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Arizona Law Requiring Expert Testifying in Medical Malpractice Action Specialize in Same Specialty as Treating Physician Held Constitutional


A seventeen-year-old girl was treated for blood clots by a doctor. The girl died. Her father brought a wrongful death action against the doctor, the doctor’s spouse, and the doctor’s employers.

 

The doctor was certified by the American Board of Pediatrics in pediatrics and in pediatric hematology-oncology. The American Board of Medical Specialties (“ABMS”) recognized pediatrics as a specialty and pediatric hematology-oncology as a subspecialty of pediatrics. The father’s expert witness on the standard of care the defendant doctor owed the decedent was certified by the American Board of Internal Medicine in internal medicine and in hematology and medical oncology. The ABMS recognized internal medicine as a specialty and hematology and medical oncology as subspecialties of internal medicine.

 

The defendants moved for summary judgment arguing that the father’s expert witness did not meet the requirements of A.R.S. § 12–2604, which sets requirements for experts who testify about the appropriate standard of care in medical malpractice actions. Specifically, the statute states, “If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty.”

 

The father argued both that his expert witness did meet the requirements and that the statute was unconstitutional under the Arizona Constitution’s Anti-Abrogation Clause and the U.S. Constitution’s Due Process Clause of the 14th Amendment.

 

The Superior Court of Pima County granted summary judgment to the defendants. The trial court determined that the relevant specialty was pediatric hematology-oncology and ruled that the father’s expert was not a qualified expert because he, unlike the defendant doctor, was not certified in that specialty. The court also rejected the constitutional challenges to the statute. The father appealed.

 

The Court of Appeals vacated and remanded. The court of appeals agreed that the father’s expert was not qualified, but reversed the trial court's decision in part. It ruled that the word “specialty” in A.R.S. § 12–2604 refers to one of the twenty-four specialty boards that make up the ABMS, rather than subspecialties such as pediatric hematology-oncology. The appeals court concluded that the father’s expert was not qualified as an expert because he was not board certified in pediatrics, the ABMS specialty in which the defendant doctor was board certified. The court of appeals remanded with instructions that the trial court should give the father time to find another expert who was board certified in pediatrics.

 

The Supreme Court of Arizona vacated the court of appeals' opinion, except insofar as it vacated the trial court's judgment and directed the trial court on remand to allow the father an opportunity to identify an expert with the qualifications required by A.R.S. § 12–2604, and remanded the case to the trial court for proceedings consistent with its opinion. The court considered both the interpretation and constitutionality of A.R.S. § 12–2604. First, with regard to the interpretation of the statute, the court noted that the statute does not define the terms “specialist” or “board certified,” and Arizona law does not otherwise provide general definitions for these terms. The court held that the statutory requirement that a testifying expert in a medical malpractice action specialize “in the same specialty or claimed specialty” as the treating physician applies only when the care or treatment at issue was within that specialty.

 

Based on its interpretation of the statute, the court defined “specialist” as someone who devotes most of his or her professional time to a particular specialty. The court found that the term “specialty” refers to a limited area of medicine in which a physician is or may become board certified. The court disagreed with the Court of Appeals by finding that the term “specialty” includes subspecialties and is not limited to one of the twenty-four specialty boards that make up the ABMS. The court further found that “claimed specialty,” refers to situations in which a physician purports to specialize in an area that is eligible for board certification, regardless of whether the physician in fact limits his or her practice to that area.

 

The court concluded that the trial court correctly interpreted A.R.S. § 12–2604 to require a testifying expert to be board certified in the same specialty as the defendant doctor if she was practicing within that specialty while providing the treatment at issue. The court noted that record evidence suggested that both non-pediatric and pediatric hematologists could have treated a seventeen-year-old patient for a blood disorder. The court held that the trial court did not abuse its discretion in concluding that the defendant doctor was practicing within her specialty of pediatric hematology-oncology. Based on that conclusion, A.R.S. § 12–2604 required a testifying expert to be certified in pediatric hematology-oncology, even if physicians in other specialties might also have competently provided the treatment. Therefore, the trial court did not err in ruling that the father’s expert, who was board certified in internal medicine and in hematology and oncology, was not qualified as an expert.

 

Second, the court considered the father’s argument that if his expert was not qualified under A.R.S. § 12–2604, then the statute violated the Anti-Abrogation Clause of the Arizona Constitution and the U.S. Constitution’s 14th Amendment Due Process Clause, both known as the open-court guarantees. The Anti-Abrogation Clause of Arizona Constitution, A.R.S. Const. Art. 18, § 6, prohibits the abrogation of all common law actions for negligence, intentional torts, strict liability, defamation, and other actions in tort which trace their origins to the common law. The legislature may regulate the cause of action for negligence, notwithstanding the anti-abrogation clause of the state constitution, so long as it leaves a claimant reasonable alternatives or choices which will enable him or her to bring the action. The court held that A.R.S. § 12–2604 permissibly regulates, rather than abrogates, the right to bring a medical malpractice suit, and therefore does not violate the Anti-Abrogation Clause of Arizona Constitution, although the statute might deny a plaintiff his or her expert of choice. Under the U.S. Constitution’s 14th Amendment Due Process Clause, a court may not deprive a plaintiff of a meaningful opportunity to be heard. The court held that A.R.S. § 12–2604 does not bar medical malpractice lawsuits or preclude plaintiffs from recovery in these actions.

 

Third, the court considered the father’s claim that by burdening his right to bring a medical malpractice action, A.R.S. § 12–2604 denies him equal protection under the Federal and Arizona Constitutions. The right to bring a negligence action, although not fundamental under the Federal Constitution, is a fundamental right protected by the anti-abrogation clause of the Arizona Constitution. The court held that no greater scrutiny is applied to an equal protection claim involving non-suspect classifications grounded in the Arizona Constitution's anti-abrogation clause than would apply to an alleged violation of the anti-abrogation clause itself. Therefore, the court determined that the father’s Equal Protection claim would be reviewed under a rational basis standard because no suspect class was implicated. The court reasoned that A.R.S. § 12–2604 conceivably furthered a legitimate state interest in decreasing medical malpractice insurance rates and the reluctance of physicians to practice in Arizona and therefore satisfied the rational-basis scrutiny.

 

Fourth, the court determined that A.R.S. § 12–2604 was not a prohibited special law. Arizona's Constitution, Art. 4, Pt. 2, § 19, prohibits the enactment of “special laws” that change the rules of evidence and limit of civil actions. To determine whether a statute is a prohibited special law, a court considers: (1) whether the classification has a reasonable basis, (2) whether the classification encompasses all members of the relevant class, and (3) whether the class is elastic, permitting members to move in and out. The court reasoned that A.R.S. § 12–2604 was not a “special law” because it applied to any party seeking to offer an expert in a medical malpractice action, and the classification created by statute was elastic because the identities of the parties and their experts would change over time.

 

The Arizona Supreme Court vacated in part the opinion of the Court of Appeals and remanded the case to the trial court for further proceedings.

 

See: Baker v. University Physicians Healthcare, 2013 WL 897340 (Ariz., March 12, 2013) (not designated for publication).

 

 

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