Governale v. Lieberman (CA1 3/10/11)

Plaintiff here raised new constitutional challenges to A.R.S. 12-2604, which regulates the standard of evidence in a medical malpractice case.

Plaintiff sued Defendant, a neurosurgeon, naming an anesthesiologist of the “pain management” variety as his expert. The statute requires an expert to be of the same specialty, so the trial court granted summary judgment for Defendant.  Plaintiff appealed.

(That’s enough to understand the case; it was actually a bit more complicated since the trial court reversed its decision, and then changed it back again, as Seisinger v. Siebel held the statute unconstitutional (Court of Appeals) then constitutional (Supreme Court)).

Plaintiff argued that the statute violates the anti-abrogation, equal protection, due process, special legislation, and jury trial provisions of the Arizona Constitution and denies him access to the courts. (We trust that we no longer have to point out to readers of this blog that throw-a-lot-of-mud-and-see-if-some-of-it-sticks is a loser’s formula. If you think you have a good theory then you should go with it; if you think you have six good theories then you should go re-examine your thinking).

As to the theory that the statute abrogates the cause of action for legal malpractice the court points out that  abrogation means complete abolishment, not regulation that preserves “a reasonable possibility of obtaining legal redress.” The statute does not abrogate; on this point it does little more than the common law already did.

Plaintiff said the statute violates due process/equal protection by discriminating against medical malpractice plaintiffs. He relied up on a case (Hunter Contracting) holding a statute unconstitutional for requiring an expert’s affidavit to sue a contractor, even where the case didn’t require an expert. 2604 concerns the standard of evidence necessary for both sides to prove their case, not for a plaintiff to file it. The statute is rationally related to a governmental interest in the cost of health care. (Plaintiff made the usual arguments – costs go up anyway and it’s all the insurance companies’ fault – which, whether right or wrong, don’t really contradict the rational-basis analysis.)

Plaintiff argued that the statute was a “special law”  because it benefits health care providers. But “[l]egislation does not violate the special law prohibition if (1) the classification is rationally related to a legitimate governmental objective, (2) the classification is legitimate, encompassing all members of the relevant class, and (3) the class is elastic, allowing members to move in and out of it.”

Plaintiff claimed that the statute robs him of his right to a jury trial by disqualifying his “otherwise-qualified” expert. (That his expert probably wasn’t qualified even under the common law is a wrinkle he and the court ignore, both for appropriate reasons.) The court basically says that no, it doesn’t.  The opinion, running out of steam and patience at this point, does not expand on that much except to cite Eastin v. Broomfield, the case that upheld the old malpractice review panels.

Finally, Plaintiff said that the statute violates his right to access to the courts because an Oklahoma case held that the requirement of an affidavit of merit was a monetary barrier to filing a lawsuit. The court says that was a Hunter Contracting–type case.


(link to opinion)