On July 10, Arizona Governor Jan Brewer signed a medical malpractice reform bill into law that makes it more difficult for patients to bring medical malpractice claims against ER doctors, on-call medical specialists and others involved in providing emergency medical treatment.  Senate Bill 1018 became effective on September 30, 2009.

Senate Bill 1018 added a new section to the Arizona Statutes, A.R.S. §12-572 "Burden of Proof for Treatment in Emergency Departments or Rendered by On-Call Providers."  Under §12-572, an emergency room doctor, on-call medical specialist, hospital or hospital employee can be held liable for medical negligence in connection with providing emergency treatment only when the patient (plaintiff) presents "clear and convincing" evidence that the medical care provider committed malpractice.  Clear and convincing evidence is the highest legal standard (burden) of proof applied in civil cases.

Prior to the changes in the law, plaintiffs only had to prove their claims by a "preponderance" of the evidence, meaning evidence which demonstrated that it was more likely than not that the healthcare provider's acts or omissions violated the accepted standard of medical care and caused the patient's injury.  This is a much less onerous burden of proof for plaintiffs.

This was the Arizona Legislature's third attempt at passing legislation aimed at increasing the plaintiff's burden of proof in medical malpractice claims as a result of negligent emergency medical treatment.  In 2006, the legislation was approved by the Legislature, but vetoed by then Governor Janet Napalitano.  In 2007, the legislation did not make it out of the House which rejected it by a slim vote.

Arguments in Favor of the Legislation Fall Short

Those favoring the legislation assert that it is necessary to encourage doctors and other medical specialists to take calls and service emergency room patients. They argue that Arizona is suffering from inadequate emergency care and that the cost of medical malpractice insurance premiums, combined with the threat of lawsuits, deters many physicians and medical specialists from working in Arizona.

Earlier this year, the Governor created a task force - the Emergency Medical Services Access Task Force - to brainstorm ways the state could reduce or eliminate the shortage of doctors providing emergency care.  Among other things, the Task Force recommended medical malpractice reform, including increasing the standard of proof to the clear-and-convincing-evidence standard.

It is important to note, however, that 5 of the 18 members of the task force believed that changing the standard of proof in medical malpractice actions against emergency care providers was not in the best interests of patients.

In their report, these 5 minority task force members expressed concerns that the majority had not based their proposal on reliable, supportable data.  They asserted that changing the burden of proof will have a chilling effect on patients and make it difficult for them to bring and win legitimate medical malpractice claims.  Lastly, the minority members argued that this move by the state government will grant "favored status" to doctors who provide emergency care as well as those that provide other types of medical care.

As a result of this "favored status," patients will, of course, be faced with increased difficulty in succeeding in medical malpractice actions against any emergency care providers in an already defense-oriented legal system.  Perhaps equally or even more important, however, patients will first be presented with extreme difficulty as a result of the new complexity added by this latest legislation to even evaluating and asserting a medical malpractice claim against emergency care providers.  Thus, many patients with legitimate medical malpractice claims will oftentimes immediately be discouraged from even pursuing their plaintiff claims.

Others opposed to the legislation also point out that there are other, more compelling reasons why physicians do not want to take calls or provide emergency care in Arizona - the number one reason being pay.  They believe that physicians are discontent with the compensation they receive from hospitals and the low to nonexistent reimbursements they receive from ER patients, the majority of whom do not have insurance.

Limits on Malpractice Action are Limits on Injured Patients' Rights

Despite whatever the reasons may be that any doctors do not want to take an ER call or work as an emergency room doctor in the state, those who do are still entrusted with not just the responsibility, but the absolute requirement, to provide patients with adequate care.  Those who do not provide the required care that meets the accepted standard of care for their medical specialty are negligent and liable for malpractice resulting from their specific medical negligence.  Patients have an indisputable right to recover compensation for any losses they suffer because of a physician's or any other healthcare provider's negligent acts.  The Arizona State Government has no right to - nor should they ever - place any limits or otherwise interfere with patients' rights to bring their medical negligence claims resulting from the wrongful conduct and negligence of others.

Notwithstanding the recent increase in the plaintiff's burden of proof in claims against emergency room healthcare providers as a result of Senate Bill 1018 (adding a new section to the Arizona Statutes, A.R.S. §12-572 "Burden of Proof for Treatment in Emergency Departments or Rendered by On-Call Providers"), injured patients should still pursue with great force and energy their rights to seek compensation for any harm caused by emergency healthcare providers.

Medical negligence is about real people sustaining real injuries resulting from medical malpractice by a healthcare provider.  Contact a knowledgeable attorney today for more information on pursuing a medical malpractice action. 

Article provided by Harris Powers & Cunningham, P.L.L.C.
Please visit us at www.hppc-law.com.