                    SUPREME COURT OF ARIZONA
                            En Banc

ROBERT BAKER, on behalf of        )   Arizona Supreme Court
himself and all those entitled    )   No. CV-12-0102-PR
to recover for the death of TARA  )
BAKER,                            )   Court of Appeals
                                  )   Division Two
             Plaintiff/Appellant, )   No. 2 CA-CV 11-0080
                                  )
                 v.               )   Pima County
                                  )   Superior Court
UNIVERSITY PHYSICIANS HEALTHCARE, )   No. C20097222
an Arizona corporation; BRENDA    )
J. WITTMAN, M.D. and JOHN DOE     )
WITTMAN, wife and husband;        )
ARIZONA BOARD OF REGENTS doing    )   O P I N I O N
business as UNIVERSITY OF         )
ARIZONA COLLEGE OF MEDICINE,      )
                                  )
            Defendants/Appellees. )
__________________________________)


          Appeal from the Superior Court in Pima County
             The Honorable Richard E. Gordon, Judge

                      VACATED AND REMANDED
________________________________________________________________

          Opinion of the Court of Appeals, Division Two
               228 Ariz. 587, 269 P.2d 1211 (2011)

                        VACATED IN PART
________________________________________________________________

LAW OFFICE OF JOJENE MILLS, P.C.                              Tucson
     By   JoJene E. Mills
Attorney for Robert Baker

CAMPBELL, YOST, CLARE & NORELL, P.C.                      Phoenix
     By   Stephen C. Yost
          Kenneth W. McCain
Attorneys for University Physicians Healthcare, Brenda J.
Wittman, Arizona Board of Regents, and University of Arizona
College of Medicine
HARALSON, MILLER, PITT, FELDMAN & MCANALLY P.L.C.                      Tucson
     By   Stanley G. Feldman

And

KNAPP & ROBERTS, P.C.                                 Scottsdale
     By   David L. Abney
Attorneys for Amici Curiae Arizona Association for Justice/
Arizona Trial Lawyers Association

HARALSON, MILLER, PITT, FELDMAN & MCANALLY P.L.C.        Phoenix
     By   Nathan J. Fidel
Attorney for Amici Curiae Steven Hardy and Mary Louise Hardy

JONES, SKELTON & HOCHULI, P.L.C.                                   Phoenix
     By    Eileen Dennis GilBride
Attorney for Amicus Curiae Mutual Insurance Company
of Arizona

SNELL & WILMER L.L.P.                                    Phoenix
     By   Barry D. Halpern
          Sara J. Agne
Attorneys for Amicus Curiae Arizona Medical Association
________________________________________________________________

B A L E S, Vice Chief Justice

¶1           This   case     concerns      the     interpretation         and

constitutionality of A.R.S. § 12-2604, which sets requirements

for experts who testify about the appropriate standard of care

in medical malpractice actions.

                                   I.

¶2           Seventeen-year-old   Tara   Baker   was   treated   for    blood

clots   by    Dr.   Brenda   Wittman,    an   employee    of     University

Physicians Healthcare and the Arizona Board of Regents.                   Ms.

Baker later died and her father, Mr. Robert Baker, brought this

wrongful-death action alleging medical malpractice against Dr.


                                   2
Wittman, her spouse, and her employers (collectively “UPH”).

¶3         Dr.    Wittman      is    certified    by   the   American        Board    of

Pediatrics in pediatrics and in pediatric hematology-oncology.

The American Board of Medical Specialties (“ABMS”) recognizes

pediatrics as a specialty and pediatric hematology-oncology as a

subspecialty of pediatrics.             To testify about the standard of

care owed to Ms. Baker by Dr. Wittman, Mr. Baker disclosed Dr.

Robert Brouillard as his expert.               Dr. Brouillard is certified by

the American Board of Internal Medicine in internal medicine and

in   hematology    and    medical       oncology.        The    ABMS     recognizes

internal   medicine      as    a    specialty    and   hematology      and    medical

oncology as subspecialties of internal medicine.

¶4         UPH    moved       for    summary    judgment,      arguing    that       Dr.

Brouillard was not a qualified expert under § 12-2604.                               The

statute provides in part:

     A.    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.

                                        3
       2.     During the year immediately preceding the
       occurrence giving rise to the lawsuit, devoted a
       majority of the person's professional time to either
       or both of the following:

       (a)   The active clinical practice of the same health
       profession as the defendant and, if the defendant is
       or claims to be a specialist, in the same specialty or
       claimed specialty.

       (b)    The instruction of students in an accredited
       health professional school or accredited residency or
       clinical   research   program   in   the  same   health
       profession as the defendant and, if the defendant is
       or claims to be a specialist, in an accredited health
       professional   school   or   accredited  residency   or
       clinical research program in the same specialty or
       claimed specialty.

