Ariz. Bill to Raise Burden of Proof on ER Suits Fails in House

The Arizona House has narrowly rejected a medical malpractice bill that would have made it harder to successfully sue emergency medical providers for alleged malpractice.

The bill was the only major piece of malpractice legislation considered during the current session.

The House voted 28-28 on the bill, with 31 “yes” votes needed for approval by the 60-member chamber. The Senate narrowly approved the bill on Jan. 29, but it then lingered in the House for more than two months as supporters worked to corral votes.

Gov. Janet Napolitano vetoed an identical bill last year, but Republican Sen. Carolyn Allen of Scottsdale reintroduced the measure this year after a Napolitano-appointed task force recommended adoption of the change.

The bill (SB1032) would have raised the burden of proof for lawsuits over emergency care. The existing lower standard requires a “preponderance of the evidence,” which essentially means something is more likely than not. The new standard would require the higher stand of “clear and convincing evidence.”

The change would have made it harder to prove a claim of negligent care, and supporters say that would help deter frivolous lawsuits and also reduce litigation expenses that contribute to high liability insurance costs for physicians and other medical providers.

Those costs, supporters say, are one reason that providers are reluctant to enter and stay in the field.

“This bill helps create a climate that will help keep them here,” said Rep. John Kavanagh, a Fountain Hills Republican who noted that the state is spending millions of dollars to train new physicians.

The bill was backed by hospitals, health insurance companies, business organizations and groups representing doctors and nurses. It was opposed by groups representing and supported by plaintiffs’ lawyers who argue that the change would deprive many Arizonans of the chance to recover damages for medical negligence.

Napolitano’s 2006 veto letter said raising the burden of proof alone wouldn’t remedy shortages of on-call specialists needed by emergency rooms and that changing the evidence standard could violate the Arizona Constitution’s guarantee of the right to sue to recover damages.

In conjunction with that veto, Napolitano created the task force which later included a higher standard of proof among numerous recommendations.