Arizona Preliminary Expert Opinion Affidavit (Certificate of Merit)

PRELIMINARY EXPERT OPINION AFFIDAVIT — ARIZONA

(Functionally equivalent to a "Certificate of Merit" under A.R.S. § 12-2603)

Table of Contents

1. Court Caption
2. Section A — § 12-2603(A) Certification of Necessity of Expert Opinion Testimony
3. Section B — Preliminary Expert Opinion Affidavit
   - 3.1 Identity and Qualifications of Affiant (§ 12-2604)
   - 3.2 Materials Reviewed
   - 3.3 Applicable Standard of Care
   - 3.4 Acts, Errors, or Omissions Constituting Breach
   - 3.5 Causation
   - 3.6 Damages Resulting
   - 3.7 Reservation of Right to Supplement
   - 3.8 Notarial Jurat
4. Certificate of Service
5. Curative / Supplemental Affidavit Provisions
6. Sources and References

1. Court Caption

SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF [____________]

Case No.: [____________]
Assigned Judge: [____________]

PRELIMINARY EXPERT OPINION AFFIDAVIT PURSUANT TO A.R.S. § 12-2603

2. Section A — § 12-2603(A) Certification of Necessity of Expert Opinion Testimony

Pursuant to A.R.S. § 12-2603(A), Plaintiff [____________], by and through undersigned counsel, hereby certifies in this written statement as follows:

1. Plaintiff has asserted a claim against one or more health care professionals as defined in A.R.S. § 12-2603(I).

2. ☒ Expert opinion testimony IS necessary to prove the health care professional's standard of care or liability for the claim asserted in this action.

☐ Expert opinion testimony IS NOT necessary, because the conduct in question is so grossly apparent that a layperson would have no difficulty recognizing it (e.g., wrong-site surgery, retained foreign body, gross departure that requires no expert testimony per Lohmeier v. Hammer, 214 Ariz. 57 (App. 2006)).

3. Pursuant to A.R.S. § 12-2603(B) and Ariz. R. Civ. P. 26.1, Plaintiff will serve, with Plaintiff's initial disclosure statement (or within such other deadline ordered by the Court), a Preliminary Expert Opinion Affidavit signed by a qualified expert under A.R.S. § 12-2604.

DATED this [____] day of [_______________], [______].

By: __________________________________
[Attorney Name], SBN [____________]
Attorney for Plaintiff

3. Section B — Preliminary Expert Opinion Affidavit

3.1 Identity and Qualifications of Affiant (Compliance with A.R.S. § 12-2604)

STATE OF [____________] )
) ss.
COUNTY OF [____________] )

I, [EXPERT FULL NAME], [degrees and credentials, e.g., M.D., F.A.C.S.], being first duly sworn upon oath, depose and state under penalty of perjury:

1. Identity. I am over the age of eighteen, of sound mind, and competent to make this affidavit. The matters set forth herein are within my personal knowledge and are true and correct to the best of my knowledge.

2. Licensure. I am a [physician / surgeon / nurse / dentist / other health professional] licensed to practice in the State of [____________] under license no. [____________]. I am [☐ also / ☐ not] licensed in Arizona.

3. Specialty / Board Certification. I am a [☐ general practitioner / ☐ specialist] in [SPECIALTY], and I am [☐ board-certified by [Board, e.g., American Board of Internal Medicine] / ☐ not board-certified]. The Defendant health care professional whose conduct is at issue, [____________], M.D., is also (or held himself/herself out to be) a specialist in [____________] and is (or held himself/herself out as) board-certified by [____________]. My specialty and board-certification status match those of the Defendant as required by A.R.S. § 12-2604(A)(1).

4. Active Clinical Practice or Teaching. During the year immediately preceding the occurrence giving rise to this lawsuit (i.e., the year preceding [__/__/____]), I devoted a majority of my professional time to [☐ active clinical practice in the same specialty as the Defendant / ☐ instruction at an accredited health-professional school or accredited residency or clinical research program in the same specialty]. A current curriculum vitae is attached as Exhibit 1 and incorporated by reference. See A.R.S. § 12-2604(A)(2).

5. Contingent-Fee Disclaimer. My fee for review and testimony in this matter is not, in any way, contingent on the outcome of the case, in compliance with A.R.S. § 12-2604(B).

6. Prior Testimony. A list of cases in which I have testified at deposition or trial within the preceding four years is attached as Exhibit 2 (or will be supplemented with the Rule 26.1 disclosures).

3.2 Materials Reviewed

7. In forming the opinions expressed herein, I have reviewed the following records and materials [check all that apply]:

☐ Hospital admission and discharge records of [Facility] dated [__/__/____] to [__/__/____]
☐ Operative reports and anesthesia records
☐ Office and clinic records of [Provider]
☐ Diagnostic imaging studies (radiology, MRI, CT, ultrasound) and reports
☐ Laboratory and pathology reports
☐ Pharmacy and medication-administration records
☐ Nursing notes, flow sheets, and vital-sign records
☐ Consent forms and pre-procedure documentation
☐ Autopsy report (if applicable)
☐ Plaintiff's prior medical history and records of subsequent treating providers
☐ Deposition transcripts and witness statements (if available)
☐ Other: [____________________________________________]

3.3 Applicable Standard of Care

8. Based on my education, training, board certification, and clinical experience in the same specialty as the Defendant, I am familiar with the standard of care applicable to a [board-certified] [specialty] practitioner caring for a patient presenting with [____________] under circumstances substantially similar to those of Plaintiff on [__/__/____].

