IN THE



## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

DAVID ROMERO
, Plaintiff/Appellant
,

v.

KHALID S. HASAN, et al.
, Defendant s /Appellee s

.
No. 1 CA

- CV 15

- 0508

Appeal from the Superior Court in Maricopa County

No. CV 2014

- 095832 The Honorable Mark F. Aceto, Judge (Retired)

AFFIRMED

COUNSEL

David Romero
, Queen Creek Plaintiff/Appellant Pro Per

Holden & Armer PC, Tempe By Scott A. Holden , Carolyn Armer Holden C ounsel for Defendant s

/Appellee sROMERO v. HASAN Opinion of the Court

2 OPINION
Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Charles W . Gurtler , Jr. joined. 1

T H O M P S O N , Judge:

¶1 David Romero appeals the dismissal of his medical malpractice claim against Khalid S. Hasan, M.D.
, for failure to file a preliminary expert affidavit as required under Arizona Revised Statut es (A.R.S.) § 12

- 2603 ( 2016 )

. 2 For the following reasons, we affirm.

FACT UAL AN D PROCEDURAL HISTORY

¶2 In October 2014, Romero filed a complaint alleging Hasan negligently p rescribed an incorrect dosage of synthroid in October 2012.

¶3 In December 2014, Romero certified pursuant to A.R.S. § 12

- 2603 that expert testimony was not necessary to prove the proper standard of care or breach . Hasan disputed that certification and moved to dismiss Romero’s claim for failure to comply with A.R.S. § 12

- 2603. Romero responded that his claim did not require expert testimony , but requested additional time to comply with the statute’s requirement to provide a preliminary expert affidavit if the superior court concluded to the contrary

. Finding Romero’s claim required expert testimony , the superior court ordered him to provide a preliminary expert opinion affidavit within nine weeks

. ¶4 Three days before the court

- ordered deadline, Romero requested the superior court set a hearing so his treating physicians could “establish the requirements under A.R.S. § 12

- 2603.” Romero admitted he was unable to obtain the affidavits required by A.R.S. § 12

- 2603. The

1 The Honorable Charles W. Gurtler, Jr., Judge of the Arizona Superior Court, has been authorized to sit in this matt er pursuant to Article 6 , Section 3 of the Arizona Constitution.

2 We cite the current version of applicable statutes unless revisions material to this decision have occurred since the events in question

.ROMERO v. HASAN Opinion of the Court

3 superior court denied Romero’s request for a hearing and dismissed Romero’s claim without prejudice.

¶5 Romero points out that Arizona has a savings statute

— A.R.S. § 1 2

- 504(A)

— that would have permitted him to refile his action; however, no issue regarding A.R.S. § 12

- 504(A) is presently before us. We have jurisdiction. See A.R.S. §§ 12

- 2101(A)(3) (2016) (appellate jurisdiction),

- 120.21(A)(4) (2016) (special actions j urisdiction).

DISCUSSION

¶6 On appeal, Romero argues the superior court erred in rejecting his request for his treating physicians to testify at a hearing in lieu of him serving a preliminary affidavit as required by A.R.S § 12

- 2603. 3 We review de novo the superior court’s order granting a motion to dismiss

. Coleman v. City of Mesa , 230 Ariz. 352, 35 5

- 5 6, ¶ 7, 284 P.3d 863 , 86 6

- 6 7 (2012).

¶7 In medical malpractice actions, A.R.S. § 12

- 2603(A) requires a claimant to certify at the time the claim is filed whether expert opinion testimony is necessary to prove the health care professional’s standard of

care or breach

. If the claimant certifies expert testimony is not required, the health care professional may dispute that certification and apply for an orde r requiring the claimant to serve a preliminary expert opinion affidavit. A.R.S. § 12

- 2603(D). If the court determines compliance is necessary, the court shall set a compliance deadline. A.R.S. § 12

- 2603(E). The court “shall dismiss the claim against t he health care professional . . . without prejudice if the claimant . . . fails to file and serve a preliminary expert opinion affidavit after . . . the court has ordered the claimant . . . to file and serve an affidavit.” A.R.S. § 12

- 2603(F).

¶8 A statute’s language is “the most rel iable evidence of its intent.” McMurray v. Dream Catcher USA, Inc ., 220 Ariz. 71, 75, ¶ 8, 202 P.3d 536, 540 (App. 2009) ( quoting Walker v. City of Scottsdale , 163 Ariz. 206, 20 9, 786 P.2d 1057, 1060 (App. 1989) ) . If statutory l anguage is “clear and unambiguous,” we give effect to legislative intent by applying the language based “on t he assumption that the legislature meant what it said.” Melendez v. Hallmark Ins. Co ., 232 Ariz. 327, 33 0 , ¶ 10, 30 5 P.3d 392, 395 (App. 2013)

. ¶9 The legislature direct ed the affidavit required by A.R.S. § 12

- 2603 to “certify that the action against the medical professional is not

3 We deny as moot Romero’s request to strike Hasan’s statement of facts.ROMERO v. HASAN Opinion of the Court

4 meritless.” Jilly v. Rayes , 221 Ariz. 40, 4 3 , ¶ 6 , 209 P.3d 176, 17 9 (App. 2009)

. A.R.S. § 12

- 2603(F) clearly and unamb iguously mandates the superior court dismiss without prejudice a claim when the claimant fails to comply with the court’s order to file and serve a preliminary expert opinion affidavit

. A.R.S. § 12

- 2603 does not provide for a hearing in lieu of serving th e requisite affidavit. Here, because the superior court ordered Romero to provide the requisite affidavit by a date certain
, it did not err by dismissing Romero’s claims without prejudice for failure to comply with A.R.S. § 12

- 2603. 4

CONCLUSION

¶10 W e affirm and award Hasan costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.

4 We do not address Romero’s argument that A.R.S. § 12

- 2603 unconstitutionally violates his right of access to the courts. Because Romero failed to raise this argument before the superior court, h e has waived it on appeal. Romero v. S w. Ambulance , 211 Ariz. 200, 204, ¶ 7, 119 P.3d 467, 471 (App. 2005)

. In any event, to the extent Romero argues he cannot afford the expense of hiring an expert witness to make an affidavit, he offers no evidence tha t any of the treating physicians he intended to call at the requested hearing would have been willing to provide the information required by § 12

- 2603(B).