A.R.S. § 12-2604(A)(1)-(2).

¶5          The   trial   court   granted    UPH’s       motion   for    summary

judgment.    Determining that the relevant specialty was pediatric

hematology, the trial court ruled that Dr. Brouillard was not a

qualified    expert   because     he,    unlike    Dr.    Wittman,      was   not

certified in that specialty.            (Although the attorneys and the

trial court referred to “pediatric hematology,” the correct term

is “pediatric hematology-oncology.”)              The court also rejected

Mr. Baker’s constitutional challenges to the statute.

¶6          The court of appeals agreed that Dr. Brouillard was

not qualified but reversed the trial court’s decision in part.

It ruled that the word “specialty” in § 12-2604 refers to one of

the twenty-four specialty boards that make up the ABMS, rather

than    subspecialties    such    as     pediatric       hematology-oncology.

                                    4
Baker     v.    Univ.       Physicians       Healthcare,          228    Ariz.    587,       590-91

¶¶   8,   13,        269    P.3d    1211,     1214-15    (App.          2012).         The       court

declined to follow Awsienko v. Cohen, in which another appellate

panel suggested that “specialty” includes ABMS subspecialties.

227 Ariz. 256, 258, 260 ¶¶ 9, 17-18, 257 P.3d 175, 177, 179

(App.     2011).           Under   the     definition        adopted      by     the    court       of

appeals    here,       Dr.    Brouillard       was    not     qualified          as    an    expert

because        he    was    not    board     certified       in    pediatrics,          the       ABMS

specialty in which Dr. Wittman was board certified.                                    Baker, 228

Ariz. at 591 ¶ 11, 269 P.3d at 1215.                          Remanding, the court of

appeals instructed the trial court to give Mr. Baker time to

find another expert who is board certified in pediatrics.                                          Id.

at 593 ¶ 25, 269 P.3d at 1217.

¶7              We    granted       review     to    address        issues       of     statewide

importance          regarding      the   application         of    §     12-2604.           We    have

jurisdiction          under        Article     6,    Section            5(3)     of     Arizona’s

Constitution and A.R.S. § 12-120.24.

                                               II.

¶8              We     interpret         statutes       to        give     effect        to        the

legislature’s intent, looking first to the statutory language

itself.        State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133

(1993).         When the language is clear and unambiguous, and thus

subject to only one reasonable meaning, we apply the language

without using other means of statutory construction.                                    State v.

                                               5
Gomez, 212 Ariz. 55, 57 ¶ 11, 127 P.3d 873, 875 (2006).                                 If,

however, the language is ambiguous, “‘we consider the statute’s

context;    its . . . subject           matter,    and    historical         background;

its effects and consequences; and its spirit and purpose.’”                             Id.

(quoting Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268, 872 P.2d

668, 672 (1994)).

¶9           The general intent of § 12-2604 is clear: in a medical

malpractice action, only physicians with comparable training and

experience may provide expert testimony regarding whether the

treating    physician         provided     appropriate     care.         The    statute,

however, is ambiguous regarding its application to particular

cases.      If a treating physician is or claims to be a board-

certified    specialist,         the   statute     provides      that    a     testifying

expert must be board certified in the same specialty.                                A.R.S.

§    12-2604(A).        But    the     statute    does    not    define        the    terms

“specialist”      or    “board      certified,”     and   Arizona       law     does    not

otherwise    provide         general     definitions      for    these       terms.       A

physician    need      not    be    considered     a   specialist        in     order    to

practice    in    a    certain      area   of    medicine,      and   physicians        who

specialize       may     provide        medical     treatment         outside         their

specialty.       Moreover, different specialists may be prepared by

training and experience to treat the same medical issue for a

particular       patient.          Finally,     physicians      may     hold    multiple

certifications from different certifying bodies.

                                           6
¶10              Applying § 12-2604 requires us to interpret its terms

in    a    way        that   comports    with     the       legislature’s      intent    and

provides guidance to those affected by its provisions.                           We first

consider         the     statute’s      application         to   testimony     about     the

“appropriate standard” of care and then consider the meaning of

the terms specialist, specialty, and board certified.

                                             A.

¶11              The statute sets qualifications for witnesses who may

provide          “expert     testimony     on     the       appropriate     standard      of

practice or care.”                A.R.S. § 12-2604(A) (emphasis added).                 This

language         informs     our     interpretation         of   the   other     statutory

provisions specifying qualifications for expert witnesses.

