In Arizona medical malpractice cases, A.R.S. § 12-2604(A)(1) requires: “In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and the person meets the following criteria: 1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty.”
In a dental malpractice case that the Arizona Court of Appeals Division One (“Arizona Appellate Court”) decided on January 20, 2022, Plaintiff Penny Preszler had filed a dental malpractice action against Corwin Martin, D.D.S. regarding dental implant surgery that allegedly resulted in numbness in her face and mouth after the surgery. Because Martin is a board-certified specialist, the plaintiff’s expert opinion testimony could only be provided by someone with the same specialty and certified in the same specialty.
At one point in the litigation, the plaintiff designated Dr. Jeffrey D. Miller as her expert. Martin argued that Miller was not a qualified expert under A.R.S. § 12-2604, noting Miller is board certified in periodontia, while Martin is board certified in oral and maxillofacial surgery. Because Miller was not board certified in the same specialty, the trial court found he was not a qualified expert for Preszler’s claim and subsequently dismissed her Arizona dental malpractice lawsuit. Preszler appealed.
Arizona Appellate Court Opinion
Preszler argued on appeal that Section 12-2604 and the cases applying it do not resolve how a court should act when the procedure at issue, the dental implant surgery, is not subject to its own specialty but there are two Board Certified specialties equally qualified to perform the procedure.
The Arizona Appellate Court stated, “The record before the superior court included the qualifications for both Miller and Martin. That record showed Martin was a board-certified specialist in oral and maxillofacial surgery, but that Miller was not. Although Miller was board certified in periodontics, Preszler conceded in her response to Martin’s motion to dismiss that “[t]here is a distinction between a Board Certified oral and maxillofacial surgeon and a Board Certified periodontist.” These record facts adequately support the superior court’s reasoning.”
The Arizona Appellate Court further stated that its caselaw “clearly requires that a testifying expert be certified in the same specialty, even if physicians in other specialties might have competently provided the same treatment … Even though Preszler asserts that a periodontist and oral and maxillofacial surgeon could have treated Preszler, Martin was practicing within his board-certified specialty of oral and maxillofacial surgery at the time he rendered treatment to Preszler … Accordingly, Section 12-2604 required Miller to be certified in that same specialty, even though Miller might also have competently provided the treatment.”
Source Preszler v. Martin, No. 1 CA-CV 20-0659.
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