NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENT IAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

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. CV 2015

- 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 C ounsel for Defendant/AppelleeCARAVETTA 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

.

FACT S AN D PROCEDURAL HISTORY

¶2 In January 2015, Caravetta filed a claim against Banner Health alleging she was “deliberat ely 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 o f her hip and a “ large bleeding black bruise ” developed

. Caravetta report ed the incident to a supervisor, who purportedly failed to treat the resulting injuries, order re

- administration of the medication, or prev ent 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 su persedes 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 intentiona l 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

— govern ing the immunity of a pers on making an APSA complaint and non

- privileged communic ations with a clergyman or priestCARAVETTA 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
, arg uing instead the complaint presented “an assault and ongoing harm and neglect case.” After oral argument, t he superior court determined the action was subject to A.R.S. § 12

- 2603 and ordered Caravetta to serve a preliminary expert opin ion affidavit by December 7, 2015. The court warned that if Caravetta failed to comply, it would dismiss the action.

¶4 Caravetta fail ed to provide the requisite affidavit
, and, upon Banner Health’s motion, t he 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 adeq uately 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 w ho 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 t ake photographs

— give rise to a private cause of action such as that asserted by Caravetta here. According ly, 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 wa s necessary, w e 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 Rev enue , 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 (Ap p. 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 health

related 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 intentiona l 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 M edical M alpractice A ct (MMA)
, s ee 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
pro cedure 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 “bat tery” 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 fallsCARAVETTA v. BANNER Decision of the Court

5 squarely within the pu rview 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 th e 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 d ismiss 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. ”).

CONC LUSION

¶10 The order dismissing the complaint without prejudice is affirmed

.