¶12              In     medical    malpractice     cases,        plaintiffs     must    show

that a health care provider breached the appropriate standard of

care and the breach resulted in injury.                           Id. § 12-563.          The

standard of care, however, necessarily depends on the particular

care or treatment at issue.                See id. § 12-563(1) (describing the

standard of care broadly, as “that degree of care, skill and

learning expected of a reasonable, prudent health care provider

in the profession or class to which he belongs within the state

acting in the same or similar circumstances”).                            Thus, only if

the       care     or    treatment      involved        a    medical   specialty        will

expertise in that specialty be relevant to the standard of care

in a particular case.

                                            7
¶13           With regard to treating physicians who are or claim to

be specialists, § 12-2604(A)(1) requires testifying experts to

“specialize[] . . . in the same specialty or claimed specialty

as the party against whom or on whose behalf the testimony is

offered.”       This requirement, however, presumes that the care or

treatment     at     issue   was     within        the   specialty   of    the    treating

physician.         If a treating physician practices outside his or her

specialty, the statute does not require a testifying expert to

possess qualifications in an irrelevant medical specialty, nor

would any such requirement make sense.                       See Baker, 228 Ariz. at

594   ¶   28,       269   P.3d      at     1218      (Eckerstrom,    J.,    concurring)

(“[E]xpert witnesses need not mirror those specialties of the

defendant     physician       that       are       not   pertinent   to    the    relevant

injury or procedure.”); Woodard v. Custer, 719 N.W.2d 842, 849-

50 (Mich. 2006) (reasoning that a statute similar to § 12-2604

should not be read to require irrelevant specialties and board

certifications); cf. Taylor v. DiRico, 124 Ariz. 513, 518-19,

606 P.2d 3, 8-9 (1980) (recognizing that common law does not

require expertise irrelevant to standard of care and holding

trial court did not err in permitting an internist to testify

against   a     surgeon      with    respect        to   “standard   of    care    in   the

overall treatment of the patient before and after surgery”).

¶14           We    accordingly          interpret       §   12-2604(A)    as    requiring

that a testifying expert specialize “in the same specialty or

                                               8
claimed specialty” as the treating physician only when the care

or treatment at issue was within that specialty.

                                                       B.

¶15           We       next     turn         to     the      meaning     of     “specialty”             and

“specialist” for purposes of § 12-2604.                               In this regard, medical

and       general        dictionary            definitions            provide        some        limited

guidance.        Cf. State v. Jones, 188 Ariz. 388, 392, 937 P.2d 310,

314 (1997) (relying on dictionaries to identify ordinary meaning

of statutory words).                  Dorland’s Illustrated Medical Dictionary,

for example, defines “specialist” as “a physician whose practice

is    limited       to    a    particular              branch    of     medicine          or    surgery,

especially one who, by virtue of advanced training, is certified

by    a    specialty          board      as       being      qualified        to     so    limit        his

practice”        and     “specialty”              as    “the     field    of        practice       of     a

specialist.”             Dorland’s            Illustrated         Medical          Dictionary       1767

(31st ed. 2007).                Similarly, The American Heritage Dictionary

defines “specialist” as “[a] physician whose practice is limited

to a particular branch of medicine or surgery, especially one

who   is    certified          by   a    board          of   physicians:       a     specialist          in

oncology.”          The       American        Heritage          Dictionary         of     the   English

Language 1681 (5th ed. 2011).                            It defines “specialty” as “[a]

branch      of      medicine            or        surgery,       such     as        cardiology          or

neurosurgery, in which a physician specializes; the field or

practice of a specialist.”                    Id.

                                                    9
¶16         Dictionary     definitions,       however,      do    not     resolve    the

issues before us.         Also relevant are the other provisions of

§ 12-2604.         The statute requires a testifying expert to have

spent a majority of his or her professional time practicing or

teaching in the specialty or claimed specialty during the year

preceding the occurrence.          A.R.S. § 12-2604(A)(2).                Because the

statute seeks to ensure that testifying experts have experience

and     training     comparable     to    the    treating         physician,        this

requirement suggests that in order for the treating physician to

be a specialist, he or she must have similarly spent a majority

of his or her professional time practicing or teaching in the

claimed specialty.

¶17         Concluding that a “specialist” is someone who devotes

most of his or her professional time to a particular “specialty”

still, however, leaves us with the challenge of defining the

term     “specialty.”       The     statute      refers      both       to    “claimed

specialty” and physicians who “claim[] to be a specialist.”                          Id.

§     12-2604.      But   the     statute     does    not    suggest         that    the

legislature intended the meaning of “specialty” to turn on how a

treating    physician     might    describe     his   or    her     own      particular

practice.        Instead, the statute is more reasonably interpreted

as     contemplating      that     “specialty”        has    a      more       general,

objectively determinable meaning.               In other words, a physician

might “claim” to be a specialist, but the statute does not mean

                                         10
that a “specialty” is whatever the treating physician claims.

