Posted by John Ager on 12 March 2013.
Sadly, today the Arizona Supreme Court handed down a decision in Baker v. University Physicians Healthcare, et al. which makes it more difficult for plaintiffs who have been harmed by medical negligence to obtain justice. The decision can be found at the following link. http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2013/CV-12-0102-PR.pdf More chip, chip, chipping away at the rights of Arizona citizens.
Currently, Arizona Revised Statutes § 12-2604 requires a plaintiff in a medical malpractice case to present expert testimony on the standard of care that applies to a defendant. If the defendant is certified by the American Board of Medical Specialties (ABMS), the expert must also be certified in the same specialty, if the care at issue in the case involved that specialty. At the heart of the decision, however, is whether the statute requires an expert against a defendant with an ABMS sub-specialty to also be so certified as a sub-specialist. The Court concluded that answer was yes.
The defendant in the case was board certified in pediatrics with a sub-specialty in pediatric hematology-oncology. When looking for experts, the plaintiff was turned down by 20 pediatric hematology-oncologists, which is not unusual in cases involving physicians in very small, tight-knit communities who are especially reluctant to testify against one another. So, the plaintiff eventually retained a board certified specialist in internal medicine with a sub-specialty in hematology-oncology. Pretty darn close, right? Wrong. Despite the fact that the plaintiff was 17 years old, the Court concluded that a pediatric physician rather than an internist was required, even though they specialized in essentially the same type of medicine.
As disappointing as the decision was, the constitutional basis the Court relied upon was more disturbing. While the Court recognized the difficulty plaintiffs can face when trying to identify standard of care medical experts from an essentially closed medical community to testify on behalf of a medical malpractice victim, it held that law was constitutional because it applied equally to plaintiffs and defendants. I am not sure how the Court could have reached that conclusion because it based it decision on the policy ameliorating perceived public health problems of rising malpractice insurance premiums and the reluctance of physicians to practice in Arizona. Really? What about the public health epidemic of harm being caused by medical mistakes. Not only does the analysis justify what will be a clearly unequal application of the statute favoring negligent physicians over injured victims, it is contradicted by the research of the American Medical Association, which I have commented on frequently in the past. Making medical negligence cases harder solves neither “problem” cited by the Court.
I do not suggest that the Court is partisan, but it sure went out of its way to reach a result that will disadvantage the majority of Arizona citizens for many years to come.
