The Arizona Supreme Court rules that the pandemic statute, A.R.S. § 12-516(A), which provided immunity for healthcare providers from negligence but not gross negligence claims, is unconstitutional. Judge Beene outlines the opinion in an easy-to-follow manner, but a little heavy on citations. Since negligence claims were protected under common law, and the entire “negligence” action is displaced, this constitutes an abrogation, not regulation, under the anti-abrogation clause, art. 18 sec. 6. Gross negligence requires an additional showing that the defendant acted with reckless indifference and adds a quasi-intent element. The part of the statute that increases the burden of proof to “clear and convincing evidence” aligns with this distinction and is severable. (That heightened burden coupled with the standard of care under the pandemic will surely be high hurdles for plaintiffs to overcome.)

Judge Bolick dissents for the same reasons he has previously outlined in other cases: art. 18 sec. 6 does not have the meaning attributed to it. As Professor Roger Henderson discussed in a 1993 law review article, the anti-abrogation clause was intended to preserve specific tort actions by employees against their employers. That is why it is included in a section on labor law, and not Arizona’s Declaration of Rights. Moreover, in Justice Bolick’s view, abrogation only applies when the cause of action is entirely eliminated, and leaving a cause of action for gross negligence is not a complete abrogation. He may be right, but the wrong turn was taken long ago. He concludes by agreeing with the majority on the issues raised by the State and the Chamber of Commerce. He scolds them for defending the statute based on inherent emergency powers under the Arizona Constitution or derivative immunity.

link to opinion