¶18           The court of appeals concluded that “specialty” refers

to an area of practice occupied by one of the twenty-four ABMS

member    boards,        such       as    pediatrics.         Defining       “specialty”           by

referring to areas in which physicians can obtain certification

is a reasonable approach because § 12-2604 itself recognizes

that     physicians           may    become     board        certified       in    particular

specialties.        See id. § 12-2604(A)(1) (referencing “a specialist

who is board certified”).

¶19           Board certification is a voluntary process typically

administered by organizations such as national specialty boards.

See    John    J.       Smith,       Legal     Implications         of      Specialty        Board

Certification,          17     J.   Legal     Med.    73,     73-76      (1996);       1    Dan    J.

Tennenhouse,        1    Attorneys         Medical    Deskbook        4th    §   7:4,       at    7-6

(2006).       Certification requires graduation from an accredited

medical    school,            successful      completion       of     residency        or    other

training,      a    certification            exam,     and,    frequently,         continuing

education and practice requirements.                     Smith, supra, at 74.

¶20           Although          a        physician     can     practice          general          and

specialty      medicine             without     board        certification,            obtaining

certification           may    confer      certain    advantages         such     as       hospital

privileges,         lower       malpractice          insurance        rates,      and       higher

salaries.      Smith, supra, at 77.                   Most medical school graduates

in the United States participate in residency training and then

                                               11
seek board certification.               Mayo Found. for Med. Educ. & Research

v. United States, 131 S. Ct. 704, 708 (2011); Smith, supra, at

73-74; see also American Board of Medical Specialties, Better

Patient      Care      is        Built        on      Higher         Standards       (2012)

http://www.abms.org/About_ABMS/pdf/ABMS_Corp_Brochure.pdf

(representing         that       ABMS      member       boards         have      certified

approximately 80-85% of all U.S. licensed physicians).

¶21          Defining “specialty” by reference to practice areas in

which a physician may obtain board certification is a workable

approach because these areas are objectively identifiable and

reflect recognition by certifying bodies that certain practice

areas involve distinct training and experience.                            See Thomas B.

Ferguson,    Introduction         to    Legal      Aspects      of    Certification       and

Accreditation, at ix-x (Donald G. Langsley ed. 1983) (describing

the creation of the certification process as the “final step”

following     the     specialization          of     medicine        and   the     rise    of

accredited      specialty         training           programs).            We      construe

“specialty” for purposes of § 12-2604 as referring to a limited

area of medicine in which a physician is or may become board

certified.      See     Woodard,        719    N.W.2d      at   851    (interpreting        a

statute     similar    to    §   12-2604        as   “mak[ing]        it   clear    that    a

physician can be a specialist who is not board certified” and

“that   a   ‘specialist’         is    somebody      who   can       potentially     become

board certified”).

                                           12
¶22         We     disagree,                however,         with     the        court      of    appeals’

conclusion that § 12-2604 defines “specialty” solely with regard

to the areas of medicine occupied by the twenty-four ABMS member

boards   and     does       not       include          subspecialties.                See    Baker,       228

Ariz. at 590 ¶ 8, 269 P.3d at 1214.                              The court of appeals relied

upon Arizona insurance statutes that do not refer to the ABMS or

its constituent boards.                      See id. at ¶ 7 (citing A.R.S. §§ 20-

841.04(F), 20-1057.01(E), 20-2532(A)(2), 20-2538(B)); see also

A.R.S. § 20-1057.01(E) (referencing “a specialty discipline that

is recognized by an American medical specialty board” (emphasis

added)).

¶23         By     its      terms,           §    12-2604        does   not       confine        the    word

“specialty”      to     only          the    twenty-four            ABMS     member         boards.        As

commonly understood, a “subspecialty” is a more focused area of

practice       encompassed              by         a        broader     specialty,               but      the

subspecialty is itself a specialty.                              See Woodard, 719 N.W.2d at

851   (relying        on     dictionary                definitions          to     conclude        that     a

subspecialty          “is         a         particular           branch          of        medicine        or

surgery . . . that            falls              under       a   specialty            or     within      the

hierarchy of that specialty”); The American Heritage Dictionary,

supra ¶ 15, at 1734 (defining the prefix “sub” as “[b]elow;

under;     [and]       beneath”              as        well      as     “[s]ubordinate;                 [and]

secondary”).

¶24         By     excluding                 recognized           subspecialties                 from     the

                                                       13
definition of “specialty,” the court of appeals’ construction of

§ 12-2604 is both too broad and too narrow.                                      It would, for

example, allow a pediatrician certified by the American Board of

Pediatrics but who does not practice in hematology to testify

about the care provided by a pediatric hematologist - here, Dr.

