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Romero v. Hasan

Court of Appeals of Arizona, First Division

January 5, 2017

DAVID ROMERO, Plaintiff/Appellant,
v.
KHALID S. HASAN, et al., Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV2014-095832 The Honorable Mark F. Aceto, Judge (Retired)

         AFFIRMED

          David Romero, Queen Creek Plaintiff/Appellant Pro Per

          Holden & Armer PC, Tempe By Scott A. Holden, Carolyn Armer Holden Counsel for Defendants/Appellees

          Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Charles W. Gurtler, Jr. joined. [1]

          OPINION

          THOMPSON, Judge:

         ¶1 David Romero appeals the dismissal of his medical malpractice claim against Khalid S. Hasan, M.D., for failure to file a preliminary expert affidavit as required under Arizona Revised Statutes (A.R.S.) § 12-2603 (2016).[2] For the following reasons, we affirm.

         FACTUAL AND PROCEDURAL HISTORY

         ¶2 In October 2014, Romero filed a complaint alleging Hasan negligently prescribed an incorrect dosage of synthroid in October 2012.

         ¶3 In December 2014, Romero certified pursuant to A.R.S. § 12- 2603 that expert testimony was not necessary to prove the proper standard of care or breach. Hasan disputed that certification and moved to dismiss Romero's claim for failure to comply with A.R.S. § 12-2603. Romero responded that his claim did not require expert testimony, but requested additional time to comply with the statute's requirement to provide a preliminary expert affidavit if the superior court concluded to the contrary. Finding Romero's claim required expert testimony, the superior court ordered him to provide a preliminary expert opinion affidavit within nine weeks.

         ¶4 Three days before the court-ordered deadline, Romero requested the superior court set a hearing so his treating physicians could "establish the requirements under A.R.S. § 12-2603." Romero admitted he was unable to obtain the affidavits required by A.R.S. § 12-2603. The superior court denied Romero's request for a hearing and dismissed Romero's claim without prejudice.

         ¶5 Romero points out that Arizona has a savings statute - A.R.S. § 12-504(A)-that would have permitted him to refile his action; however, no issue regarding A.R.S. § 12-504(A) is presently before us. We have jurisdiction. See A.R.S. §§ 12-2101(A)(3) (2016) (appellate jurisdiction), -120.21(A)(4) (2016) (special actions jurisdiction).

         DISCUSSION

         ¶6 On appeal, Romero argues the superior court erred in rejecting his request for his treating physicians to testify at a hearing in lieu of him serving a preliminary affidavit as required by A.R.S § 12-2603.[3] We review de novo the superior court's order granting a motion to dismiss. ...


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