9. The applicable standard of care required Defendant [____________], M.D., and other Defendants identified herein, to:

a. [____________________________________________________________]

b. [____________________________________________________________]

c. [____________________________________________________________]

d. [____________________________________________________________]

3.4 Acts, Errors, or Omissions Constituting Breach (A.R.S. § 12-2603(B)(3))

10. Based on my review of the materials identified above, it is my opinion, held to a reasonable degree of medical probability, that Defendant [____________], M.D., and other identified Defendants violated the applicable standard of care by, inter alia:

a. ☐ Failing to obtain an adequate history and physical examination including [____________];

b. ☐ Failing to order or properly interpret [diagnostic study], which would have revealed [____________];

c. ☐ Failing to timely diagnose [____________] when the clinical presentation, vital signs, and available data demonstrated [____________];

d. ☐ Failing to perform [procedure] in accordance with accepted technique, including [specifics];

e. ☐ Failing to recognize and respond to the deteriorating clinical condition evidenced by [____________];

f. ☐ Failing to consult an appropriate specialist (e.g., [specialty]) when consultation was clinically indicated;

g. ☐ Failing to obtain informed consent disclosing material risk of [____________];

h. ☐ Other: [____________________________________________].

3.5 Causation (A.R.S. § 12-2603(B)(4))

11. It is my opinion, held to a reasonable degree of medical probability, that the foregoing breaches of the standard of care, individually and in combination, were a direct, proximate, and substantial cause of the injuries Plaintiff sustained, including [____________].

12. Specifically, but for Defendants' departures from the standard of care, the injuries described in Paragraph 13 below would not have occurred, or alternatively, Plaintiff's [☐ outcome / ☐ prognosis / ☐ functional capacity] would have been materially better.

13. The injuries proximately caused by Defendants' breaches include, without limitation: [permanent neurological deficit, surgical-site infection, progression of malignancy, retained foreign body, organ damage, death, etc.].

3.6 Damages Resulting

14. The injuries described above have produced, and will continue to produce, damages including past and future medical expenses, physical pain and suffering, mental anguish, loss of function, [☐ permanent disability / ☐ loss of life expectancy], and (if applicable) wrongful death.

3.7 Reservation of Right to Supplement

15. The opinions expressed in this Preliminary Expert Opinion Affidavit are based on the materials reviewed to date and on my present knowledge. Pursuant to A.R.S. § 12-2603(G) and Ariz. R. Civ. P. 26.1(b)(2), I expressly reserve the right to supplement, modify, or expand my opinions upon receipt of additional records, depositions, expert reports, and/or other discovery materials. This Affidavit is intended to satisfy the threshold requirements of § 12-2603(B) and is not a final or exhaustive statement of my trial opinions.

16. I understand that, pursuant to A.R.S. § 12-2603(G), this affidavit may not be used at trial except for impeachment purposes upon a finding by the court that the underlying facts have not substantially changed.

3.8 Notarial Jurat

FURTHER, AFFIANT SAYETH NAUGHT.

DATED this [____] day of [_______________], [______].

__________________________________
[EXPERT NAME], [credentials]
Affiant

SUBSCRIBED AND SWORN to before me this [____] day of [_______________], [______], by [EXPERT NAME].

__________________________________
Notary Public

My commission expires: [__/__/____]

4. Certificate of Service

I hereby certify that on the [____] day of [_______________], [______], I caused a true and correct copy of the foregoing Preliminary Expert Opinion Affidavit to be served via [☐ AZTurboCourt e-filing / ☐ U.S. Mail / ☐ hand delivery / ☐ email per Ariz. R. Civ. P. 5(c)] upon all counsel of record listed below:

[Counsel for Defendant Physician]
[Counsel for Defendant Hospital]
[Other counsel of record]

By: __________________________________
[Attorney Name], SBN [____________]

5. Curative / Supplemental Affidavit Provisions

Supplemental Affidavit (Use If Cure Required)

SUPPLEMENTAL PRELIMINARY EXPERT OPINION AFFIDAVIT

I, [EXPERT NAME], having previously executed a Preliminary Expert Opinion Affidavit on [__/__/____], hereby supplement that Affidavit pursuant to A.R.S. § 12-2603(F) to address the alleged deficiencies identified in Defendants' [Motion to Dismiss / Notice of Insufficiency] dated [__/__/____], as follows:

[Address each alleged deficiency separately, with paragraph cross-references to the original affidavit.]

All other statements in my prior Affidavit remain true and correct and are reaffirmed under oath.

DATED: [__/__/____]
__________________________________
[Expert Name]

[Notarial jurat as above.]

6. Sources and References

• A.R.S. § 12-2602 — Preliminary expert opinion certification (generally)
• A.R.S. § 12-2603 — Preliminary expert opinion testimony against health care professionals
• A.R.S. § 12-2604 — Expert witness qualifications (medical malpractice)
• Ariz. R. Civ. P. 26.1 — Initial disclosures
• Ariz. R. Evid. 702 — Testimony by expert witnesses
• Rasor v. Northwest Hospital, LLC, 243 Ariz. 160, 403 P.3d 572 (2017) (cure provision not available at summary judgment)
• Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317 (App. 2008) (timing and content of preliminary affidavit)
• Baker v. University Physicians Healthcare, 231 Ariz. 379 (2013) (§ 12-2604 specialty matching)
• Lohmeier v. Hammer, 214 Ariz. 57 (App. 2006) (when expert testimony unnecessary)
• Seisinger v. Siebel, 220 Ariz. 85 (2009) (constitutionality of § 12-2604)