PHOENIX \u2014 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.<\/p>\n
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.<\/p>\n
But Justice James Beene, writing for the majority, said that legislation runs afoul of a provision of the Arizona Constitution that says \u201cthe right of action to recover damages for injuries shall never be abrogated.\u201d And that language, he said, is \u201cunequivocal.\u201d<\/p>\n
Not everyone agreed. Justice Clint Bolick, in his dissent, said the \u201cpolice powers\u201d 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 \u201cencourage 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.\u201d<\/p>\n
And Ann-Marie Alameddin, president and CEO of the Arizona Hospital and Healthcare Association, said the ruling amounts to the state giving medical providers \u201cthe back of the hand.\u201d 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\u2019s ruling covers only those claims against a medical provider who furnishes care during a state of emergency.<\/p>\n
And the last emergency \u2014 the one this law was designed to address \u2014 was between March 11, 2020, when Gov. Doug Ducey declared the emergency and March 30, 2022, when he terminated it.<\/p>\n
But it does open the door for those who had filed COVID-related malpractice claims during that period \u2014 there is no estimate of how many \u2014 to now pursue those cases. Others who didn\u2019t sue because they believed the law precluded it, however, are apparently out of luck because the statutory time to bring that claim has passed.<\/p>\n
Still, there could be significant fallout from the ruling.<\/p>\n
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 \u2014 and not just those that apply during declared emergencies \u2014 designed to shield people from being sued for what the law considers \u201cordinary negligence.\u201d These include protections for:<\/p>\n
\u2022 People who provide emergency care at the scene of an emergency;<\/p>\n
\u2022 Health professionals who provide voluntary services at nonprofit clinics;<\/p>\n
\u2022 Individuals who donate food items to nonprofit organizations for the needy;<\/p>\n
\u2022 Those who administer drugs like Narcan to someone experiencing an opioid overdose.<\/p>\n
But those laws were not before the justices on Friday and they made no comment about them.<\/p>\n
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\u2019s congestive heart failure team.<\/p>\n
Roebuck developed pneumonia and was given supplemental oxygen. But an electrocardiogram confirmed his heart was \u201cdoing pretty well\u201d and the decision was made solely to manage the COVID.<\/p>\n
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A day later a doctor ordered an arterial blood gas test, a more accurate measure of determining the oxygen in a patient\u2019s blood. That revealed very low oxygen.<\/p>\n
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.<\/p>\n
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 \u2014 which lawmakers made retroactive to March 2020 \u2014 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.<\/p>\n
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.<\/p>\n
\u201cThe COVID pandemic has presented a once-in-a-generation challenge from both the public health and economic perspective,\u201d testified Courtney Coolidge of the Arizona Chamber of Commerce and Industry. What it also has brought, she said, are \u201cextraordinary legal uncertainties.\u201d<\/p>\n
The same legislation also said anyone suing under the law would have to provide \u201cclear and convincing evidence\u201d of negligence. That is a higher standard than what normally exists in civil cases, which says jurors decide based on a \u201cpreponderance of the evidence,\u201d meaning whether it is more or less likely that someone was negligent.<\/p>\n
Beene, in Wednesday\u2019s 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.<\/p>\n
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.<\/p>\n
\u201cThe statute does more than simply make it more difficult for an ordinary negligence plaintiff to prevail under these circumstances,\u201d he wrote.<\/p>\n
\u201cRather, it creates insurmountable hurdles for an entire class of plaintiffs injured by ordinary negligence, making it impossible for that class of plaintiffs to prevail,\u201d Beene said. And that, he said, directly conflicts with the constitutional provision that bars lawmakers from eliminating the right of people to sue.<\/p>\n
\u201cThe Supreme Court made the right decision,\u201d said Robert Gregory who represents Roebuck. He said a ruling the other way \u201cwould have turned medical malpractice law on its head.\u201d<\/p>\n
What the ruling also clears the way for his client to pursue his claim against Mayo, Gregory said.<\/p>\n
Bolick, in his dissent, said lawmakers had the legal right to enact the law.
\u201cCOVID-19 presented public policy challenges that were nearly unprecedented, certainly in modern times,\u201d he wrote.<\/p>\n
\u201cThe 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,\u201d Bolick said. \u201cWhat public officials knew about the disease was far exceeded by what they didn\u2019t know.\u201d<\/p>\n
In fact, he said, it wasn\u2019t even necessary for Ducey to declare an emergency.
\u201cUnquestionably, the statute at issue here is an exercise of the state\u2019s police power,\u201d he said. \u201cThe state\u2019s power to protect public health is broad and does not depend on an emergency.\u201d<\/p>\n
Friday\u2019s ruling should not come as a surprise to lawmakers and lobbyists who pushed this through in 2021.<\/p>\n
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.<\/p>\n
Howard Fischer<\/p>\n