecialty in hematology, did not qualify under § 12-2604(A)(1) to testify against the defendant, who was board certified in the ABMS specialty of pediatrics with a subspecialty in pediatric hematology. Id. ¶¶ 11-12. And we noted that we did not "decide if or in what way § 12-2604 applies when a defendant specialist is acting outside of his or her specialty." Id. n.2.

¶6 Lo is a board-certified ophthalmologist. The ABMS describes that area of practice as follows: Ophthalmology is a specialty focused on the medical and surgical care of the eyes. Ophthalmologists are the only physicians medically trained to manage the complete range of the eye and vision care. They can prescribe glasses and contact lenses, dispense medications, diagnose and treat eye conditions and diseases and perform surgeries. ABMS Member Boards, Ophthalmology, http://www.certificationmatters.org/abms-member-boards/ophthalmology.aspx (last visited Jul. 30, 2012). This definition does not specifically include plastic surgery. Lo acknowledges plastic surgeons perform facial laser resurfacing "such as [he] performed on [Mills]," but contends that, because the procedure also is performed by ophthalmologists with Lo's particular claimed subspecialty-oculoplastic surgery, Chao is not qualified as an expert because he is not a board-certified ophthalmologist. Given that Lo is a board-certified ophthalmologist and the record supports his assertion that ophthalmologists perform this procedure, a board-certified ophthalmologist, otherwise qualified under Rule 702, Ariz. R. Evid., would qualify to testify pursuant to § 12-2604(A)(1).

¶7 But the respondent judge found that Lo also was a specialist, or at least claimed to be a specialist, in "cosmetic plastic surgery." Plastic surgery is a recognized ABMS board and "deals with the repair, reconstruction or replacement of physical defects of form or function involving the skin, musculoskeletal system, craniomaxillofacial structures, hand, extremities, breast and trunk and external genitalia or cosmetic enhancement of these areas of the body." ABMS Member Boards, Plastic Surgery, http://www.certificationmatters.org/abms-member-boards/plastic-surgery.aspx (last visited Jul. 30, 2012). "Cosmetic surgery is an essential component of plastic surgery," id., and there is no ABMS member board for cosmetic surgery, see ABMS Member Boards, http://www.certificationmatters.org/abms-member-boards.aspx (last visited Sept. 6, 2012).

ΒΆ8 Lo argues, however, that there is a distinction between cosmetic surgery and plastic surgery. At oral argument before this court he asserted he has not claimed a specialty in plastic surgery. He maintains rather that he was acting as an ophthalmologist performing cosmetic surgery. We disagree. First, the ABMS description of the practice of ophthalmology does not include cosmetic surgery, but the ABMS description of plastic surgery does. Additionally, even assuming a distinction in these circumstances is meaningful, Lo's argument is flatly contradicted by the record. In making his ruling, the respondent judge reviewed the information on Lo's internet website which claims Lo has "master[ed] the art of cosmetic surgery," including "general cosmetic surgery" and states he is "[b]oard eligible" for the "American Board of Cosmetic Surgery." The website additionally ...


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