Treating Physicians Don’t Count in Arizona “One-Expert Rule”

Treating physicians who testify in medical malpractice cases do not count as experts under Arizona's so-called “One-Expert Rule”, the state Supreme Court has ruled, much to the satisfaction of the Arizona Medical Association.

In McDaniel v. Payson Healthcare Management, Inc. et al. (Ariz. CV-20-0333-PR, July 8, 2022), the plaintiff claimed that Payson Healthcare (PHM) and 4C Medical Group (4CMG) breached the standard of care in treating Dallas Haught for a cut on his knee in a dirt-bike accident.

Haught went to Payson Regional where Dr. Michael Darnell, an orthopedic surgeon, provided initial treatment. The next day Haught's knee injury worsened and he returned to Payson Regional, and then again on the day after. At that stage, Dr. Darnell ordered a series of tests, including one to measure Haught's “C-Reactive Protein (CRP) level, a marker for infection that measures inflammation.” Dr. Darnell incorrectly recorded the CRP test result a 45mg/dl instead of 138.79 mg/dl.

With Haught's condition worsening, Dr. Darnell had him transferred to Scottsdale Shea Medical center where Dr. Amar Parkash Sharma, an owner of 4CMG and a hospitalist, prepared an initial report that omitted the CRP result. Eventually, Drs. Burge, Cory, Friedman and Schaub participated in treating his injury. None of them ordered another CRP test.

Haught developed necrotizing fasciitis (flesh-eating disease), requiring the removal of all of the skin on his right leg, leaving him with permanent injuries and disfigurement.

At trial, Drs. Berge, Cory, Friedman, and Schaub testified for defendants PHM and 4CMG as treating physicians. Haught argued throughout the trial that the physicians were acting as expert witnesses when the defense asked them hypothetical questions not directly related to Haught's treatment. As the treating physicians testified to the same issues as the defendants' retained expert, they presented more experts than allowed.

The jury returned a verdict for the defendants and the trial court entered judgment on their behalf. Haught moved for a new trial, which the court denied. Haught appealed.

The court of appeals held that the treating physicians' testimony addressing the CRP test was expert testimony. In particular, the court found that “PHM clearly sought expert opinion testimony concerning CRP” from Dr. David Friedman, finding that he acted as an infectious disease expert witness. The court concluded that the One-Expert Rule had been violated, reversing the trial court and remanding for a new trial.

The state supreme court granted review to address whether the court of appeals erred in using a de novo standard of review concerning the One-Expert Rule. The trial court found the treating physicians testified to the facts related to their treatment of Haught, and any specific testimony concerning the CRP test was related to that fact testimony. The state Supreme Court agreed.

Haught warned that permitting treating physicians to testify as in this case would permit malpractice defendants to overwhelm jurors with a “deluge” of expert opinions, allowing the defense to argue — as it did here — that thirteen doctors testified that the standard of care was met as compared to just the one plaintiff expert.

Haught, the state supreme court wrote, “… misapprehends the primary purpose of the One-Expert Rule, which is to limit the cost of the presentation of multiple retained experts.”

At the outset of this case, the Arizona Medical Association (ArMA) publicly urged the court to “… make clear that treating physicians are not ‘retained or specially employed experts.'” The Association should clearly be pleased.