Court Rules No Expert Needed In Cipro Failure: David Francisco and his wife, Kimberley Francisco, appealed the superior court’s dismissal with prejudice of their medical negligence claim against Kevin Art, M.D. (“Dr. Art”) and Affiliated Urologists, Ltd. (collectively, “the Practice”) based on non-compliance with Arizona Revised Statutes (“A.R.S.”) section 12-2603.
The Franciscos filed a lawsuit against the Practice alleging medical negligence. The Franciscos alleged Dr. Art failed to inform David of the potential risks of taking ciprofloxacin (“Cipro”), a drug Dr. Art prescribed for David following a 2018 urological procedure. The Franciscos allege David had a reaction to Cipro that caused him permanent pain and injury. The Franciscos asserted that, had Dr. Art offered adequate information or prescribed a reasonable alternative, David would have requested a different antibiotic.
The Franciscos certified that expert witness testimony was not necessary to prove the applicable standard of care and liability. The Practice filed a motion to compel a preliminary expert opinion affidavit required under A.R.S. § 12-2603(D). In response, the Franciscos argued that, as recently as 2016, the Food and Drug Administration (“FDA”) warned in its Cipro medication insert that Cipro can cause “disabling and potentially irreversible serious adverse reactions,” and instructed doctors prescribing Cipro to use caution “when prescribing CIPRO to elderly patients especially those on corticosteroids,” to inform patients of this potential adverse reaction, and to give instructions “to discontinue CIPRO use and contact their healthcare provider if any symptoms of tendinitis or tendon rupture occur.” At the time of the surgery, David was 66 years old and had been taking corticosteroids for about 40 years. The Franciscos argued jurors could decide for themselves whether the FDA warnings would have been material to David’s decision-making process, and the FDA warnings at issue did not require experts for the jury to understand them. Ultimately, the Franciscos conceded they were unable to find an expert to provide a preliminary expert opinion affidavit. The superior court granted the Practice’s motion to compel a preliminary expert opinion affidavit as to the claims of negligent prescription of Cipro and failure to inform of the risks of taking the drug, as well as denied the Franciscos’ motion for reconsideration. The Franciscos appealed.
The Arizona Court of Appeals Division One held in its Memorandum Decision dated May 23, 2023: “The absence of expert testimony on the custom of the medical profession does not mandate dismissal under § 12-2603 when, as here, the FDA directs physicians to advise patients of all risks associated with prescribed medications, provides physicians with a specific “black box” warning, and the physician does not advise the patient of the specific warning. Here, specialized knowledge is not needed to evaluate whether the FDA instructed the doctor to give certain warnings to patients. The Franciscos should be permitted to present evidence that the FDA warnings for Cipro directed prescribers to inform their patients of the potential adverse reaction and give them instructions for further follow up. Should the Practice wish to offer responsive expert testimony that physicians are free to ignore such a directive, it may do so. In such circumstances, a layperson is well able to determine whether, in the context of all evidence from both sides, the failure to warn constituted negligence … We reverse and remand for further proceedings consistent with this decision.”
Source Francisco v. Affiliated Urologists Ltd., No. 1 CA-CV 21-0701.
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