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)

THIS DECISION HAS BEEN VACATED

On appeal from arbitration you must file a list of “witnesses . . . intended to be used at trial” (Rule 77). What happens when you leave one out?

Cosper, defendant in a motor-vehicle case, lost at arbitration. On appeal she hired an expert, whom she named in a supplemental disclosure statement filed a couple of months later, which was a couple of months before trial. Plaintiffs moved to strike it; the trial court granted the motion, ruling that a witness could be added only for good cause.

Division One accepted special action on a “pure issue of law” to announce the following: “when a party makes seasonable, good faith disclosure of new evidence during the discovery period allowed by [Rule 77], preclusion is not warranted absent a showing of prejudice that cannot be cured by less drastic means.”

The court then spends eight pages of policy analysis (only a couple of cases are cited) justifying this. Basically, it says that the 80-day period allowed for discovery after appeal isn’t  for making the arbitration case ready to meet the Rules of Evidence; instead, it’s for whatever additional discovery you want. Otherwise, you see, the rules’ delicately-balanced mechanism of expeditious-justice-plus-right-to-trial would topple. So why does the witness-list rule exist? “Under this approach, litigants who ignore the need to prepare for arbitration may find themselves with insufficient time to prepare for trial.” (Yes, that’s what it says. Sometimes even we can’t explain ‘em, we just report ‘em.)

The court figures that Plaintiffs here had enough time (even though the trial court made no such finding), especially since the trial was scheduled as number two on the calendar, which means – well, it isn’t entirely clear what the court thinks that means. It suggests, but doesn’t exactly say, that that gives Plaintiff more time to get an expert of her own ready; the reason it doesn’t exactly say that, presumably, is that no one can know whether that’s true.

We would like to think that the court didn’t realize what was going on here. But a footnote reveals that it did. It knows perfectly well that some insurance companies defend arbitrations on the cheap, gamble on getting a good result anyway, appeal if they don’t get one, and only then get serious about the defense. The footnote approves of the practice: “For example, some expert witnesses may rightly be perceived as overkill at some arbitration hearings.” Read that as “any” expert and you have the script some companies follow (not all, by any means, but too many – and all are happy to go that route unless counsel talks them out of it). Apparently we’ve forgotten the days when defendants didn’t bother even to show up for arbitration and the rules had to be re-written. Now, showing up not to defend the case but just to do some discovery is good enough.

This was needless. The court mentions but puts no weight on the fact that these Plaintiffs have themselves to blame. In a joint pretrial memorandum filed after appeal the parties both proposed a long period of “expert discovery.” (Plaintiffs don’t seem to have gotten upset about that until the trial court wrong-footed them by giving them a trial date five months earlier than they wanted.) This was a waiver case: even assuming that Plaintiffs’ position is right, they waived it by agreeing to discovery beyond it. But the court doesn’t mention waiver even though an overlapping panel issued an opinion the same day (State v. Campos) talking at length about waiver in many situations and coming up with a very broad (and somewhat unsettling) rule – in essence, anybody (including the State) can waive anything. Instead, it goes out of its way to set precedent that, right or wrong, this was not the case for.

(link to opinion)