                                                                        FILED BY CLERK
                                IN THE COURT OF APPEALS                     JAN 31 2007
                                    STATE OF ARIZONA
                                                                            COURT OF APPEALS
                                      DIVISION TWO                            DIVISION TWO


DALE GORNEY,                                   )
                                               )          2 CA-CV 2006-0075
                       Plaintiff/Appellant,    )          DEPARTMENT B
                                               )
                      v.                       )          OPINION
                                               )
JOHN MEANEY; RINCON                            )
ORTHOPEDIC ASSOCIATES, P.C.,                   )
                                               )
                   Defendants/Appellees.       )
                                               )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. C-20051862

                                Honorable Leslie Miller, Judge

                                        AFFIRMED


Herbert Beigel & Associates
 By Herbert Beigel                                                                  Tucson
                                                          Attorneys for Plaintiff/Appellant

Slutes, Sakrison & Hill, P.C.
 By David E. Hill                                                                  Tucson

and

Jones, Skelton & Hochuli, P.L.C.
 By Eileen Dennis Gilbride                                                       Phoenix
                                                       Attorneys for Defendants/Appellees


E S P I N O S A, Judge.
¶1            Plaintiff/appellant Dale Gorney appeals from the trial court’s grant of summary

judgment in favor of Dr. John Meaney and Rincon Orthopedic Associates, P.C. (“Meaney”)

after finding Gorney had not complied with the expert witness requirements of A.R.S. § 12-

2603. On appeal, Gorney argues the court misinterpreted the requirements of § 12-2603 and

improperly granted summary judgment. We affirm.

                           Factual and Procedural Background

¶2            On appeal from a summary judgment, we view the evidence and all legitimate

inferences therefrom in the light most favorable to the party against whom summary

judgment was granted. Wilson v. Playa de Serrano, 211 Ariz. 511, ¶ 2, 123 P.3d 1148, 1149

(App. 2005). In October 1998, Meaney performed arthroscopic surgery on Gorney’s left

knee. In April 2005, Gorney sued Meaney for medical malpractice, alleging Meaney had

“failed to inform [him] of the material risks of the surg[ery]” 1 and the surgery had caused his

“condition to worsen.” Meaney answered that he had informed Gorney of all material risks

associated with the surgery. In July 2005, Meaney moved to dismiss the complaint on the

grounds Gorney had failed to certify whether expert testimony was needed to prove his claim

and had thereby violated the requirements of § 12-2603(A). Prior to oral argument on the



       1
        Although the first count of Gorney’s complaint is entitled “Battery,” in the context
of lawsuits against health care providers, Arizona courts distinguish between “battery,” an
intentional tort where the provider performs a medical procedure to which the patient has not
consented, and “lack of informed consent,” where the provider does not adequately disclose
the risks and alternative treatments prior to performing the procedure. See Duncan v.
Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, ¶ 11, 70 P.3d 435, 438-39 (2003). Gorney’s
allegations amount to “lack of informed consent,” were treated as such below, and will be
so treated on appeal.

                                               2
motion, Gorney certified that his claim required expert testimony. At oral argument, the

court gave Gorney until September 2005 to obtain an expert opinion affidavit to support his

claim.

¶3             In late September, Gorney provided Meaney an expert opinion affidavit from

Dr. Roy Gettel, who opined that “[p]rior to performing an arthroscopic surgery, [a] doctor

must inform the patient of the risks of the surgery,” and failure to do so “constitutes a breach

of the applicable standard of care.” In December 2005, Meaney moved for summary

judgment, claiming this affidavit did not conform to the requirements of § 12-2603(B). Soon

thereafter, Gorney provided a second affidavit from Gettel, which listed several treatment

alternatives to arthroscopic surgery and stated “discussion should be made with the patient

so that he has a complete understanding of the various treatment [options] available.” After

oral argument, the trial court granted Meaney’s motion for summary judgment.

                          Preliminary Expert Opinion Testimony

¶4             Gorney contends the trial court’s grant of summary judgment was based on an

erroneous interpretation of § 12-2603(B).           Because Gorney’s argument involves the

interpretation of a statute and a question of law, we review the trial court’s judgment de novo.

