Lawmaker tries again to make it harder to sue ER docs for injuries

By Howard Fischer Capitol Media Services

Tucson, Arizona | Published: 12.11.2008

PHOENIX — A veteran state lawmaker is trying again to make it harder for those injured in hospital emergency rooms to sue for damages.

Sen. Carolyn Allen, R-Scottsdale, said Wednesday she is introducing legislation that would require a patient to prove malpractice by “clear and convincing evidence” to win a lawsuit. That is a heavier burden than current law, which says jurors can decide in favor of the patient if they believe it is more likely than not that the doctor committed malpractice.

Allen, who chairs the Committee on Healthcare and Liability Reform, cited a new study by the American College of Emergency Physicians that gives Arizona an “F” in access to emergency care.

She said that grade is based on the unwillingness of doctors to work in emergency rooms. And that, Allen said, is due in part to the fear of lawsuits.

“We have a shortage of doctors,” she said. “And the fact that we could make it easier for them to want to go into emergency-room doctoring could be nothing but a good thing.”

But Tucson attorney JoJene Mills said the change would make it virtually impossible for anyone injured to sue successfully.

Mills, a member of the Arizona Trial Lawyers Association, disputed Allen’s contention that throwing new legal roadblocks in the path of patients will lead to more doctors willing to work in hospital emergency rooms.

“Doctors don’t come to emergency rooms because they don’t get paid because the patients are uninsured,” she said. Mills said that could be one area lawmakers might want to address.

Mills, whose organization represents plaintiffs in lawsuits, also said Allen is missing the point of why people sue in the first place: They get injured. She said there’s a much simpler way of addressing the issue.

“We start reducing medical errors so that doctors won’t get sued as much because they won’t be making as many errors,” Mills said. She said what Allen wants is for patients to give up their rights in exchange for some claim — Mills says unproven — that it will reduce malpractice-insurance premiums.

Allen, however, said there is evidence from other states, which have curbed lawsuits and jury verdicts, that costs do go down.

She acknowledged that her bill alone might not make any difference, but that absolute limits on how much juries can award injured patients would. That issue, however, is off the table, at least for the time being.

Arizona is one of a handful of states with constitutional language barring lawmakers from imposing limits on jury awards. And voters have repeatedly rejected efforts by doctors and the insurance industry to repeal those provisions.

Allen pushed the proposal through the Legislature in 2006 only to have it vetoed by Gov. Janet Napolitano. But Allen noted that Napolitano, President-elect Barack Obama’s choice for U.S. secretary of Homeland Security, will be gone soon, replaced by Secretary of State Jan Brewer, a Republican like Allen.

Craig Norquist, president of the Arizona College of Emergency Physicians, said, “To try to remove any of the barriers to have somebody willing to take calls in the emergency department, or even to work in the emergency department, is going to be beneficial.”

Norquist said it might also encourage doctors from other states wanting to make a change to move here instead of going somewhere else.

“I receive fliers on almost a daily basis to go to work for different emergency-medicine groups in different states,” the Phoenix doctor said. “One of the major advertisements is that they’re in a malpractice- reform state.”

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