If a medical liability bill being considered in Senate is enacted, it will end up in court, say both supporters and opponents.

Constitutional issues in the bill, S1036, were raised the week of Jan. 31, and Democrats with opposite views on the legislation said a court challenge is likely if it passes.

In the meantime, two Senate measures to cap attorney fees and damages for death and personal injury have been introduced.

Regarding S1036, which supporters say balances the rights of plaintiffs and defendants procedurally in medical liability litigation, Sen. Robert Cannell, D-24, said, “It might be there will a court challenge, and there probably will be, but we’ll take our risk. What we’re trying to do here is level the playing field and improve the doctor-patient relationship.”

Mr. Cannell’s statement was made to the Democrat caucus on Feb. 1 and referred to provisions in the bill, including that health care providers in malpractice lawsuits may in a non-legal setting apologize — even take blame — for bad medical outcomes, without the expression being used against them in a civil proceeding. Oregon and Colorado have adopted similar so-called “I’m sorry” laws.

The bill also deals with waiver of the patient-physician privilege, in that it would permit defendants to interview all people who have provided health care to the plaintiff, without having to obtain permission from the plaintiff, which is currently required under Duquette v. Superior Court. And it makes more stringent the qualifications of expert witnesses.

“I don’t have any problem with the idea of trying to lower the level of tension between patients and doctors in these situations,” said Sen. Bill Brotherton, D-14, [but] it certainly would be going far beyond leveling the playing field. He said the state Supreme Court sets rules of evidence and other procedures, not the Legislature.

Mr. Brotherton used that argument in a Rules Committee meeting Jan. 31 to say the bill is unconstitutional. Despite concerns from Rules legal counsel Joni Hoffman, the committee forwarded the bill for debate and final action by a 3-1 vote.

“In a couple of [provisions in the bill],” said Ms. Hoffman, “the Legislature could be seen as diving into court procedural rules. Long-standing case law says that the court makes its own rules of procedure, and the Legislature makes substantive law.”

She told the Rules Committee, however, “. . .in the past when the Legislature has done similar things, the courts have not seemed to care all that much, to be honest with you.”

Ms. Hoffman also said it’s a “close call whether overturning Duquette would violate federal standards for medical privacy.

Mr. Brotherton told his caucus the “I’m sorry” provision is too broad and could be interpreted to mean an apology from a health care provider in a deposition or in a trial also could be inadmissible.

How Attorneys View Bill

Mr. Cannell, a physician, said attorneys view the bill differently.

“This bill was drawn up by attorneys,” he said. “We have discussed the bill with the legal counsel for [the] Rules [Committee], and we don’t see it the same way. If anybody thinks that a doctor is going to admit he did something wrong in a deposition, think again. If you think a deposition has anything to do with the truth, think again.

“The truth does not come out in depositions,” Mr. Cannell continued. “But it would be nice for patients who have something go wrong to know why it went wrong and why it happened. It doesn’t come out in the deposition, it doesn’t come out in the trial. Every time we turn, the attorneys think of another reason why this won’t work.”

Mr. Cannell said that attorneys who wrote the bill “realize it will be challenged. They think they will meet the challenge. It [the “I’m sorry” provision] would definitely, from the literature I’ve read, decrease the number of suits. In that regard, it would help lower the rise in malpractice premiums.”

Democratic Leader Linda Aguirre said a doctor might tell a patient or family that something went wrong, but in a deposition might not be willing to make such an admission.

“I have a hard time with that kind of apology…”she said. “My husband’s a trial lawyer, and I think everyone in this room knows that, and I’ve seen his cases and seen what’s happened, and an apology just won’t cut it, I’m sorry.”

At least one Arizona hospital system has a policy requiring disclosure to patients or families of unanticipated medical outcomes, but did not want to be identified.

Sen. Jorge Garcia, D-27, who supported the bill when it was heard by the Health Committee, said that to avoid a court challenge if enacted, the legislation needs some amendments and compromise.

“Both the proponents and the opponents are expecting this to reach the courts,” he said. “I’m hoping that in the process, we can get some type of agreement because it [a court challenge] can be avoided.

“You guys better get together for a better bill before I will support it,” Mr. Garcia told Mr. Cannell and Mr. Brotherton.

Floor amendments to clarify the “I’m sorry” and other sections of the bill were expected to be offered, senators said.

Related Bills

Sen. John Huppenthal, R-20, has introduced SCR 1035, which would ask voters to approve a constitutional amendment permitting the Legislature to regulate death and injury claims against licensed health care providers, including limiting damages and attorney fees. The measure also provides that damages could be paid in installments and it mandates non-litigation dispute resolution.

Sen. Carolyn Allen, R-8, is the sponsor of S1251, which amends current elder abuse law to permit a court to order punitive damages, and the payment of attorney fees, in most cases, may not exceed two times the amount of compensatory damages awarded

Previous tort reform measures pushed by the medical and business communities have failed in Arizona.

Whether Senate legislation gets to the House is too-close-to-call, say those involved in the bills. House members questioned by Arizona Capitol Times had various takes on tort reform.

“I would also like to see a method for taking into account the history of some plaintiffs as being prone to frivolous and/or frequent lawsuits,” said Rep. Pamela Gorman, R-6. “No one should be permitted to make a living by being a serial plaintiff.”

Rep. John Nelson, R- 12, said the engineering profession faced a malpractice crisis in the past, and insurance carriers bailed out.

“If you get too restrictive, insurance carriers just leave the state,” he said. “There has to be balance.”

“Many of our doctors are moving to states that have passed tort reform,” said Rep. Bill Konopnicki, R-5.

Rep. Bob Stump, R-9, said he favors caps on punitive damages and for pain and suffering.

“Congress’s Joint Economic Committee estimates that if a $250,000 cap on non-economic damages were put in place on the federal level, 4 million more people would be able to get health insurance,” he said. “Capping non-economic damages would lead to lower malpractice premiums and reduce doctors’ use of defensive medicine, which drives up the cost of health care. The overall result would be better care at a lower cost, and more people would be able to buy coverage.”

Rep. Mark Anderson, R-18, said, “Citizens are being plundered by the insurance companies and the trial lawyers. I would support caps on damages, as well as guaranteed premium reductions. Unless we do both at the same t
ime, the lobbyists will derail any meaningful reforms.”

House Democratic Leader Phil Lopes said the solution for the high cost of medical malpractice insurance lies in fewer medical mistakes.

“I am aware of no evidence that capping awards or limiting lawyers fees will affect the cost of premiums,” he said. “I intend to introduce a bill to address medical errors in hospitals. Doing something to reduce medical errors, or treating the problem instead of the symptom, is a better solution to malpractice insurance premiums because it attempts to reduce the number of instances of malpractice.”

And Sen. Karen Johnson, R-18, said the problem “should not be solved on the backs of victims.”

“As we look at trying to set limits on jury awards, it seems particularly unfair to try and set an arbitrary limit on the quality of someone’s life,” she said. “Perhaps we should have more faith in juries to make well-reasoned decisions, as they are our neighbors, friends and family.

“I am also concerned about patient safety and the ramifications any legislation could have on that population,” Ms. Johnson said. —