Arizona Lawmakers Move to Raise Burden of Proof on ER Suits

Hoping for a change of heart by Gov. Janet Napolitano, the Arizona Senate on Monday narrowly approved a medical malpractice bill to raise the bar on the legal burden of proof required for malpractice lawsuits involving emergency medical care.

The Senate approved the bill 16-12, sending it to the House. Sixteen votes are the minimum needed for Senate passage.

Napolitano vetoed an identical bill last year, but Republican Sen. Carolyn Allen of Scottsdale reintroduced the measure this year, a month after a Napolitano-appointed task force recommended adoption of the change.

The bill (SB1032) would raise the burden of proof for lawsuits over emergency care. The existing lower standard requires a “preponderance of the evidence,” which essentially means something is more likely than not. The new standard would require “clear and convincing evidence.”

The change would make it harder to prove a claim of negligent care, and supporters say that would help deter frivolous lawsuits and also reduce litigation expenses that contribute to high liability insurance costs for physicians and other medical providers. Those costs, supporters say, are one reason that providers are reluctant to enter and stay in the field.

The bill is backed by hospitals, health insurance companies, business organizations and groups representing doctors and nurses. It is opposed by groups representing and supported by plaintiffs’ lawyers who argue that the change would deprive many Arizonans of the chance to recover damages for medical negligence.

It’s already hard to sue a doctor, said Sen. Paula Aboud, a Tucson Democrat who voted against the bill. “To change the burden of proof makes it that much harder.”

Allen said her bill raises the burden of proof but would not prohibit lawsuits outright. “You can (still) sue if you have been grievously harmed,” Allen told fellow senators during their vote.

Napolitano spokeswoman Jeanine L’Ecuyer declined to discuss Napolitano’s views on the reintroduced bill, but Allen said after the floor session that she was optimistic that Napolitano would sign it.

Napolitano’s May 2 veto letter said raising the burden of proof alone wouldn’t remedy shortages of on-call specialists needed by emergency rooms and that changing the evidence standard could violate the Arizona Constitution.

In conjunction with the veto, Napolitano appointed a task force to study issues related to access to emergency medical care.

The Medical Emergency Services Access Task Force’s Dec. 13 report included a recommendation to raise the burden of proof for physicians providing mandated care in emergency departments or in a disaster.

A majority of the task force “believe this reform is necessary because emergency department patients present unique challenges that make physicians less willing to assume their care, yet preserves the right of emergency patients to receive compensation in the event of clear and convincing evidence of a malpractice event,” the report said.

Allen said she was encouraged by gubernatorial aides and others close to Napolitano to reintroduce the bill.

In 2004, Napolitano signed a bill that was intended to weed out frivolous malpractice suits by requiring plaintiffs to first obtain an affidavit from an expert saying there are grounds to file the suit.