United States District Court, D. Arizona
ORDER
Bridget S. Bade United States Magistrate Judge
Defendants
Corizon Health Inc. (“Corizon”) and Remy
Rodriguez (“Rodriguez”) (collectively, the
“Corizon Defendants”) have filed a “Motion
to Compel Preliminary Expert Opinion Affidavit” related
to Plaintiff's state law claims. (Doc. 81.) The Corizon
Defendants ask the Court to order Plaintiff to serve a
preliminary expert opinion affidavit concerning all state law
claims asserted against the Corizon Defendants within thirty
days of this Court's Order pursuant to Ariz. Rev. Stat.
§ 12-2603(D). (Doc. 81.) Plaintiff has not responded to
this motion. The Court grants the Corizon Defendants'
motion.[1]
I.
Arizona Statutory Requirements for Medical Malpractice
Claims
Under
Arizona law, medical malpractice claims are governed by
statute.[2] Ariz. Rev. Stat. §§ 12-2603-04;
see also Seisinger v. Siebel, 203 P.3d 483, 493
(Ariz. 2009). Additionally, Arizona law has specific
requirements for maintenance of medical malpractice actions.
See Ariz. Rev. Stat. §§ 12-2603-04.
First,
the plaintiff must certify whether expert opinion testimony
is needed to establish the provider's standard of care
and liability “in a written statement that is filed and
served with the claim.” Ariz. Rev. Stat. §
12-2603(A). Second, if an expert is necessary, the claimant
must “serve [the] preliminary expert opinion affidavit
with the initial disclosures.” Ariz. Rev. Stat. §
12-2603(B). The preliminary expert opinion affidavit must
contain the following information: (1) the expert's
qualifications to express a medical opinion on the standard
of care or liability on the claim; (2) the factual basis for
each medical claim against the health care professional; (3)
what conduct by the health care professional constituted a
violation of the standard of care or resulting liability; and
(4) how the health care professional's conduct caused or
contributed to the claimant's damages. Id.;
see, e.g., Gorney v. Meaney, 150 P.3d 799,
802, 804 (Ariz.Ct.App. 2007). Third, “[i]f the claimant
. . . certifies that expert testimony is not required for the
claim . . . [and] the healthcare professional . . . disputes
that certification in good faith, ” the defendant
healthcare professional can file a motion to compel the
plaintiff to serve a preliminary expert affidavit. Ariz. Rev.
Stat. § 12-2603(D).
II.
Relevant Procedural Background
On
February 27, 2017, Plaintiff filed an Amended Complaint
alleging, among other claims, the following state law claims
against the Corizon Defendants: (1) a state law medical
negligence claim concerning medical care and treatment for an
alleged tongue mass (Count Five); (2) an intentional
infliction of emotional distress claim based upon the medical
negligence alleged in Count Five (Count Two); and (3) a
negligent infliction of emotional distress claim based upon
the negligence alleged in Count Five (Count Three). (Doc. 15;
see also Doc. 16.) As previously noted, the Court
has ordered Plaintiff to submit a preliminary expert opinion
affidavit to support her state law claims against Defendant
Gray. (Doc. 75.) Plaintiff has not submitted the required
affidavit. The Corizon Defendants now move to compel
Plaintiff to produce a preliminary expert opinion affidavit
related to Plaintiff's state law claims asserted against
them in Counts Two, Three, and Five.[3] (Doc. 81.) Plaintiff has not
responded to that motion and the time to do so has passed.
III.
Plaintiff's Allegations
On
March 4, 2013, Corizon contracted with the Arizona Department
of Corrections (“ADC”) to provide medical, mental
health, and dental care to the inmates housed at Arizona
prison complexes, including the prison in Perryville-where
Plaintiff has at all relevant times been incarcerated. (Doc.
15 at ¶ 17.) Plaintiff alleges that despite
Corizon's awareness of system-wide deficiencies that have
caused, and continue to cause, harm to inmates such as
Plaintiff, Corizon continues to enable certain customs,
decisions, and policies that cause harm to inmates in
Corizon's custody. (Id. at ¶ 18.)
