PATRICIA L. WILLIAMSON, Plaintiff/Appellant,
KEVIN J. O'BRIEN, DPM, Defendant/Appellee.
from the Superior Court in Mohave County No. L8015CV201307206
The Honorable Derek C. Carlisle, Judge
Patricia L. Williamson, Lake Havasu City Plaintiff/Appellant
Broening Oberg Woods & Wilson, PC, Phoenix By James R.
Broening, Michelle L. Donovan, Kevin R. Myer Counsel for
Presiding Judge Randall M. Howe delivered the opinion of the
Court, in which Judge Lawrence F. Winthrop and Judge Jon W.
Patricia L. Williamson appeals the trial court's order
dismissing her medical malpractice action with prejudice for
failure to serve a preliminary expert opinion affidavit as
A.R.S. § 12-2603 requires. For the following reasons, we
affirm the judgment as modified to reflect that the dismissal
is without prejudice.
AND PROCEDURAL HISTORY
In October 2013, Williamson filed a medical malpractice
action against Kevin J. O'Brien, DPM, stemming from a
podiatry surgery. Williamson did not certify whether an
expert opinion was necessary to prove her claim as A.R.S.
§ 12-2603(A) requires.
O'Brien moved for an order compelling Williamson to serve
a preliminary expert opinion affidavit in compliance with
A.R.S. § 12-2603. The trial court determined that expert
testimony was necessary to prove Williamson's claim and
ordered her to serve a preliminary expert opinion affidavit.
Williamson did not comply with the order, so O'Brien
moved for dismissal. Williamson then requested additional
time to comply with the order, which the court granted. The
trial court told Williamson that "if you fail to comply
with the court's order by October the 6th, 2014, and that
if the defendant moves to dismiss this lawsuit with prejudice
. . . you can anticipate that the court will grant that
motion to dismiss and your case will be over."
Before the extended deadline, Williamson filed a document
titled "Order-Medical Expert Affidavit" that
contained almost 70 pages of medical records purporting to be
a medical expert affidavit by Ronald Killian, DPM. The trial
court acknowledged that Williamson filed the document but
stated that it "takes no action." O'Brien again
moved for dismissal arguing that the document Williamson
submitted did not meet A.R.S. § 12-2603(B)'s
requirements. The court dismissed the complaint with
prejudice and entered judgment in favor of O'Brien for
After the trial court entered an order containing finality
language pursuant to Arizona Rule of Civil Procedure
("Rule") 54(c), Williamson timely appealed.
We review de novo dismissal for a failure to serve a
preliminary expert opinion affidavit required by A.R.S.
§ 12-2603. Romero v. Hasan, 241 Ariz.
385, 386 ¶ 6, 388 P.3d 22, 23 (App. 2017). We discern
Williamson's arguments as best we can and consider only
those that are adequately supported. In re Aubuchon,
233 Ariz. 62, 64-65 ¶ 6, 309 P.3d 886, 888-89 (2013).
Unsupported arguments are considered waived. Ritchie v.
Krasner, 221 Ariz. 288, 305 ¶ 62, 211 P.3d 1272,
1289 (App. 2009).
To the extent Williamson argues that the court improperly
granted dismissal because it overlooked the
"affidavit" she filed, we reject her argument.
Before dismissing the action, the court acknowledged
receiving the document titled "Order-Medical Expert