ARS Section 12-2603 Interpretation
As explained in Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 323,20, 183 P.3d 1285 (App. 2008), A.R.S. 12-2603 "erects an orderly procedure by which the respective parties can litigate what expert witness testimony will be necessary and what experts must therefore be disclosed--and it does not contemplate dismissal with prejudice as a sanction for a deficient preliminary affidavit."
In Sanchez, the plaintiffs had timely disclosed the affidavit of an orthopedic surgeon, but failed to disclose an anesthesiologist. Id. at 319,4.
After the disclosure deadline had expired, one of the defendants moved to dismiss the medical malpractice complaint for failure to comply with A.R.S. 12-2604. Id.
The court granted the motion to dismiss with prejudice and the plaintiffs appealed. Id.
The Court upheld the trial court's determination that the plaintiffs' standard of care expert disclosures were deficient. Id. at 322,17.
The Court further held, however, that the court's dismissal of the complaint with prejudice was contrary to A.R.S. 12-2603.
In reaching this conclusion, we noted that the plaintiffs had provided their deficient affidavit well within the disclosure deadline, yet the defendants did not directly challenge the sufficiency of the affidavit within the discovery period, but instead filed their motion for dismissal after the discovery period expired. Id. at 324,24. the Court concluded that the sanction of "dismissal with prejudice . . . was not authorized" under A.R.S. 12-2603. Id. at25.