STEPHAN v. BERTZ

── STEPHAN v. BERTZ ── Case No.: 1 CA-CV 25-0323 Court: Court of Appeals of Arizona Date: March 23, 2026 Category: General NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE MARTINE STEPHAN , Plaintiff/Appellant, v. JAMES E. BERTZ, et al., Defendants/Appellees. No. 1 CA-CV 25-0323 FILED 03-23-2026 Appeal from the Superior Court in Maricopa County No. CV2023-006960 The Honorable Michael J. Herrod, Judge VACATED IN PART AND REMANDED COUNSEL Law Office of Craig Stephan, Scottsdale By Craig A. Stephan Counsel for Plaintiff/Appellant Smith Law Group, Tucson By Kathleen L. Leary, Christopher J. Smith Counsel for Defendants/Appellees  STEPHAN v. BERTZ, et al. Decision of the Court MEMORANDUM DECISION Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which Judge D. Steven Williams and Judge Cynthia J. Bailey joined. K I L E Y, Judge: ¶1 Martine Stephan appeals the denial of leave to amend, and the subsequent dismissal of, her complaint. Because her proposed amended complaint stated potentially viable claims for relief, we vacate the denial of leave to amend, reject her challenge to the dismissal of the original complaint as moot, and remand for further proceedings. FACTS AND PROCEDURAL HISTORY ¶2 Stephan has alleged the following facts, which we take as true. See MacCollum v. Perkinson, 185 Ariz. 179, 185 (App. 1996). ¶3 An oral surgeon performed a maxillofacial surgical procedure on Stephan in 2000. A few weeks later, Stephan developed an infection that resulted in a “foul taste” in her mouth and “drainage” running “down [her] throat[,]” causing stomach discomfort and nausea. ¶4 The following year, Stephan began seeing James E. Bertz, M.D., D.D.S., at Scottsdale Facial and Oral Surgery, LLC (“SFOS”). Bertz treated Stephan for more than fifteen years in an unsuccessful effort to identify the cause of the “foul taste and drainage” she continued to experience. ¶5 While at home one day in late December 2015, Stephan began experiencing “throbbing” in the lower left side of her mouth. Sensing that “something was stuck there[,]” she used the sharp end of a plastic floss pick to “prob[e]” into her gums, causing a metal “wire” to “pop[] out.” She pulled the wire out of her mouth. She brought it to her next appointment with Bertz, which was a week or two later. Her discussion with Bertz led her to conclude that it was an “anchor wire” that had been used in the surgical procedure she underwent in 2000 and was inadvertently “left behind.” Stephan left the wire in Bertz’s possession. ¶6 In 2017, Stephan filed a medical negligence claim against Oral & Facial Surgery Center, PLC and the surgeon who performed the 2  STEPHAN v. BERTZ, et al. Decision of the Court maxillofacial procedure, alleging, inter alia, that they breached the standard of care “by leaving behind a foreign object in [her] body.” Those claims were eventually dismissed. In the interim, however, Stephan amended her complaint to add a medical negligence claim against Bertz and SFOS, alleging, inter alia, that they breached the standard of care by failing to identify the cause of her gum infection or detect the presence of a foreign object in her gums. ¶7 Bertz and SFOS moved to dismiss the medical negligence claim because Stephan failed to serve a preliminary expert opinion affidavit (“PEOA”). See A.R.S. § 12-2603(