Monday, January 17, 2011

Arizona statute A.R.S. 12-572 raises the burden of proof in a medical malpractice case against emergency room physicians and on-call medical specialists to clear and convincing evidence, the highest legal standard (burden of proof) in a civil case. This standard makes it very difficult, if not impossible, for an injured patient and/or family member to find an attorney or otherwise pursue a medical malpractice case. The Arizona legislature is now considering raising the burden of proof to clear and convincing against all physicians in Arizona, making it increasingly dfficult to maintain an action against ANY physican in Arizona for malpractice.

Assuming the proposed legislation will be considered in legislative hearings, I suggest that the hearings provide the opportunity for testimony regarding the physicians' responsibilities vis a vis their patients. Rather than place another increased burden on injured patients, I suggest addressing the physician's responsibilities regarding informed consent (increasingly, "informed patient choice"), disclosure regarding all aspects of patient care, attention to patient's experiences to improve patient safety, offers of compensation, and apology. In terms of evidence, if a physician establishes that s/he adequately met these responsibilities, when (and if)the burden shifts to the physician, s/he could be entitled to a defense verdict. It is difficult to imagine that physicians would oppose this approach since most of them are doing this already, out of respect for their patients, themselves, and the entire healthcare system.

These hearings would provide a tremendous opportunity for the legislature to take a measured, reasoned approach to the entire topic of medical malpractice. It would also provide the opportunity to consider non-adversarial approaches to medical error situations, including collaborative law/practices, such that litigation becomes less and less a process that injured patients turn to. The process can and has in some sectors become more about healing and less about acrimony. The hearings will provide a forum to discuss all these issues among ALL stakeholders in healthcare. It will provide a look at the entire process: from possible medical error to disclosure, apology, possibilities to improve patient safety, and more.