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At long last, Allen’s E.R. malpractice bill signed

Carolyn Allen

Carolyn Allen

A four-year battle for Sen. Carolyn Allen came to end with a stroke of the governor’s pen.

Gov. Jan Brewer on July 13 signed S1018, which raises the burden of proof for medical malpractice lawsuits against emergency room physicians. Allen, a Scottsdale Republican, had tried unsuccessfully for years to get the measure passed, only to see it fail to reach the governor’s desk.

The bill raises the burden of proof for plaintiffs in malpractice suits against emergency room doctors from “preponderance of evidence” that the physician is guilty of malpractice, meaning the charge is more likely true than not, to “clear and convincing evidence,” the highest burden of proof in civil cases.

Allen said legislation will encourage more doctors to practice emergency medicine in the state.

“What this is more about than anything for me is that we need to have more doctors that are willing to work in the emergency rooms, and this would give them, I think, more comfort that indeed the standards for a lawsuit would now be clear and convincing versus preponderance of evidence,” she said. “This is not to prevent anybody from having redress when they have been harmed.”

Elizabeth Baskett, of the Arizona Hospital and Healthcare Association, said emergency room physicians generally do not have a patient’s medical history, and as a result are more likely to err in their treatment. Those factors make them more susceptible to lawsuits, she said, which is a deterrent keeping many doctors out of emergency medicine.

“What the physicians have told us is that the liability that they face in the emergency rooms is one of the reasons they do not want to … provide on-call services in the emergency department,” Baskett said. “And so now the patient needs … emergency medical treatment and the doctor is operating without the benefit of having the medical records or the experience with that patient. So what we’re trying to do is lower the threat of being sued for liability, just for those specific cases.”

But Gregory Patton, an attorney who specializes in malpractice suits, said the bill unnecessarily raises the burden of proof for emergency room doctors above that of other physicians, who are still held to the “preponderance of evidence” standard in malpractice suits. The standard of care used for malpractice cases already takes into account whether a physician was familiar with a patient’s history, Patton said, so a doctor would not be punished for making mistakes based on that lack of information.

“The standard of care for an emergency room physician says … you don’t know what the patient’s history may be. As an emergency room physician, you may be acting under exigent circumstances because it’s an emergency,” Patton said. “I think it’s going to chill a lot of legitimate, meritorious medical malpractice lawsuits where people are injured by negligent emergency room physicians, and they’re unable to prove their case because it’s a higher burden of proof, or they’ll be unable to get a lawyer to represent them because it’s too difficult to prove the case.”

Physicians win more than 90 percent of medical malpractice cases that go to trial, Patton said, and the elevated burden of proof will simply make it harder for plaintiffs who were injured out of negligence to prove their already-difficult claims.

Baskett said Arizona faces a shortage of emergency doctors, a shortage that is especially severe in rural areas. The physician-to-population ratio in Arizona is about 219-100,000, Baskett said, compared to a national average of about 293-100,000. She said the ratio in Apache County is only 50-100,000.

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