Three Trial Courts Hold Medical Malpractice Statute Unconstitutional

Geoff Trachtenberg

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In last few years, many states adopted protectionist legislation in favor of the medical industry. The legislation essentially puts up various barriers to bringing medical malpractice cases by, among other things, attempting to impose expensive and burdensome constraints on the way these types of cases are litigated.

The medical lobbyists, of course, claim that the legislation is necessary to protect medical professionals against "frivolous lawsuits." So, at the outset, let me state my whole-hearted agreement that "frivolous lawsuits," where they exist, should not be allowed and the parties should be punished for bringing them.

With that out of the way, let me state my other belief that the predominance of such lawsuits are a carefully orchestrated insurance-industry fiction designed to sway public opinion. Simply put, these types of lawsuits are far to complex and expensive for attorneys to waste time and money on unless they are believed to be meritorious. Indeed, these types of lawsuits almost always require experts in the medical field to testify about the standard of care (i.e., what "should have been done" in a particular situation) and the need for, and cost of, such testimony is itself a significant barrier to prosecuting these types of cases unless they are worthy.

Anyway, back to the case at hand. Arizona has a legislative scheme on this subject and one of those statutes, A.R.S. § 12-2604, purports to control the requirements for expert testimony in medical malpractice cases. The trouble with this type of statute is that it imposes special burdens on medical malpractice victims that are not imposed on the rest of the world of plaintiffs. In particular, it purports to designate who may testify as an expert witness, usurping the role of the court pursuant to Rule 702 of the Arizona Rules of Evidence. As a result, many courts around the country are holding that these statutes are unconstitutional and now several Arizona trial judges have agreed that Arizona's version is improper.

While not explaining his ruling, this week Judge Robert E. Miles summarily held the medical malpractice statute, purporting to limit expert testimony, was unconstitutional. This is the third trial court to find the statute violates fundamental rights. Earlier this year, Judges Anna Baca and Paul Katz also held that the medical malpractice statute was unconstitutional.

Although the debate about whether there is really a crisis in the medical malpractice arena is an important one with widely divergent views, it is good to see that judges are not afraid to strike down unfair statutes that favor one group over another. For more informaion on this subject matter, please refer to the section on Medical Malpractice and Negligent Care.