See Dressler v. Morrison, 212 Ariz. 279, ¶ 11, 130 P.3d 978, 980 (2006). In interpreting

statutes, we first examine the plain language of the provisions involved. Nordstrom v.

Cruikshank, 213 Ariz. 434, ¶ 14, 142 P.3d 1247, 1252 (App. 2006). When a statutory

provision is clear on its face and is logically capable of only one interpretation, we give effect

to that language and apply it without using other means of statutory construction, unless


                                                3
applying the literal language would lead to an absurd result. Arpaio v. Steinle, 201 Ariz. 353,

¶ 5, 35 P.3d 114, 116 (App. 2001).

¶5            Section 12-2603(A) requires plaintiffs alleging medical malpractice to certify

whether expert testimony will be needed to prove their claims. If so, the plaintiff must

provide the defendant, within forty days of the defendant’s responsive pleading, an expert

opinion affidavit that supports the claim. § 12-2603(B). This affidavit “shall contain at least

the following information”:

              1. The expert’s qualifications to express an opinion on the
              health care professional’s standard of care or liability for the
              claim.

              2. The factual basis for each claim against a health care
              professional.

              3. The health care professional’s acts, errors or omissions that
              the expert considers to be a violation of the applicable standard
              of care resulting in liability.

              4. The manner in which the health care professional’s acts,
              errors or omissions caused or contributed to the damages or
              other relief sought by the claimant.

Id.

¶6            The first provision of the statute is not at issue on appeal; Meaney does not

challenge Gettel’s expert qualifications, and the first affidavit stated that Gettel’s curriculum

vitae was attached, although it is not in the record before us. Below, Meaney argued

Gorney’s expert opinion affidavits failed to “offer an opinion as to whether Dr. Meaney

violated the applicable standard of care” and did “not state whether Dr. Meaney’s care was

the proximate cause of [Gorney’s] injury,” as required by the statute. The trial court agreed

                                               4
and found Gorney had “failed to submit an affidavit in compliance with A.R.S. § 12-2603.”

On appeal, Gorney contends that informed consent claims are materially different from other

medical malpractice claims, and despite the seemingly unambiguous requirements of the

statute, the second, third, and fourth provisions of § 12-2603 (hereafter the “factual basis,”

“breach of duty,” and “causation” provisions) should not be literally applied. For the reasons

expressed below, we do not agree.

“Factual Basis” and “Breach of Duty”

¶7             The “factual basis” and “breach of duty” provisions of § 12-2603(B) require

a plaintiff’s expert to state the factual basis for the plaintiff’s claims and list those acts the

expert has determined fell below the applicable standard of care. § 12-2603(B)(2) and (3).

Gorney argues that an expert in an informed consent case can have no personal knowledge

of whether a patient was given adequate disclosure prior to the procedure—the expert can

only know the facts as related by the patient—and is therefore unable to describe the

defendant’s actions and state they fell below the standard of care. Thus, Gorney maintains,

for claims based on a lack of informed consent, the “factual basis” and “breach of duty”

provisions of § 12-2603 should only require the expert to “(a) define the standard of care, to

wit, the risks that should be told the patient” and state that “(b) failure to so inform the

plaintiff would constitute a violation of the standard of care.” To hold otherwise, he argues,

would be tantamount to the expert’s improperly finding facts and testifying about matters of

credibility, matters exclusively reserved for the jury. See Estate of Reinen v. N. Ariz.




                                                5
Orthopedics, Ltd., 198 Ariz. 283, ¶ 12, 9 P.3d 314, 318 (2000) (evaluating credibility of

witnesses particularly within province of jury).

¶8            Arizona courts have not yet addressed the requirements of § 12-2603;

therefore, it is useful to look to other states with similar statutes. Arizona is among several

states that have enacted legislation attempting to curb frivolous medical malpractice lawsuits

by imposing a stricter standard of pleading and setting deadlines for the early involvement

of the plaintiff’s expert witness.2 One state, Illinois, created a special exception to its more

stringent pleading requirements for informed consent claims. Generally, Illinois requires

plaintiffs’ attorneys to attach to any complaint alleging medical malpractice an affidavit

stating the attorney has consulted with a health care professional who “has determined in a

written report . . . there is a reasonable and meritorious cause for filing of such action.” 735

Ill. Comp. Stat. Ann. 5/2-622(a)(1) (2005). For informed consent claims, however, the

attorney must only submit an affidavit stating an expert has “concluded that a reasonable

health professional would have informed the patient of the consequences of the procedure.”

