Stephens v. Corizon Health Care

          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 ¶¶ 42, 44-46.) She further alleges that she submitted additional HNRs ...