PHOENIX — State lawmakers acted illegally when they voted to immunize doctors and hospitals from claims they acted negligently in treating patients during the COVID outbreak, the Arizona Supreme Court ruled Friday.
In a split decision, the justices voided a 2021 statute designed to provide liability protection for medical professionals when they were dealing with a novel disease with no known treatment. Lawmakers said they wanted to ensure doctors and hospitals would continue to treat patients and not be deterred by the fear of lawsuits.
But Justice James Beene, writing for the majority, said that legislation runs afoul of a provision of the Arizona Constitution that says “the right of action to recover damages for injuries shall never be abrogated.” And that language, he said, is “unequivocal.”
Not everyone agreed. Justice Clint Bolick, in his dissent, said the “police powers” of the state to protect public health are enough to justify the legislation shielding medical professionals from liability in the face of an unprecedented emergency. And that protection, he said, was needed to “encourage physicians to take the risk of treating COVID-19 patients without the benefit of full knowledge about the interaction of the virus with ordinary medical procedures.”
And Ann-Marie Alameddin, president and CEO of the Arizona Hospital and Healthcare Association, said the ruling amounts to the state giving medical providers “the back of the hand.” She said they took the risk of caring for patient at the height of the pandemic when the disease was not understood.
Strictly speaking Friday’s ruling covers only those claims against a medical provider who furnishes care during a state of emergency.
And the last emergency — the one this law was designed to address — was between March 11, 2020, when Gov. Doug Ducey declared the emergency and March 30, 2022, when he terminated it.
But it does open the door for those who had filed COVID-related malpractice claims during that period — there is no estimate of how many — to now pursue those cases. Others who didn’t sue because they believed the law precluded it, however, are apparently out of luck because the statutory time to bring that claim has passed.
Still, there could be significant fallout from the ruling.
In a legal brief while the justices were considering the case, Andy Gaona, representing the Arizona Hospital and Healthcare Association, warned that voiding the 2021 law could set a precedent that would undermine other laws — and not just those that apply during declared emergencies — designed to shield people from being sued for what the law considers “ordinary negligence.” These include protections for:
• People who provide emergency care at the scene of an emergency;
• Health professionals who provide voluntary services at nonprofit clinics;
• Individuals who donate food items to nonprofit organizations for the needy;
• Those who administer drugs like Narcan to someone experiencing an opioid overdose.
But those laws were not before the justices on Friday and they made no comment about them.
The case involves Robin Roebuck, who had a heart transplant in 1993 and a second heart transplant and kidney transplant at Mayo Clinic in 2017.
He was hospitalized at Mayo on April 20, 2020, after presenting with COVID symptoms. Given his history, he was placed under the care of the clinic’s congestive heart failure team.
Roebuck developed pneumonia and was given supplemental oxygen. But an electrocardiogram confirmed his heart was “doing pretty well” and the decision was made solely to manage the COVID.
A day later a doctor ordered an arterial blood gas test, a more accurate measure of determining the oxygen in a patient’s blood. That revealed very low oxygen.
The following day he developed complications from the test and underwent surgery on his right hand, forearm and wrist. He was left with diminished strength and use of his right hand and arm and significant scarring.
Roebuck sued, alleging the test was negligently performed. But Maricopa County Superior Court Judge Rodrick Coffey thew out the case based on the 2021 law — which lawmakers made retroactive to March 2020 — that said such lawsuits related to COVID during a declared emergency can move forward only if there is an allegation of gross negligence, something far harder to prove than the normal negligence he alleged.
That law denying the right to sue for ordinary negligence was adopted on a party-line vote by the Republican-controlled Legislature after it was backed by dozens of lobbyists for various business and medical organizations who told lawmakers they were afraid that they could wind up in court for actions they took related to the pandemic.
“The COVID pandemic has presented a once-in-a-generation challenge from both the public health and economic perspective,” testified Courtney Coolidge of the Arizona Chamber of Commerce and Industry. What it also has brought, she said, are “extraordinary legal uncertainties.”
The same legislation also said anyone suing under the law would have to provide “clear and convincing evidence” of negligence. That is a higher standard than what normally exists in civil cases, which says jurors decide based on a “preponderance of the evidence,” meaning whether it is more or less likely that someone was negligent.
Beene, in Wednesday’s ruling, said there was nothing wrong with that part of the bill. He said lawmakers are free to raise the burden of proof in any cases.
Where legislators went wrong, Beene said, was in eliminating the right of anyone who is the victim of ordinary negligence, leaving them without any legal options at all.
“The statute does more than simply make it more difficult for an ordinary negligence plaintiff to prevail under these circumstances,” he wrote.
“Rather, it creates insurmountable hurdles for an entire class of plaintiffs injured by ordinary negligence, making it impossible for that class of plaintiffs to prevail,” Beene said. And that, he said, directly conflicts with the constitutional provision that bars lawmakers from eliminating the right of people to sue.
“The Supreme Court made the right decision,” said Robert Gregory who represents Roebuck. He said a ruling the other way “would have turned medical malpractice law on its head.”
What the ruling also clears the way for his client to pursue his claim against Mayo, Gregory said.
Bolick, in his dissent, said lawmakers had the legal right to enact the law.
“COVID-19 presented public policy challenges that were nearly unprecedented, certainly in modern times,” he wrote.
“The ubiquitous image of masks, ventilation intubation units, tests outside of hospitals, hospital ships, closed government schools, forced human distancing, closure of businesses and churches, and the like, will long endure in the public memory no matter how merciful the passage of time,” Bolick said. “What public officials knew about the disease was far exceeded by what they didn’t know.”
In fact, he said, it wasn’t even necessary for Ducey to declare an emergency.
“Unquestionably, the statute at issue here is an exercise of the state’s police power,” he said. “The state’s power to protect public health is broad and does not depend on an emergency.”
Friday’s ruling should not come as a surprise to lawmakers and lobbyists who pushed this through in 2021.
Tim Fleming, attorney for the House Rules Committee that reviews legislation for constitutionality, told panel members at the time the measure likely would not survive a legal challenge. The GOP lawmakers on the committee, however, ignored his advice and approved it anyway.
Howard Fischer
Mr. Fischer, a longtime award-winning Arizona journalist, is founder and operator of Capitol Media Services.