Id. at 5/2-622(d). Although not mentioned by Gorney, we note this provision is consistent

with his argument for interpreting § 12-2603(B)(2) and (3).




       2
        Other states that have enacted such legislation include Colorado, Florida, Georgia,
Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, and North Dakota. See
Colo. Rev. Stat. § 13-20-602 (2005); Fla. Stat. § 766.104 (2002); Ga. Code Ann. § 9-11-9.1
(2006); Mich. Comp. Laws Ann. § 600.2912b (2000); Minn. Stat. § 145.682 (2004); Mo.
Ann. Stat. § 538.225 (2005); Nev. Rev. Stat. 41A.071 (2002); N.J. Stat. Ann. § 2A:53A-27
(2004); N.Y. C.P.L.R. 3012-a(c) (McKinney 1991); N.D. Cent. Code § 28-01-46 (2005).

                                               6
¶9            But Illinois’s exception for informed consent claims was statutorily created.

Section 12-2603 creates no such exception; indeed, the absence of any such language in our

statute suggests Arizona’s legislature did not intend to make one. See City of Tempe v.

Fleming, 168 Ariz. 454, 457, 815 P.2d 1, 4 (App. 1991) (courts may not read into statutes

something the legislature has not put there). Most states do except from their heightened

pleading requirements for medical malpractice cases those claims that will not require expert

testimony at trial.3 Section 12-2603(A), too, excepts plaintiffs from providing an expert

opinion affidavit where expert testimony will not be necessary at trial. Gorney certified,

however, that such testimony would be required.

¶10           Where an expert must provide an affidavit attesting to facts of which the expert

does not have personal knowledge, several states require that expert to simply accept the

facts as alleged by the plaintiff. In Georgia, for example, “[a]n expert affidavit . . . need not

be based upon the affiant’s actual personal knowledge.” Dozier v. Clayton County Hosp.

Auth., 424 S.E.2d 632, 638 (Ga. Ct. App. 1992). Instead, “the affiant may base his expert

opinion upon an assumption that the factual allegations of the complaint are true[,] . . . just

as he could base his expert opinion at trial upon an assumption of the truth of the evidence

adduced to support those allegations.” Id. The affidavit need only state “‘that, in his expert



       3
        See, e.g., Colo. Rev. Stat. § 13-20-602 (2005) and Minn. Stat. § 145.682 (2004)
(expert testimony required only where necessary to establish prima facie case); Hubbard ex
rel. Hubbard v. Reed, 774 A.2d 495, 501 (N.J. 2001) (“There is a common knowledge
exception to [New Jersey’s] Affidavit of Merit Statute . . . .”); N.Y. C.P.L.R. 3012-a(c)
(McKinney 1991) (no affidavit required “[w]here the attorney intends to rely solely on the
doctrine of ‘res ipsa loquitur’”).

                                               7
opinion, such facts, if true, would constitute professional malpractice.’”          Id., quoting

Druckman v. Ethridge, 401 S.E.2d 336, 337 (Ga. Ct. App. 1991). Similarly, in Minnesota,

an expert’s affidavit may rely on “the acts or omissions that the plaintiff alleges violated the

standard of care.” Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 428 (Minn. 2002)

(emphasis added).

¶11            The plain language of § 12-2603(B)(2) and (3) is clear on its face and logically

capable of only one interpretation. For all medical malpractice claims that will require expert

testimony at trial, including informed consent claims, the plaintiff’s expert must state the

“factual basis for each claim” and the “acts, errors or omissions that the expert considers to

be a violation of the applicable standard of care.” We agree with the trial court that neither

of Gettel’s affidavits meets these requirements. Neither describes what disclosures, if any,

Meaney made to Gorney concerning the risks prior to performing the surgery. And neither

affidavit states that Meaney’s actions fell below the accepted standard of care. We find that

where an expert does not have personal knowledge of the facts of the case, § 12-2603(B)(2)

and (3) require that the expert base an opinion on the facts as alleged by the plaintiff and state

that these facts, if true, violate the accepted standard of care.4 Thus, Gettel’s affidavits



