Court of Appeals of Arizona, First Division, Department D
Appeal from the Superior Court in Maricopa County Cause No. CV2012-005320 The Honorable J. Richard Gama, Judge.
The Cavanagh Law Firm Phoenix By Steven D. Smith Brett T. Donaldson Attorneys for Petitioner.
Michael James Wicks Phoenix Attorney for David Hobbs, D.C.
Sternberg & Singer, LTD Phoenix By Howard A. Singer and Law Office of Paul M. Briggs, PLLC Phoenix By Paul M. Briggs Attorneys for Heydy Santizo Hernandez.
JON W. THOMPSON, Judge.
¶1 This special action arises from a personal injury lawsuit in which a treating physician refused to testify unless he was compensated as an expert witness. The superior court ordered Santiago Sanchez (Sanchez), the defendant below, to compensate the treating physician as an expert witness. The narrow issue we address is whether a treating physician's testimony concerning diagnosis, treatment, and prognosis is expert testimony because it draws upon his or her skill, training, and experience as a doctor. For the following reasons, we accept jurisdiction of the special action petition and grant relief.
FACTS AND PROCEDURAL HISTORY
¶2 Heydy Santizo Hernandez (Hernandez) was involved in a motor vehicle accident with Sanchez in Scottsdale, Arizona. Hernandez sued Sanchez for personal injury damages resulting from the accident, and alleged that she required chiropractic treatment from Injury Chiropractic. As part of her prima facie case, Hernandez would have to prove that she was injured, and that her treatment and the charges were reasonable and necessary. See Rev. Ariz. Jury Instr. (RAJI) (Civil) Fault 3 & Personal Injury Damages 1 at 34, 108 (4th ed. 2005) . In his disclosure statement, Hernandez listed Injury Chiropractic as a witness to "testify consistently with their medical records regarding the injuries sustained by Plaintiff and related medical treatment." Hernandez also listed Injury Chiropractic as an expert witness, stating the "doctors will testify as Plaintiff's treating physicians, to the injuries and medical treatment and anticipated medical treatment." Treatment notes made by Dr. David Hobbs of Injury Chiropractic were attached to the disclosure statement.
¶3 During discovery, Sanchez subpoenaed Dr. Hobbs to take his deposition. Dr. Hobbs filed a motion to quash the subpoena, or in the alternative, sought entry of a protective order limiting the scope of inquiry by defense counsel and requiring Sanchez to pay expert witness fees in advance. Dr. Hobbs sought to limit the issues to: (1) the care and treatment of Hernandez; (2) the documentation and record-keeping related to the care provided; (3) the reasonableness of the medical services provided; and (4) the philosophy and modalities of the type of chiropractic medicine engaged in by Dr. Hobbs regarding Hernandez's medical condition. On October 17, 2012, Judge Gama granted the motion and agreed that Dr. Hobbs was an expert for purposes of Arizona Rule of Civil Procedure 26(b)(4)(a) & (c). Two days after Dr. Hobbs's deposition was taken, a memorandum regarding the fees to be paid to Dr. Hobbs was filed on his behalf. On January 15, 2013, the arbitrator issued a ruling determining that Dr. Hobbs was entitled to payment at the rate of $300 per hour. Sanchez then sought special action relief in this Court on March 15.
SPECIAL ACTION JURISDICTION
¶4 Special action jurisdiction is appropriate when a petitioner does not have an "equally plain, speedy, or adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a); State ex rel. Romley v. Superior Court, 172 Ariz. 109, 111, 834 P.2d 832, 834 (App. 1992). Where the issue is a purely legal question of first impression, is of statewide importance, and will arise again, special action jurisdiction may be warranted. Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App. 1992).
¶5 The petition presents a purely legal question of statewide importance affecting numerous cases. The lack of guidance in this area has resulted in conflicting superior court rulings. Consequently, we exercise our discretion and accept special action jurisdiction.
¶6 Sanchez asserts that he should not have been required to pay expert witness compensation of Dr. Hobbs because of his specialized chiropractic knowledge, even though he would only be testifying about his examination, treatment, bills, and chiropractic opinions formed during treatment of Hernandez. It is undisputed that Dr. Hobbs was not retained for purposes of this litigation, and that his expected testimony is based on his care and services during the treatment of Hernandez, not opinions formed after Hernandez's discharge from care in anticipation of litigation. Thus, the narrow issue in this special action is whether a treating physician's testimony concerning the patient's diagnosis, treatment, ...