NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT 

PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

SYLVIA CARAVETTA, Plaintiff/Appellant,

v.

BANNER HEALTH, dba BANNER THUNDERBIRD MEDICAL CENTER, 

Defendant/Appellee.

No. 1 CA-CV 16-0101

Appeal from the Superior Court in Maricopa County

No. CV2015-050030

The Honorable Aimee L. Anderson, Judge

AFFIRMED

COUNSEL

Sylvia Caravetta, Delray Beach, FL

Plaintiff/Appellant

Campbell, Yost, Clare & Norell, P.C., Phoenix

By Sigurds M. Krolls, Margaret F. Dean

Counsel for Defendant/Appellee
CARAVETTA v. BANNER

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in 

which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.

J O N E S, Judge:

¶1 Sylvia Caravetta appeals from an order dismissing her case 

for failure to serve a preliminary expert opinion affidavit pursuant to

Arizona Revised Statutes (A.R.S.) section 12-2603.

1 For the following 

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In January 2015, Caravetta filed a claim against Banner Health

alleging she was “deliberately harmed” when a nurse “stabbed” her with a 

medication-filled syringe during a January 2013 hospital admission. 

According to the complaint, the medication immediately dripped out of her 

hip and a “large bleeding black bruise” developed. Caravetta reported the 

incident to a supervisor, who purportedly failed to treat the resulting 

injuries, order re-administration of the medication, or prevent the nurse 

from “stabbing” her a second time. She also alleged the treating physician

likewise failed to treat her injuries and, instead, discharged her.2 

 

1 Absent material changes from the relevant date, we cite a statute’s 

current version.

2 Caravetta later amended her complaint to add a claim for violation

of the Adult Protective Services Act (APSA), see A.R.S. §§ 46-451 to -459, 

based upon Banner Health’s failure to photograph the alleged injuries. 

Although an amended complaint typically supersedes the original, Francini 

v. Phx. Newspapers, Inc., 188 Ariz. 576, 586 (App. 1996) (citing Campbell v. 

Deddens, 21 Ariz. App. 295, 297 (1974)), the entire case proceeded on the 

issue of whether Caravetta pleaded a medical malpractice or an intentional 

tort claim within her original complaint. Moreover, Caravetta failed to state 

a claim for violation of APSA on the asserted grounds because neither 

A.R.S. § 46-453 — governing the immunity of a person making an APSA 

complaint and non-privileged communications with a clergyman or priest
CARAVETTA v. BANNER

Decision of the Court

3

¶3 Banner Health moved for an order designating the case as one 

for medical malpractice and requiring service of a preliminary expert 

opinion affidavit. See A.R.S. § 12-2603(A), (D). Caravetta disputed that her 

case was one for medical malpractice, arguing instead the complaint 

presented “an assault and ongoing harm and neglect case.” After oral 

argument, the superior court determined the action was subject to A.R.S. 

§ 12-2603 and ordered Caravetta to serve a preliminary expert opinion 

affidavit by December 7, 2015. The court warned that if Caravetta failed to 

comply, it would dismiss the action. 

¶4 Caravetta failed to provide the requisite affidavit, and, upon 

Banner Health’s motion, the superior court dismissed Caravetta’s claim 

without prejudice. We have jurisdiction over Caravetta’s timely appeal 

pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(3). See Garza v. Swift 

Transp. Co., 222 Ariz. 281, 284, ¶ 15 (2009) (holding a dismissal without 

prejudice entered after the statute of limitations has run is a final, 

appealable order when it “in effect determines the action”) (citations 

omitted), superseded by statute on other grounds as stated in Brumett v. MGA 

Home Healthcare, L.L.C., 240 Ariz. 420, 431, ¶ 22 (App. 2016); see also Romero 

v. Hasan, 241 Ariz. 385, 386, ¶¶ 4-5 (App. 2017).

DISCUSSION

¶5 Caravetta violates appellate court rules by failing to set forth

relevant facts, identify discernible issues, develop arguments, and cite 

authorities or relevant parts of the record within her briefs. See ARCAP 

13(a)(5)-(7). We have attempted to discern Caravetta’s arguments as best

we can and consider only adequately supported arguments. See In re 

Aubuchon, 233 Ariz. 62, 64-65, ¶ 6 (2013). Arguments unsupported by law 

and fact are waived. Id.; see also Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 

(App. 2009) (holding that failure to support arguments with legal authority 

may constitute waiver and abandonment of that claim) (citing State v. 

Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004)).

¶6 Caravetta states she filed her lawsuit “to be compensated for 

being assaulted by a nurse who stabbed [her] with a needle after giving 

[her] a strange creepy mean look” and the case is not about “the 

 

— nor A.R.S. § 46-454(G) — granting a person who receives a report of adult 

abuse the discretionary authority to take photographs — give rise to a 

private cause of action such as that asserted by Caravetta here. 

Accordingly, we elect to address those claims pleaded in the original 

complaint.
CARAVETTA v. BANNER

Decision of the Court

4

misadministration of medication or medical services.” To the extent 

Caravetta challenges the superior court’s determination that this is a 

medical malpractice action and compliance with A.R.S. § 12-2603 was

necessary, we review de novo the interpretation and application of A.R.S. 

§ 12-2603. See Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 319, ¶ 5 

(App. 2008) (citing Energy Squared, Inc. v. Ariz. Dep’t of Revenue, 203 Ariz. 

507, 509, ¶ 15 (App. 2002)). We accept the facts alleged in the complaint as 

true and view those facts in the light most favorable to Caravetta. Id. at ¶ 2

(citing Johnson v. McDonald, 197 Ariz. 155, 157, ¶ 2 (App. 1999)).

¶7 A medical malpractice action is one “for injury or death 

against a licensed health care provider based upon such provider’s alleged 

negligence, misconduct, errors or omissions, or breach of contract in the 

rendering of health care, medical services, nursing services or other healthrelated services, without express or implied consent.” A.R.S. § 12-561(2). 

“[I]n 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,” 

Gorney v. Meaney, 214 Ariz. 226, 228 n.1, ¶ 2 (App. 2007) (citation omitted),

and negligence claims that are governed by the Medical Malpractice Act 

(MMA), see Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 309-10, 

313, ¶¶ 11, 27 (2003) (citing A.R.S. § 12-562(B)). The failure to obtain the 

patient’s consent “is the fulcrum on which a medical battery claim . . . 

turns.” Carter v. Pain Ctr. of Ariz., P.C., ___ Ariz. ___, ___, ¶ 10, 2016 WL 

8253002, at *3 (App. May 10, 2016) (citing Duncan, 205 Ariz. at 311, ¶ 18). 

¶8 Even reading the allegations of the complaint in the light most 

favorable to Caravetta, it is apparent that she consented to the medical 

procedure of which she now complains — the administration of 

medication. Even after the first shot, which she alleges caused a “large 

bleeding black bruise,” Caravetta allowed the same nurse to “stab” her a 

second time to administer additional medication. Caravetta has not stated 

a claim for the intentional tort of battery. See State v. Holle, 240 Ariz. 300, 

309, ¶ 43 (2016) (acknowledging consent as a defense to an assault 

committed by a health care provider) (citations omitted). Her use of the 

term “battery” is not determinative. See Gorney, 214 Ariz. at 228 n.1, ¶ 2 

(“Although the first count of [plaintiff’s] complaint is entitled ‘Battery,’ . . . 

[plaintiff’s] allegations amount to ‘lack of informed consent,’ were treated 

as such below, and will be so treated on appeal.’”). 

¶9 Instead, the complaint establishes that Caravetta is unhappy 

with the manner in which the nursing services were provided. A healthcare 

provider’s misconduct in the course of rendering nursing services falls 
CARAVETTA v. BANNER

Decision of the Court

5

squarely within the purview of the MMA. See A.R.S. § 12-2601(1)(b) 

(defining an MMA claim as one “based on the licensed professional’s 

alleged . . . negligence, misconduct, errors or omissions in rendering 

professional services”). And, because Caravetta did not comply with the 

requirement she obtain and disclose a preliminary expert opinion affidavit 

establishing the standard of care and liability of the health care professional, 

the superior court properly dismissed her case. See A.R.S. § 12-2603(F) 

(“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.”).

CONCLUSION

¶10 The order dismissing the complaint without prejudice is 

affirmed.