       4
        We note the ostensible tension between our holding here and Rule 56(e), Ariz. R.
Civ. P., 16 A.R.S., Pt. 2, which states “[s]upporting and opposing affidavits shall be made
on personal knowledge.” But an expert is permitted to testify in the form of an opinion, see
Ariz. Rule Evid. 702, 17A A.R.S., and § 12-2603 merely requires an expert to attest to his
or her opinion, informed by the body of his or her personal knowledge as an expert, as to
whether the defendant’s actions as they are alleged by the plaintiff constitute medical
malpractice. Thus, Rule 56(e) does not prevent an appropriate affidavit from addressing the
elements of § 12-2603.

                                                8
should have listed what disclosures Meaney made to Gorney prior to performing the surgery,

based upon the facts as alleged by Gorney. Gettel should have then stated whether these

disclosures were inadequate and fell below the standard of care.

¶12           This conclusion is consistent with the legislature’s express purpose of

“curtail[ing] the filing of frivolous lawsuits against health care professionals.” 2004 Ariz.

Sess. Laws, ch. 4, § 2. To effectively evaluate the merits of a lawsuit, an expert must be fully

aware of the facts alleged by the plaintiff. There would be no check on the filing of frivolous

claims if an expert were permitted to simply recite a standard of care and generally state that

failure to meet the standard constitutes malpractice.         Under such an interpretation,

meritorious and frivolous cases alike could be prosecuted without passing any meaningful

scrutiny by an expert.       Therefore, we reject Gorney’s proposed interpretation of

§ 12-2603(B)(2) and (3). Instead, we hold an expert must apply the facts of the particular

case at hand to the applicable standard of care and issue an opinion as to whether the

defendant’s specific actions met or fell short of that standard. See generally Pendleton v.

Cilley, 118 Ariz. 84, 86, 574 P.2d 1303, 1305 (1978) (“[A] physician’s negligence must be

shown by expert medical testimony . . . .”).

“Causation”

¶13           Gorney next contends that the “causation” provision of § 12-2603(B)(4) need

not be addressed by an expert opinion affidavit in an informed consent claim because “the

injury of proceeding with a surgery at all in the absence of informed consent is established




                                               9
without regard to expert testimony.” Meaney responds that § 12-2603 makes no exception

from its requirements for claims based on lack of informed consent.

¶14           We again disagree with Gorney’s proposed interpretation of § 12-2603.

Contrary to Gorney’s assertion, a medical procedure performed without informed consent

does not, in itself, proximately cause an actionable injury to a plaintiff; rather, a plaintiff

must show he or she has suffered some injury as a result of the undisclosed risk. See Hales

v. Pittman, 118 Ariz. 305, 311, 576 P.2d 493, 499 (1978) (“failure of a physician to disclose

a known risk does not, standing alone, constitute sufficient grounds for a malpractice action”;

occurrence of risk must be harmful to patient since negligence unrelated to injury is

nonactionable).

¶15           Traditionally, plaintiffs alleging lack of informed consent must show two types

of causation: 1) adequate disclosure would have caused the plaintiff to decline the treatment,

and 2) the treatment proximately caused injury to the plaintiff. See Shetter v. Rochelle,

2 Ariz. App. 358, 367, 409 P.2d 74, 83 (1965); William L. Prosser and W. Page Keeton, The

Law of Torts § 32, at 191 5th ed. (1984); see also Hales, 118 Ariz. at 311, 576 P.2d at 499;

McGrady v. Wright, 151 Ariz. 534, 537, 729 P.2d 338, 341 (App. 1986); Gurr v. Willcutt,

146 Ariz. 575, 581, 707 P.2d 979, 985 (App. 1985). Expert testimony is not required for the

first type of causation because it is plainly a matter to which plaintiffs themselves could

testify and is within the knowledge of the average layperson. See generally Adams v. Amore,

182 Ariz. 253, 895 P.2d 1016 (App. 1994) (function of expert witness is to provide testimony




                                              10
on subjects beyond common sense, experience, or education of average person, and expert

testimony is inappropriate if jury can determine issue without such testimony).