Plaintiff
alleges that for an inmate to request health care, he or she
must submit a health needs request (“HNR”) that
describes the need for medical, dental, or mental health
attention. (Id. at ¶ 20.) Plaintiff alleges
that HNR applications cost money, are regularly rejected, and
when they are not rejected, are often not processed in a
timely manner. (Id. at ¶¶ 20-21.)
Plaintiff further alleges that Defendants are intentionally
indifferent to the harm that may result from failing to
provide the requested care. (Id. at ¶ 21.)
Plaintiff
alleges that Defendants have a practiced policy of failing to
prescribe, provide, and properly manage medication, and that
when medication is prescribed and provided, it is done
“only . . .[in] incorrect, interrupted, or incomplete
dosages.” (Id. at ¶¶ 22-23, 32)
(emphasis added). Plaintiff claims that Corizon's alleged
conduct has led to Plaintiff experiencing delays in receiving
medicine and medical supplies. (Id. at ¶ 22.)
Plaintiff further alleges that Defendant Corizon consistently
understaffs health care positions, which results in
insufficient staff to timely respond to inmates' health
care requests and provide follow-up care. (Id. at
¶ 24.)
Plaintiff
alleges that on January 7, 2016 she was sent to dental
specialist Dr. Donovan Hanson for a biopsy and potential
removal of a mass on her tongue. (Id. at ¶ 28.)
Plaintiff alleges that Dr. Hanson conducted surgery and
removed the mass without warning Plaintiff that the surgery
would require general anesthesia or that the mass would be
excised. (Id. at ¶¶ 29-30.) Plaintiff
claims that had she known that the mass would be excised, she
would not have agreed to the surgery. (Id. at ¶
29) Plaintiff alleges that Dr. Hanson prescribed Plaintiff
antibiotics and directed Defendant Gray to start Plaintiff on
the antibiotic regimen the day of the surgery, and to provide
Plaintiff with a sterile wash to use post-surgery as part of
her wound care regimen. (Id. at ¶ 31.)
Plaintiff alleges that post-surgery, Defendant Gray approved
“nothing else” besides Tylenol for the pain, and
did not provide Plaintiff with anything for wound care.
(Id. at ¶ 33.)
Plaintiff
alleges that three days after her surgery, her stitches split
and caused “an open, gaping surgical wound filled with
pus.” (Id. at ¶ 34.) Plaintiff alleges
that she requested to see a doctor immediately, but her
request went unanswered. (Id. at ¶ 35.) About a
week after surgery, Plaintiff was sent to a dental facility
where she allegedly complained of pain and an infection in
her wound, but a dental student substituting for Defendant
Gray stated he was not authorized to take any action.
(Id. at ¶ 36.) Plaintiff claims that she filed
several HNRs to try to get her pain addressed. (Id.)
Plaintiff further alleges that after “countless”
HNRs and grievances and “weeks” of complaining
about the infection, a “practitioner” prescribed
codeine and amoxicillin-both of which Plaintiff alleges were
ineffective. (Id. at ¶¶ 37-38.)
Plaintiff
alleges that she saw Defendant Gray in February 2016 and she
showed him an “open, oozing wound.” (Id.
at ¶ 40.) Plaintiff claims that Defendant Gray indicated
that he would prescribe an antibiotic, and prescribed
Acyclovir. (Id. at ¶ 41.) Plaintiff claims that
Acyclovir is not an antibiotic, and that it made the
infection and wound worse. (Id.) Plaintiff alleges
that she made repeated requests for health care, which were
ignored. (Id. at ¶¶ 42-44.) Furthermore,
Plaintiff alleges her lack of prompt medical care caused
sleeping and eating issues, which resulted in her losing
weight. (Id. at ΒΆΒΆ 42, 44-46.) She further
alleges that she submitted additional HNRs ...