Francisco v. Affiliated Urologists Ltd

Full title: DAVID FRANCISCO, et al., Plaintiffs/Appellants, v. AFFILIATED UROLOGISTS…

Court: Court of Appeals of Arizona, First Division

Case no: CA-CV 21-0701

Date published: May 23, 2023



David Francisco and his wife, Kimberley Francisco, filed a medical negligence claim against Dr. Kevin Art and Affiliated Urologists, Ltd. (referred to as “the Practice”). They alleged that Dr. Art failed to adequately inform David about the risks associated with taking the medication Cipro, which Dr. Art prescribed after a urological procedure. The Franciscos claimed that David suffered permanent pain and injury as a result of a reaction to Cipro. Despite their assertion that expert witness testimony was unnecessary, the court granted the Practice’s motion to compel a preliminary expert opinion affidavit. Subsequently, the court dismissed the case with prejudice based on non-compliance with Arizona Revised Statutes (“A.R.S.”) section 12-2603.


We review an order requiring a preliminary expert opinion affidavit under A.R.S. § 12-2603 for abuse of discretion. See Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 128, ¶ 14 (App. 2008) (reasoning that the abuse of discretion standard should apply to the superior court’s decision whether expert testimony is required under A.R.S. § 12-2602, the companion statute to A.R.S. § 12-2603, because the determination at trial of areas of expert testimony is discretionary).


The court reversed the decision of the superior court and remanded the case for further proceedings. It held that expert testimony was not necessarily required to prove the lack of informed consent claim. The court reasoned that while medical custom is often important in establishing the standard of care, it is not determinative in all cases. In this instance, where the FDA provided specific warnings about the medication in question (Cipro) and directed physicians to inform patients accordingly, specialized medical knowledge was not essential to evaluate whether the failure to warn constituted negligence. Therefore, the Franciscos should be allowed to present evidence regarding the FDA warnings without the need for expert testimony on medical custom. The court concluded that the absence of such testimony did not warrant dismissal of the case under A.R.S. section 12-2603.

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