¶16           Expert testimony is required, however, to demonstrate that the treatment

proximately caused injury to the plaintiff. Gregg v. Nat’l Med. Health Care Servs., Inc., 145

Ariz. 51, 54, 699 P.2d 925, 928 (App. 1985) (generally, expert medical testimony is required

to establish proximate cause). Such testimony helps to ensure that the plaintiff’s alleged

injury was not caused by the progression of a pre-existing condition or was the result of some

other cause, such as natural aging or a subsequent injury. This, again, is in keeping with the

legislature’s intent to curtail frivolous medical malpractice claims. See 2004 Ariz. Sess.

Laws, ch. 4, § 2. Thus, Gorney’s expert opinion affidavit should have stated that the surgery

proximately caused an injury to Gorney, e.g., the “worsen[ed]” condition in Gorney’s knee.5

Because it did not, the trial court properly found the requirements of § 12-2603(B)(4) were

not met.

                                Lack of Statement of Facts

¶17           Gorney lastly argues the trial court should have either struck or denied

Meaney’s motion for summary judgment because it did not include a statement of facts, as



       5
         We note that Meaney attached to his answering brief an affidavit by Dr. Gettel that
states “the removal of the meniscus in [Gorney’s] knee caused him to have degenerative
arthritis and medial collapse.” Both parties refer to this affidavit in their briefs, and the
affidavit would seemingly satisfy the “causation” provision of A.R.S. § 12-2603. The above-
quoted language, however, is not part of the affidavit that is in the record on appeal. Thus,
that language cannot be considered. See Crook v. Anderson, 115 Ariz. 402, 403-04, 565 P.2d
908, 909-10 (App. 1977) (on appeal from summary judgment, parties cannot produce new
affidavits to secure reversal of lower court’s determination).

                                             11
required by Rule 56(c)(2), Ariz. R. Civ. P., 16 A.R.S., Pt. 2. Generally, summary judgment

is proper “if the pleadings, deposition[s], answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material

fact.” Ariz. R. Civ. P. 56(c)(1). Summary judgment is also appropriate when a plaintiff fails

to establish a prima facie case. Hydroculture, Inc. v. Coopers & Lybrand, 174 Ariz. 277,

283, 848 P.2d 856, 862 (App. 1992).

¶18           Rule 56(c)(2) states that “[a]ny party filing a motion for summary judgment

shall set forth, separately from the memorandum of law, the specific facts relied upon in

support of the motion.” Gorney argues he was disadvantaged in his ability to show the

existence of genuine issues of material fact because Meaney failed to comply with this rule.

Meaney does not deny that his motion lacked a statement of facts, but argues that one was

not required in this case and nothing in Rule 56 indicates that failure to provide one is a

ground for denial of a motion.

¶19           We agree that a trial court need not deny a motion for summary judgment for

the sole reason it is not supported by a statement of facts. Although a statement of facts is

especially useful when a court must sort through myriad factual contentions, it may be less

so when a defendant seeks summary judgment on the ground the plaintiff has failed to

comply with statutory requirements or establish a prima facie case, as was the case here.

¶20           Gorney certified that expert testimony was required to support his claim;

therefore, he was required to provide such testimony to establish a prima facie case. See

Gregg, 145 Ariz. at 54, 699 P.2d at 928 (ordinarily, expert medical testimony required to


                                              12
make prima facie case of medical malpractice). Summary judgment was appropriate when

Gorney failed to provide an adequate expert opinion affidavit. See Hydroculture, Inc., 174

Ariz. at 283, 848 P.2d at 862 (defendant may obtain summary judgment when plaintiff

unprepared to establish prima facie case). Accordingly, we do not find the trial court erred

in granting Meaney’s motion for summary judgment, even in the absence of a statement of

facts. See McGuire v. DeFrancesco, 168 Ariz. 88, 90, 811 P.2d 340, 342 (App. 1990) (in

response to motion for summary judgment, medical malpractice plaintiff must show expert

testimony available to establish health care provider’s treatment fell below applicable

standard of care).

                                       Disposition

¶21           For all the foregoing reasons, the judgment in favor of Meaney is affirmed.




                                              PHILIP G. ESPINOSA, Judge

CONCURRING:




PETER J. ECKERSTROM, Presiding Judge




J. WILLIAM BRAMMER, JR., Judge




                                            13
