If you get into an accident due to the fault of a negligent driver in Arizona, you have certain rights. If, however, you are injured due to the fault of a negligent doctor, many of those rights disappear.
Article II, Section 31 of the Arizona Constitution prohibits the Legislature from enacting any law which limits the amount of damages a person may collect as the result of the negligence of another. This means that the Legislature may not place caps on damages as the legislatures of many other states have done when it comes to medical malpractice cases. On three occasions over the last 35 years, the insurance industry and the medical profession have tried to get the Constitution amended to permit caps on damages. On each of those occasions, the public has refused and the ballot measure has gone down to defeat. However, the lobbyists and lawyers representing the insurance companies and the medical profession are nothing if not creative and your Legislature is nothing if not happy to help out those who contribute to their campaigns. The result is a series of laws and rules which apply only to medical malpractice plaintiffs and which are intended to make it more difficult to be compensated for a medical malpractice injury.
Among the laws and rules is one which does away with the Collateral Source Rule. This rule says that if you are wise enough to buy health insurance to cover medical bills in the event you are injured, the person who injures you should not benefit from your foresight and the money you paid for your insurance. This means that the jury is never told that your medical bills were paid by insurance and you are entitled to be reimbursed for them. Courtesy of your Legislature, a defendant in a medical malpractice case may tell the jury you were insured and suggest that there is no need to give you any money for your bills.
If you are injured in an emergency department, the doctor there is entitled to tell the jury that he or she can be forced to pay only if you prove their negligence by “clear and convincing” evidence. In every other type of case, you need only prove the defendant’s negligence by a preponderance of the evidence. That means you only need to prove that it was more likely than not that the defendant was negligent.
If you sue a doctor or other health care professional, the witness you offer to prove the doctor was negligent must have exactly the same credentials as the defendant. This is not the case anywhere else. If a witness has the expertise to be of assistance to the jury, he or she gets to testify. Requiring identical credentials narrows the list of otherwise qualified professionals who can testify for you and makes it even more difficult to find someone willing and able to testify against a doctor. One ridiculous example of this law involved a 17 year old woman who was being treated by a pediatrician who had a subspecialty in hematology and oncology. She died and her parents brought suit. They offered an internist who had a subspecialty in hematology and oncology to testify that the defendant fell below the standard of care. The training of both was essentially the same, their subspecializations were the same and everyone agreed that 17 year olds could be treated by either and that the treatment would be the same. In spite of all of these matches, the trial court felt obligated to enforce the law and say the witness could not tell the jury what the defendant should have done under the circumstances. The Court of Appeals affirmed saying that the Legislature gets to set the rules. The case of the parents was thrown out of court for lack of a “qualified witness.”
These are only a couple of examples of the Legislature setting the rules to favor the defendants in medical malpractice cases. Unless you have your own lobbyists and deep pockets for campaign donations, don’t count on the Legislature setting the rules fairly any time soon.
