IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

DAVID ROMERO, Plaintiff/Appellant,

v.

KHALID S. HASAN, et al., Defendants/Appellees.

No. 1 CA-CV 15-0508

Appeal from the Superior Court in Maricopa County

No. CV2014-095832

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

Counsel for Defendants/Appellees
ROMERO 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 Statutes 

(A.R.S.) § 12-2603 (2016).

2 For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In October 2014, Romero filed a complaint alleging Hasan 

negligently prescribed 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 matter 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. 

§ 12-504(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 jurisdiction). 

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, 355-56, ¶ 7, 284 P.3d 863, 866-67 (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 

order 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 the 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 reliable 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, 209, 

786 P.2d 1057, 1060 (App. 1989)). If statutory language is “clear and 

unambiguous,” we give effect to legislative intent by applying the language 

based “on the assumption that the legislature meant what it said.” Melendez 

v. Hallmark Ins. Co., 232 Ariz. 327, 330, ¶ 10, 305 P.3d 392, 395 (App. 2013). 

¶9 The legislature directed 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, 43, ¶ 6, 209 P.3d 176, 179 (App. 2009).

A.R.S. § 12-2603(F) clearly and unambiguously 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 the 

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 We 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, he has waived it on 

appeal. Romero v. Sw. 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 that 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).