Wittman    –    to     a    seventeen-year-old           patient            suffering     from    a

serious blood disorder.                 This is contrary to the statute’s goal

of    ensuring    that       experts      have    qualifications                 and   experience

comparable to the physician whose conduct is at issue.                                          The

opinion below also too narrowly limits “specialty” as embracing

only the twenty-four ABMS member boards, thereby excluding a

broad   range     of       practice      areas    certified            by    these     boards    as

subspecialties or by other certifying bodies.

¶25            UPH notes that the statute refers to a physician’s

“claimed specialty,” and suggests that this term could embrace a

subspecialty,        such        as   pediatric        hematology-oncology,               if    the

treating       physician         identified       it    as       his        or   her    “claimed”

specialty.       We reject this approach because, as noted above, we

do not construe the statute to turn on an individual physician’s

labeling   of     his       or    her    practice      as    a    particular           specialty.

Instead, we conclude that the word “claimed” in this context

refers to situations in which a physician purports to specialize

in an area that is eligible for board certification, regardless

of whether the physician in fact limits his or her practice to

                                             14
that area.    Cf. Lo v. Lee, 230 Ariz. 457, 460 ¶ 9, 286 P.3d 801,

804 (App. 2012) (holding that a defendant physician with board

certification      in    ophthalmology     also    had,    through       his    public

assertions, a claimed specialty of plastic surgery).

¶26         Whether the relevant “specialty” is an area of general

certification, like pediatrics, or subspecialty certification,

like   pediatric         hematology-oncology,        will       depend         on    the

circumstances of a particular case.               Just as a physician who is

a specialist may practice outside of his or her specialty, a

physician    who     is    a   subspecialist,       such       as   in     pediatric

hematology-oncology, may afford treatment or care that does not

involve   that     particular   subspecialty       but    is    embraced        by   the

broader specialty of pediatrics.             In that event, § 12-2604(A)

would require testifying experts to specialize in pediatrics.

                                      C.

¶27         Applying § 12-2604 in a case in which the treating

physician is or claims to be a specialist (that is, to devote a

majority of his or her practice to an area eligible for board

certification)       requires    a   trial        court     to      make       several

determinations.         The court must initially determine if the care

or treatment at issue involves the identified specialty, which

may include recognized subspecialties.               If it does, testifying

experts must share the same specialty as the treating physician.

The trial court then must determine if the treating physician is

                                     15
board certified within that specialty.              If so, any testifying

expert must also be board certified in that specialty.                (We have

no occasion here to interpret the statutory language regarding a

treating physician who “claims to be a specialist who is board

certified,”    as    Dr.   Wittman   indisputably    is   board   certified.)

Depending on the circumstances, the relevant specialty may be a

subspecialty in which the treating physician is board certified.

¶28          The statute does not require a testifying expert to

have identical certifications to the treating physician (e.g.,

when the treating physician has multiple certifications), but

only that the expert be certified in the specialty at issue in

the particular case.           Under § 12-2604(A)(2), proposed experts

must have spent a “majority of [their] professional time” during

the year preceding the occurrence either practicing or teaching

in that specialty or claimed specialty.             Because an individual

cannot devote a “majority” of his or her time to more than one

specialty,    the    statute    suggests   that    only   the   one   relevant

specialty need be matched.        See Woodard, 719 N.W.2d at 850.

                                      D.

¶29          The    parties    contested   below    whether     the   relevant

specialty was pediatric hematology-oncology or hematology.                 The

trial court determined that pediatric hematology, in which Dr.

Wittman was board certified, was the relevant specialty.                   (As

noted above, the correct terminology is pediatric hematology-

                                      16
oncology.)           Because Dr. Brouillard was not certified in this

specialty, the trial court ruled that he was not qualified as an

expert under § 12-2604.                 The trial court then granted summary

judgment to UPH because, without expert testimony, Mr. Baker

lacked the required evidence to establish the standard of care

and causation.

¶30            Apart from issues of statutory interpretation, which

we    review    de     novo,    we   review        trial      court    determinations        on

expert    qualifications         for    an    abuse      of    discretion.           State   v.

Keener,    110       Ariz.    462,   465-66,       520     P.2d   510,      513-14    (1974).

This     standard       of     review     equally        applies       to    admissibility

questions in summary judgment proceedings.                            See Gen. Elec. Co.

v. Joiner, 522 U.S. 136, 141-42 (1997); Mohave Elec. Co-op.,

Inc. v. Byers, 189 Ariz. 292, 301, 942 P.2d 451, 460 (App.

1997); Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 997

A.2d 954, 957 (N.J. 2010).

