New Arizona Law Boosts Burden on Patients Harmed by Medical Negligence

A new Arizona law, sb1018, has shifted the burden of proof in emergency care medical malpractice cases, making it more difficult for patients harmed by emergency procedures to prove their cases.

Previously Arizona law required the injured victims demonstrate that medical malpractice occurred by a “preponderance of the evidence.” Under this standard, an injured person needed only to demonstrate that malpractice was more likely to have occurred than not.

However, under the new law the injured victim must provide “clear and convincing evidence” that malpractice occurred. This is a much higher burden, requiring that the injured person convince the court that it is substantially more likely than not that medical malpractice occurred. This makes it even more difficult for a person injured by medical negligence to prove their case. No other type of civil claim in Arizona has such a demanding standard of proof.

Legal experts say the practical effect of this change will be to reduce the odds that a patient harmed by improper medical procedures will prevail in court. Critics of the law say that as a result of this change, patients harmed by incompetence or negligence will be stuck with both the medical repercussions of the substandard treatment and the financial burdens of future reparative surgeries and therapeutic procedures. In truth, a very large number of people who are injured by a medical mistake will not be able to bring a claim at all, for want of being able to find an attorney to help them. This is the first step in closing the door to the courthouse for an injured victim or their family.

Supporters of the bill claim it will help Arizona attract more emergency room doctors and nurses to the state by lowering the costs of medical malpractice insurance. This is absurd. There is no credible evidence that hospitals cannot attract physicians for the ER, and no evidence that this might otherwise be the case due to potential liability concerns. Indeed, a 2006 study of the shortage of emergency department personnel showed that fear of a lawsuit was a minor aspect of the problem. The research shows that long hours and relatively low pay (i.e. low health insurance reimbursement) play a much larger role in doctors’ reluctance to commit to emergency room care.

The liability protection bill was supported by lobbying efforts by the Arizona Medical Association and the Arizona chapter of the American College of Emergency Physicians. Of course. Doctors, like most people, do not like being told that they have committed a wrong. The role of the civil justice system is to not only to call them out on their wrongdoing, but also to make them (actually, their insurance company) pay for the mistake. However, if they can change the law to make the burden more difficult, they are one step closer to insulating themselves from any liability at all for their mistakes. This new Arizona law takes a big step in that direction.

Doctors don’t like to be told they made a mistake. Insurance companies don’t like to pay money to injured victims. Indeed, often they will do whatever they can to avoid it. Any legislative measures that are taken to curb YOUR rights to sue or recover for the wrongs of others are called “tort reform.” Insurance companies, the medical profession, large businesses and your Congress are trying to make people think that this is a good thing. They want you to believe that they cannot run their businesses in a normal way, or that they cannot compete with other businesses in foreign countries because of the legal system in the United States that holds them accountable for their wrongdoing.

Wait----you mean that our civil justice system in the United States is a means of holding wrongdoers accountable for their conduct???? And, doctors, insurance companies and Congress want you to believe that is a bad thing??? Of course they do, because it helps pass laws like this, which insulate doctors from responsibility for their wrongs and help insurance companies save money when they might otherwise have to pay.

The doctors and their insurers will hail this as a victory. Of course they will—it is a victory for them. But at the same time, as in most things, if there is a winner there is also a loser. The losers in this scenario are the citizens and residents of Arizona. For the most part, this has barred you from the courthouse should you suffer an injury in a hospital emergency room. It always seems OK when the person affected is the other guy. It never hits home until it actually hits home. When that happens, you will surely come to know that this is a bad thing. Unfortunately, it will be too late.


**If you have any questions or comments, please feel free to email Chris Zachar directly at CZachar@zacharlaw.com, or visit our website at http://www.ZacharLawFirm.com .