Taking what the medical community says is only one step toward alleviating a crisis in Arizona’s emergency rooms, a committee has voted to send a bill to increase the burden of proof of malpractice in emergency cases to the full Senate.

The bill, S1351, says that unless there is “clear and convincing evidence” of malpractice in emergency situations, health professionals and hospitals are exempt from civil damages. The bill, forwarded on a 5-1 vote Feb. 13 by the Senate Health Committee, elevates the burden of proof from a preponderance of the evidence and includes emergency delivery of infants, when the mother’s medical information is not immediately available.

Proponents of the legislation say it does not prevent patients from suing emergency personnel, but trial lawyers counter that the bill is a step too big and a violation of equal protection, therefore unconstitutional.

“This applies to everybody who starts in the emergency room, throughout the hospital stay and everyone who touches them,” JoJene Mills, former president of the Arizona Trial Lawyers Association, told the committee. “It’s a public policy train wreck. This is not going to make a difference for the people on the front lines.”

Representing the American College of Emergency Physicians and other groups, Dr. Todd Taylor said, however, the state’s hospital emergency rooms are heading into dangerous territory because of the fear of litigation and the lack of enough new medical facilities to keep up with population growth.

Arizona ranks low on ‘Report Card’

The physicians group in January issued an “Emergency Care Report Card,” which ranked Arizona eighth from the bottom among the 50 states in four areas of emergency care affected by state policies and nearly flunked the state for its medical liability environment, all based on 2002 data. The report did not evaluate the quality of emergency care.

“The threat of a lawsuit does not make for better emergency care, and it is this unmitigated threat that is making for a dysfunctional, inadequate and approaching downright dangerous situation in our Arizona emergency departments,” Dr. Taylor testified. Except for weekend duty, he has retired at age 48.

“I understand medical risks and how to manage them,” Dr. Taylor said. “I am not a lawyer, and the legal system scares me. For me and a growing number of colleagues, it’s just not worth it. Be not surprised that these physicians most often cite liability concerns when they opt out of hospital ER on-call rosters.”

The federal Emergency Medical Treatment and Labor Act requires Medicare hospitals to stabilize emergency medical conditions, regardless of the patient’s ability to pay. It is often the case that emergency personnel know little or nothing about a patient’s medical history.

Ms. Mills argued that emergency room overcrowding, lack of reimbursement and medical mistakes — not lawsuits — are at the heart of emergency room and general health care crises. Past and current malpractice legislation, she said, has not addressed reducing medical mistakes.

“It’s really about lessening the remedy for the injured,” Ms. Mills said, adding that the bill heightens the burden of proof to the same level as “beyond a reasonable doubt” in criminal cases, and makes a malpractice claim in emergency cases hard to win.

Patient rights vs. retaining doctors

Sen. Carolyn Allen, R-8, chairman of the committee and the bill’s sponsor, said something has to be done to retain emergency physicians, while protecting a patient’s right to seek damages for bad outcomes.

“I don’t believe this bill is going to keep people from suing,” she said.

Sen. Robert Cannell, D-24, a physician, challenged Ms. Mills regarding her statement that medical mistakes in the emergency room are increasing. He said technological advancements have improved the quality of emergency care.

But, “It’s clear that malpractice cases in some of these emergency room cases are dampening doctors’ enthusiasm for practicing in the emergency room.”

Mr. Cannell took issue with a witness’s suggestion that physician peer reviews be made public. He said doctors can be very critical of one another in those reviews, and making their findings public would end peer review.

The suggestion was made to the committee by Tammy Wahla, whose late husband became brain dead on the operating table at Mesa General Hospital in 2003, after an anesthesiologist and surgeon argued for about 40 minutes over how best to open the patient’s airway, which was blocked by a chicken bone.

Ms. Wahla said an emergency room physician did not believe her husband, who came to the hospital under the influence of alcohol, had a chicken bone in his throat and did not order a diagnostic x-ray.

Two of three doctors who cared for Mr. Wahla were disciplined by the state Medical Board and all three settled a lawsuit with the family.

“Those of us providing emergency care have little control over all the bad things that can happen,” Dr. Taylor said. “In Arizona, we allow the system to blame those of us doing God’s work in the ER for it. I’m just here today to remind you, it’s not all our fault.”

The Associated Press contributed to this article.