¶31            The    trial    court     correctly         interpreted       §    12-2604    to

require a testifying expert to be board certified in the same

specialty      as     Dr.    Wittman     if   she     was      practicing        within   that

specialty while providing the treatment at issue.                                As the trial

court observed, record evidence suggests that both non-pediatric

and pediatric hematologists could have treated a seventeen-year-

old patient for a blood disorder.                   The trial court did not abuse

its discretion in concluding that Dr. Wittman was practicing

                                              17
within her specialty of pediatric hematology-oncology.                         Section

12-2604 therefore required a testifying expert to be certified

in that specialty, even if physicians in other specialties might

also have competently provided the treatment.                         The trial court

did not err in ruling that Dr. Brouillard was not qualified as

an expert.

                                        III.

¶32          We next consider Mr. Baker’s argument that, if Dr.

Brouillard      is     not    a    qualified          expert,       the    statute    is

unconstitutional.           He contends that § 12-2604 violates equal

protection and access to the court guarantees under the Federal

and Arizona Constitutions, as well as Arizona’s anti-abrogation

clause and prohibition against special laws.                         He further urges

us to reconsider our recent holding that the statute does not

violate the separation of powers.                See Seisinger v. Siebel, 220

Ariz. 85, 96 ¶ 42, 203 P.3d 483, 494 (2009).

¶33          Our     analysis     is   guided         by    “a    strong    presumption

supporting the constitutionality of a legislative enactment and

the party asserting its unconstitutionality bears the burden of

overcoming the presumption.”                 Eastin v. Broomfield, 116 Ariz.

576, 580, 570 P.2d 744, 748 (1977).

                                            A.

¶34          Article    18,     Section      6   of    the       Arizona   Constitution

states   that      “[t]he    right     of    action        to    recover   damages   for

                                            18
injuries shall never be abrogated.”                    It prohibits “abrogation of

all common law actions for negligence, intentional torts, strict

liability, defamation, and other actions in tort which trace

origins to the common law.”                  Cronin v. Sheldon, 195 Ariz. 531,

538 ¶ 35, 991 P.2d 231, 238 (1999).                     The legislature, however,

may “regulate the cause of action for negligence so long as it

leaves a claimant reasonable alternatives or choices which will

enable him or her to bring the action.”                         Barrio v. San Manuel

Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 106, 692 P.2d

280, 285 (1984).

¶35         Although the statute might deny a plaintiff his expert

of    choice,   the      record       does    not   show    that        Mr.     Baker        lacks

“reasonable     alternatives           or    choices    which      will       enable     him or

her to bring the action.”                   Id.; accord Governale v. Lieberman,

226 Ariz. 443, 447 ¶ 9, 250 P.3d 220, 224 (App. 2011).                                  Section

12-2604   therefore       permissibly          regulates     rather          than     abrogates

Mr. Baker’s right to bring a medical malpractice suit.

                                              B.

¶36         Both      the     anti-abrogation             clause        of     the      Arizona

Constitution       and      the       Fourteenth     Amendment          of     the     Federal

Constitution       protect        a    plaintiff’s      right      of        access     to     the

courts.     Boddie       v.   Connecticut,          401    U.S.     371,        377     (1971);

Cronin, 195 Ariz. at 538-39 ¶ 35, 991 P.2d at 238-39.                                  A court

may not, consistent with the Arizona Constitution, prohibit a

                                              19
plaintiff from bringing a common law tort action.                                Cronin, 195

Ariz. at 538-39 ¶ 35, 991 P.2d at 238-39.                              Nor may a court,

under    the       Due     Process     Clause,        deprive     a     plaintiff         of     a

meaningful opportunity to be heard.                    Boddie, 401 U.S. at 377.

¶37           Although plaintiffs might face greater difficulties in

finding a qualified expert because of a smaller expert pool,

§ 12-2604 does not bar medical malpractice lawsuits or preclude

plaintiffs         from     recovery      in        such   actions.              Accordingly,

§ 12-2604      does       not   violate   the        open-court       guarantees      of       the

Arizona and Federal Constitutions.

                                               C.

¶38           Mr. Baker also contends that, by burdening his right

to    bring    a   medical      malpractice         action,   §   12-2604         denies       him

equal protection under the Federal and Arizona Constitutions.

He argues that the statute discriminates against plaintiffs with

claims    “against         licensed     healthcare         professionals”           and    also

discriminates        “between      classes      of     malpractice          victims.”          For

support, he states that twenty pediatric hematologists refused

to testify and the trial court did not permit his expert, a non-

pediatric hematologist, to testify.

¶39           The right to bring a negligence action, although not

fundamental        under    the   Federal       Constitution,          is    a    fundamental

right protected by the anti-abrogation clause of the Arizona

Constitution.         Kenyon v. Hammer, 142 Ariz. 69, 83, 688 P.2d 961,

                                           20
976 (1984); Ariz. Const. art. 18, § 6.

