(1) Clayton v. Hon. Kenworthy et al.

This month, the Arizona Court of Appeals issued its opinion in Clayton v. Hon. Kenworthy et al., regarding an unrecorded Rule 35, Ariz. R. Civ. P. neuropsychological examination.


In Clayton, the mother of a six-year-old child who suffers from bilateral hearing loss and cerebral palsy, among other disabilities, sued her son’s doctors and hospital for medical malpractice on her son’s behalf for negligently delivering him and causing his disabilities. The defendants requested a Rule 35 neuropsychological examination of the child to determine his current and future cognitive abilities. Mother agreed to the examination on the condition that she be present to observe the examination through one-way glass or have the examination video-recorded through a small recording device. The defendants objected to any form of observation or recording on the basis that any presence (physical or electronic) of a third party—e.g. the mother—would interfere with the examination. Opinion, at ¶¶ 3-4. The trial court agreed with defendants and denied plaintiff’s request to have mother observe the examination or record it. Plaintiffs sought special action relief.

Before the Court of Appeals

In the special action briefing, Mother did not argue that she should have been permitted to observe the examination behind one-way glass (and the Court of Appeals noted that it could not have found the trial court abused its discretion on this issue because it heard evidence supporting its ruling). However, she did argue that the trial court abused its discretion by completely prohibiting the recording of the examination. The Court of Appeals agreed. Opinion, at ¶¶ 10-11.

The Court of Appeals reasoned:

“The first part of Rule 35(c)(2)(A) gives the examinee the right to have the examination recorded. The second part then grants the court the power to “limit” the recording “using the least restrictive means possible[,]” not to prohibit it. Had the drafters intended the court’s power to be absolute, they would have expressly said so. As such, the authority to “limit” the recording does not empower the court to prohibit recording completely. The trial court thus erred in ordering [the child] to undergo an unrecorded examination.” Opinion, at ¶ 11.


In short, the takeaway is that when a neuropsychological examination is conducted at the request of the opposing party, Rule 35 “unambiguously creates a right for the examinee to have his or her examination recorded.” Opinion, at ¶ 12.

You can read the opinion in full here: https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/SA%2020-0086%20Clayton%20v.%20Hon.%20Kenworthy.pdf

(2) Administrative Order No. 2020-152 (Replacing Administrative Orders No. 2020-66 and 2020-118)

Short Story

Due to COVID-19 concerns, fiduciaries serving as guardians or agents under powers of attorney who are obligated to visit their wards pursuant to ACJA §§ 3-303(D)(3)(c) and 7-202(J)(4) may comply with those visitation requirements via (in descending order of preference) live video conferencing; telephone calls; interviews with third party experts such as medical providers; or interviews with care providers. If any other method is used to fulfill the visitation requirements, the licensed fiduciary must fully document why such visitation method was used and how it was accomplished.

The Details

On September 24th, Arizona Supreme Court Chief Justice Robert Brutinel issued Administrative Order No. 2020-152 regarding licensed fiduciaries’ obligations to visit wards in the midst of COVID-19. Pursuant to ACJA §§ 3-303(D)(3)(c) and 7-202(J)(4), a licensed fiduciary serving as a guardian or agent under a power of attorney must make periodic visits to the ward. Because COVID-19 has created situations in which licensed fiduciaries cannot or for health reasons should not comply with the visitation requirements, the Court recognized the necessity of granting immediate authority for licensed fiduciaries to comply with visitation requirements as follows:

  • Whenever possible the licensed fiduciary must comply with the visitation requirement presently set forth in ACJA §§ 3-303(D)(3)(c) and 7-202(J)(4). Upon good cause, the licensed fiduciary may use an alternative means of visitation in descending order of preference:
    • Live video conferencing
    • Telephone calls
    • Interviews with third party experts such as medical providers; or
    • Interviews with care providers.
  • If a method other than the visitation requirements presently set forth in ACJA §§ 3-303(D)(3)(c) and 7-202(J)(4) is utilized, the licensed fiduciary must fully document:
    • The steps taken to comply with ACJA §§ 3-303(D)(3)(c) and 7-202(J)(4)
    • The reasons the present code could not be complied with, and
    • The appropriateness of the alternative method of visitation.

The order expires on December 31, 2020.

You can read the administrative order in full here:


About the Authors:

Erica A. Erman, Associate, is a behavioral health care attorney in the Phoenix office and can be reached at 602-889-5342, eerman@dickinson-wright.com and her biography is available here.

Russell A. Kolsrud, Member, is a behavioral health care attorney in the Phoenix office and can be reached at 602-285-5054, rkolsrud@dickinson-wright.com and his biography is available here.

The post September 2020 Arizona Behavioral Health Legal Updates appeared first on DW Behavioral Health Care Law Blog.