Ariz. Senate Backs Malpractice Changes Sought by Physicians

The Senate gave preliminary approval Feb. 17 to a three-pronged medical malpractice bill backed by business groups and physicians.

The measure would provide a legal shield for doctors’ apologies, tighten requirements for the credentials of expert witnesses testifying in court and make it easier for insurance defense lawyers to question health-care providers and see records.

Lawmakers considered the bill (SB1036) as other states and Congress consider an array of issues related to medical malpractice lawsuits. The Arizona bill now awaits a formal Senate vote that could send it to the House as early as Feb. 21.

Seeking restrictions on malpractice lawsuits and other changes, critics say lawsuits drive up insurance premiums and other costs for physicians, driving some into early retirement or to other states.

Business groups say medical malpractice lawsuits are a concern to them because of insurance costs for businesses and because communities suffer if they lose or can’t recruit physicians because of high insurance premiums.

Trial attorneys, who oppose the bill, argue that malpractice judgments aren’t to blame for physicians’ higher insurance premiums and that lawmakers shouldn’t make it harder for patients to recover damages for medical mistakes.

Doctors say a so-called “I’m sorry” provision like ones already enacted in such states as Colorado and Wyoming would improve patients’ relationships with doctors and make patients less likely to sue. Such provisions mean doctors’ apologies and offers of condolences can’t be used against them in malpractice cases.

Trial lawyers have said they could accept limited legal immunization for doctors’ apologies and condolences.

Another provision would let health care providers provide information to defendants’ attorneys without violating the physician-patient privilege as long as patients are notified and their attorneys have a chance to participate in the interview.

State law now prohibits questioning of a physician about a patient without the patient’s consent. Also, a 1989 state Court of Appeals ruling said any questioning must use formal legal methods of discovery, including the presence of a patient’s attorney.

The bill also would require that an expert witness called by a medical-malpractice plaintiff be a licensed professional and have the same specialty as the physician named in the lawsuit if that physician is a specialist.

It also requires that expert witnesses have devoted most of their time to practicing or teaching medicine.

Bill supporters say those requirements are intended to require testimony from experts truly familiar with medical practices they’re critiquing. Opponents say the restrictions will make it harder for plaintiffs to find physicians willing to buck the medical establishment to testify on behalf of plaintiffs.

At times, lawmakers’ own experiences figured into the Senate’s debate.

Sen. Marilyn Jarrett, a Mesa Republican, objected to letting defense attorneys have unfettered access to providers and records. She said patients need to monitor what’s being said and disclosed.

She said a broken leg she suffered was erroneously recorded by her doctor as having happened in a fall rather than when she removed her leg from a treatment machine.

“This is a fairness issue,” she said.

In a statement disputed by a senator who is an attorney, another lawmaker who is a pediatrician said defense attorneys’ inquiries wouldn’t get into inappropriate areas.

“They’re not going to be misusing these records,” said Sen. Robert Cannell, D-Yuma.

Sen. Bill Brotherton, a Phoenix Democrat who practices personal injury law but not medical malpractice cases, said he’s had opposing attorneys try to review sexually related matters in accident victims’ medical records.

“The idea that people don’t ask inappropriate questions is totally wrong,” he said.

Waiting in the wings at the Legislature is a proposed ballot measure to allow the Legislature to cap non-economic damages awarded to lawsuit plaintiffs.

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