¶40          The trial court rejected Mr. Baker’s equal protection

arguments because they had already been addressed and rejected

by the court of appeals in Governale.                In that case, the court

ruled   that   §   12-2604    does    not     violate    the   equal    protection

clause of the Arizona Constitution.             Governale, 226 Ariz. at 449

¶ 19, 250 P.3d at 226.        Holding that the statute does not affect

the fundamental right to bring a medical malpractice action, the

court   applied    rational    basis    scrutiny        to   uphold    the    statute

because it is rationally related to a legitimate governmental

interest.      Id. at 448-49 ¶¶ 15-19, 250 P.3d at 225-26.                        The

court of appeals in this case affirmed the trial court’s ruling,

holding     that   Mr.   Baker       failed     to   distinguish        his    equal

protection     claim   from   that    raised    in   Governale.         Baker,    228

Ariz. at 593 ¶ 22, 269 P.3d at 1217.

¶41          This Court has stated that, “[i]f [the right to bring

an action for damages] is ‘fundamental,’ the strict scrutiny

analysis must be applied.”           Kenyon, 142 Ariz. at 79, 688 P.2d at

971.      To survive a strict scrutiny analysis, a statute must

serve a compelling state interest and be necessary to achieve

that interest.     Id. at 78, 688 P.2d at 970.               However, this Court

has sometimes applied rational basis review rather than strict

scrutiny to medical malpractice statutes that allegedly affected

plaintiffs’ rights.       See Eastin, 116 Ariz. at 582-86, 570 P.2d

                                       21
at 750-54 (applying rational basis scrutiny).

¶42           Our analysis in cases like Kenyon and Eastin has not

distinguished between equal protection claims based on alleged

violations of other constitutional provisions, such as the anti-

abrogation      clause,          and     claims       based       upon    an    impermissible

classification.             We   now     clarify       our    prior      decisions      in   this

respect.

¶43           This Court in Eastin applied a rational basis test to

analyze      equal    protection         challenges          to   a    medical       malpractice

statute creating a medical liability review panel, abrogating

the collateral source rule, and requiring a $2000 cost bond.

Id.    We observed that the “traditional equal protection test,”

requiring challenged legislation to have a “reasonable basis,”

should apply in the area of economics and social welfare.                                    Id.

at    582,   570     P.2d    at    750        (internal      quotation         marks    omitted)

(quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)).                                     We

held that the provisions creating a medical review panel, by

providing       a     mechanism           to         separate         meritorious       medical

malpractice claims from frivolous ones, did not offend Arizona’s

equal protection clause.                  Id. at 582-83, 570 P.2d at 750-51.

Likewise,      we    reasoned          that    the     abolition         of    the   collateral

source       evidentiary          rule        was     reasonably          related       to    the

legislative goal of decreasing malpractice premiums by scaling

down the size of jury verdicts.                        Id. at 585, 570 P.2d at 753.

                                                22
We did, however, hold that requiring a plaintiff to post a $2000

cost bond violated the privileges and immunities clause of the

Arizona Constitution because it limited access to the courts.

Id. at 585-86, 570 P.2d at 753-54.

¶44           In Kenyon, however, the Court held that the right to

bring   an       action   to    recover      damages    is    fundamental    under          the

Arizona Constitution and applied strict scrutiny to an equal

protection        challenge     to     a    medical    malpractice    statute.              142

Ariz. at 83, 688 P.2d at 975.                       Although Eastin had generally

applied      a    rational      basis       standard     in    reviewing     a   medical

malpractice        statute,      and       struck     down    only   the    $2000      bond

requirement that affected access to the courts, the Kenyon court

declared that Eastin “stands for the proposition that where the

fundamental right to bring or pursue the action is affected,

this court will not apply the rational basis analysis.”                          Id.

¶45           Relying on Kenyon, Mr. Baker urges the Court to apply

greater      scrutiny      to    an    equal      protection     claim     based       on     a

violation of the anti-abrogation clause than would apply to an

alleged      violation     of    the       anti-abrogation      clause     itself.           We

decline to do so.

¶46           We have recognized in the First Amendment context that

the same level of scrutiny - intermediate scrutiny – applies to

equal protection claims involving the First Amendment as applies

to First Amendment claims themselves.                    Coleman v. City of Mesa,

                                             23
230 Ariz. 352, 362 ¶ 41, 284 P.3d 863, 873 (2012).                                  Consistent

with   several       other    courts,       we    have       recognized       that    applying

strict   scrutiny         “simply     because         it     burdened       constitutionally

protected speech” would nullify the intermediate-scrutiny test

applied to content-neutral time, place, and manner restrictions.

Id. at ¶ 42 (quoting Brown v. City of Pittsburgh, 586 F.3d 263,

283 n.22 (3d Cir. 2009)).

