Governor Napolitano has until April 25, to act on a medical malpractice bill she says will draw a court challenge if enacted. As is her practice, she did not answer reporters’ questions about her opinion of the bill.

Called the “I’m Sorry” bill, S1036 holds health care providers harmless from civil liability for any expression of apology for an adverse medical outcome, and it changes rules of evidence regarding qualifications of expert witnesses.

After a controversial provision regarding confidentiality of medical records was stripped from the bill in the House, which passed it 39-18 April 11, it was returned to the Senate, where it was approved 23-6 April 18.

The constitutionality of the expert witness provision is under question, Ms. Napolitano told reporters April 20. The bill requires that those witnesses be of the same medical specialty as the opposing party’s expert witness and be board certified in a specialty if the opposing witness is board certified.

“I have been told by several attorneys that they intend to challenge at least part of that bill,” she said.

The bill’s sponsor, Sen. Carolyn Allen, R-8, said she believes the governor, who as an attorney defended insurance companies and hospitals in around 200 malpractice cases, will sign the bill at the urging of key aides, although, she said, there is a rumor Ms. Napolitano will let the measure become law without her signature.

About the rumor, the governor quipped, “Well, that assumes facts not in evidence.” If the governor does not act on a bill within five days (including Saturdays) of receiving, it becomes law.

Lawmaker: 1 Provision Is Unconstitutional

Sen. Bill Brotherton, D-14, an attorney who opposes the bill, says the expert witness provision is unconstitutional because the state Supreme Court establishes rules of evidence and procedures, not the Legislature.

“It’s a question of separation of powers because typically the courts control what type of evidence goes in front of not only judges but juries and the qualifications of experts,” he said.

Mr. Brotherton said expert physician witnesses in malpractice cases often come from out-of-state because Arizona physicians are reluctant to testify against fellow physicians for fear they will lose referrals.

The Arizona Trial Lawyers Association opposed the bill, although it supports the apology provision, which states a physician or other health care provider may apologize for an unanticipated outcome — even admit to a mistake — without it being considered an admission of guilt or liability in civil court.

Half of the Democrats in the Legislature voted against the bill.

“This will do nothing to affect malpractice premiums,” which is the problem we should be addressing, said Rep. Phil Lopes, D-27. “It seems like anything will do, even if it will do nothing. People are fixed on tort reform.”

Mr. Lopes said options other than tort reform are necessary to stem the rising costs of medical malpractice insurance, including insurance reform, more vigorous application of a recent law to screen out frivolous lawsuits, establishment of another malpractice insurance provider, and even state subsidies for malpractice insurance carriers.

“The Legislature has a role here,” he said. “Everything needs to be on the table.” Steps should be taken, he said, to stem conflicts between doctors and lawyers.

Mr. Lopes said full disclosure of medical errors in hospitals as required by the Joint Commission on Accreditation of Healthcare Organizations is “not discoverable,” meaning it cannot be used in a lawsuit.

Andrea Smiley, a spokeswoman for the Arizona Medical Association, says the I’m sorry provision will not have an immediate effect on malpractice insurance rates, but “in time, it will.” She said the apology measure would improve the doctor-patient relationship.

Colorado, Georgia, Minnesota and Illinois have enacted I’m Sorry laws, but Doug Wojcieszak, founder of the Illinois-based “Sorry Works! Coalition” says he encourages states to expand those laws to include steps beyond an apology, including an offer for compensation. His group recommends that:

• Hospitals and physicians review every adverse incident.

• Hospital administrators and physicians sit down with patients and families to explain what happened.

• The hospital and doctor apologize if a mistake were made and offer the patient or family fair compensation if a medical investigation found there was an error.

• They explain how the problem will be corrected.

If there was not an error, the patient and family are extended an expression of sympathy.

Mr. Wojcieszak told Arizona Capitol Times that I’m sorry laws should provide an option that an apology could be admissible in a trial if the defendant wanted it in evidence.

“If it comes to court, the doctor would look good” for apologizing, he said.

David Patton, a plaintiff medical malpractice attorney in Scottsdale, told amednews.com, an Internet publication for physicians, that many of his clients are simply searching for answers to what went wrong in their medical cases.

Mr. Wojcieszak added, “So many lawyers tell their doctors not to talk.”

Carol Houk, a consultant who assists 28 public and private hospitals, clinics and surgi-centers deal with medical errors and adverse outcomes, says her four-step program, HealthCare Ombudsman/Mediator, has reduced damage claims against her clients to nearly nothing.

She says she trains physicians and other health care professionals to first apologize, then explain what happened, what will be done to fix the problem and, when warranted, offer compensation early.

Ms. Houk said of 500 cases handled under her program at the National Naval Medical Center, no compensation was sought, and only 1 per cent of 3,200 cases in private facilities resulted in compensation.

“Disclosure and caring have value,” she said. —