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Alicia Gallegos


January 28, 2022

Court: Patient Must Pay Doc's Legal Expenses

A patient must pay a physician about $20,000 in legal expenses after the patient's malpractice suit was thrown out, an Arizona appeals court has ruled.

Scottsdale plastic surgeon Corwin Martin, MD, performed dental implant surgery on Penny Preszler in February 2012. Following the surgery, Preszler claimed numbness in her face and mouth, according to the appellate decision. She sued Martin and his practice for malpractice in 2015.

As the case continued, Preszler withdrew her first expert and disclosed a new expert. When Preszler's second standard of care expert withdrew, Preszler was given 30 days to disclose a new expert. When she failed to do so, Martin asked the court to dismiss the suit based on Preszler's failure to disclose a proper standard of care expert.

She eventually presented a third expert, but Martin's attorneys argued that the doctor was not a qualified expert under state law because he was board certified in periodontia, while Martin is board certified in oral and maxillofacial surgery. By this time, the case had gone on for 4 years.

When Preszler couldn't come up with a fourth expert who was qualified, the court dismissed the case. The judge also awarded Martin $19,279.05 for expenses incurred in discovery related to Preszler's first expert, attorneys' fees, and expenses.

Preszler appealed, arguing that the periodontist was qualified to testify against Martin because he performed dental implant surgeries in the past without the board certification Martin obtained. In its January 20, 2022, decision, a panel of the Arizona Court of Appeals upheld the decision, ruling that the expert was not qualified to opine. The patient must also pay the physician's legal expenses as ordered by the lower court.

"Preszler has not shown the superior court abused its discretion in the award issued," appellate judges wrote. "Three years after Preszler disclosed her first expert witness, that expert withdrew. Martin claimed substantial expenses relating to discovery addressing Preszler's first expert, which were no longer beneficial given his withdrawal … , Preszler has not shown that the expenses awarded to Martin were unreasonable or disproportionate to the time and costs expended regarding the withdrawn expert."


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