¶47             Similarly, we see no reason to apply a higher level of

scrutiny    to       an   equal    protection          claim      involving       non-suspect

classifications grounded in the anti-abrogation clause of the

Arizona Constitution than to the abrogation claim itself.                                    See

Albright        v.   Oliver,      510     U.S.        266,       273   (1994)     (“Where      a

particular       Amendment        provides       an    explicit        textual      source    of

constitutional            protection       against           a     particular        sort     of

government behavior, that Amendment, not the more generalized

notion     of    substantive        due     process,         must      be   the     guide    for

analyzing       these      claims.”       (internal        quotation        marks     omitted)

(quoting Graham v. Connor, 490 U.S. 386, 395 (1989))).

¶48             Our declining to apply strict scrutiny does not itself

preclude Mr. Baker’s equal protection claim.                           Cf. Governale, 226

Ariz. at 448-49 ¶¶ 15, 17-19, 250 P.3d at 225-26 (holding that

§ 12-2604 does not affect a fundamental right and that, under a

rational basis analysis, the statute does not violate the equal

protection provision of the Arizona Constitution).

                                             24
¶49           To       the     extent      Mr.         Baker       claims        the        statute

impermissibly discriminates among plaintiffs, the classification

is reviewed under a rational basis standard because no suspect

class    is     implicated.              San        Antonio       Indep.       Sch.       Dist.       v.

Rodriguez, 411 U.S. 1, 16-17 (1973).                          By elevating the requisite

qualifications for experts in the medical malpractice context,

§     12-2604       conceivably       furthers            a    legitimate         interest            by

decreasing          medical        malpractice            insurance        rates          and     the

reluctance of physicians to practice in Arizona.                                See Seisinger,

220 Ariz. at 96 ¶ 41, 203 P.3d at 494.                          Because a rational basis

supports      the    “heightened         level       of    proof,”      id.     at    ¶    40,    the

statute does not violate the equal protection provisions of the

Arizona or Federal Constitutions.

                                                D.

¶50           Section         12-2604     also        does        not   violate           Arizona’s

constitutional prohibition on the enactment of “special laws” in

areas    that       include        “[c]hanging            [the]     rules       of    evidence,”

“[r]egulating          the    practice         of    courts       of    justice,”          and    the

“[l]imitation of civil actions.”                          Ariz. Const. art. 4, pt. 2,

§   19(3),      (5),    (6).        To    determine           whether      a    statute          is    a

prohibited special law, the Court considers: (i) “whether the

classification          has    a    reasonable            basis,”       (ii)     “whether         the

classification encompasses all members of the relevant class,”

and (iii) “whether the class is elastic,” permitting members to

                                               25
move in and out.           See Republic Inv. Fund I v. Town of Surprise,

166 Ariz. 143, 149, 800 P.2d 1251, 1257 (1990).

¶51           As    discussed,            supra       Part       III.C,     §    12-2604       has      a

rational basis because it is reasonably related to the goals of

ameliorating        the    public          health          problems       of     rising       medical

malpractice        insurance         rates       and       the    reluctance          of    qualified

physicians to practice in Arizona, Seisinger, 220 Ariz. at 96

¶     41,    203    P.3d       at        494.          The       statute        focuses      on      the

qualifications of experts, offered by any party, regarding the

appropriate        standard         of    care     by      a     health    professional           in    a

medical malpractice action.                       Because it applies to any party

seeking to offer an expert, § 12-2604 encompasses the relevant

class.       Republic Inv. Fund I, 166 Ariz. at 150, 800 P.2d at

1258.       Further, the class is elastic because the identities of

parties and their experts will change over time.                                     See Governale,

226 Ariz. at 449-50 ¶ 21, 250 P.3d at 226-27.                                   Accordingly, the

statute      is     not    a    special           law      prohibited           by    the     Arizona

Constitution.

                                                  E.

¶52           Finally,         we    decline          to       reconsider       our     holding        in

Seisinger, 220 Ariz. at 96 ¶ 42, 203 P.3d at 494, that § 12-2604

does not violate the separation of powers doctrine.

                                                  IV.

¶53           For    the   foregoing            reasons,          we   vacate        the    court      of

                                                 26
appeals’ opinion, except ¶ 1 insofar as it vacates the trial

court’s judgment and directs the trial court on remand to allow

Mr.   Baker   an   opportunity      to    identify     an   expert   with    the

qualifications     required    by   A.R.S.    §      12-2604   (an   issue   we

declined to review), and remand the case to the trial court for

proceedings consistent with this opinion.



                              __________________________________
                              Scott Bales, Vice Chief Justice

CONCURRING:


__________________________________
Rebecca White Berch, Chief Justice


__________________________________
A. John Pelander, Justice


__________________________________
Robert M. Brutinel, Justice


__________________________________
Michael J. Brown, Judge*




*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Michael J. Brown, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.


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