Arizona Supreme Court ruling benefits doctors - East Valley Tribune: East Valley Local News

Arizona Supreme Court ruling benefits doctors

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Posted: Friday, March 13, 2009 5:55 pm | Updated: 3:08 am, Sat Oct 8, 2011.

In a major victory for doctors, the Arizona Supreme Court ruled Friday that lawmakers can limit who can testify as expert witnesses for patients who sue.

In a 4-1 decision, the justices acknowledged that they, and not legislators, generally have the constitutional right to decide the rules that govern how trials are conducted. And that, they said, also includes rules of what evidence is and is not admissible.

But Justice Andrew Hurwitz, writing for the majority, said the Legislature is entitled to enact "substantive'' policy changes governing what people who file civil suits must prove to win their cases.

That conclusion is a major vindication for the doctors who convinced lawmakers to enact the 2005 law in the first place. The issue was so crucial for them that separate legal arguments were filed with the high court on behalf of the Arizona Medical Association and various other medical groups from osteopaths to gynecologists and anesthesiologists.

In order to win a malpractice case in Arizona, a patient or family member must prove that the care provided by a doctor fell below the accepted standard. And that requires jurors to be told by an expert witness - someone competent in the field - what is the standard of care.

The 2005 statute at issue spells out that anyone who wants to testify as an expert witnesses against a doctor in a malpractice case not only has to be licensed as a health care provider but also must be a specialist in the same area as the defendant and actively practicing or teaching in that area.

Proponents of the law argued that jurors can be swayed by what essentially are professional expert witnesses who are paid to testify on behalf of patients. The legislation, by limiting who can testify, sought to limit that.

This case involves a 2004 claim by Laura Seisinger that Dr. Scott Siebel committed malpractice when he administered a spinal epidural to her. As required, she provided the name of a doctor who would testify as her expert.

The doctor's lawyer objected, saying that person did not meet the requirements of the 2005 law. When Siebel did not provide a different expert, the trial judge threw out the case.

In a ruling last year, the Court of Appeals declared the statute unconstitutional because the rules of evidence enacted by the Supreme Court say only that an expert witness must be qualified "by knowledge, skill, experience, training or education." That the appellate judge said, made the additional practice or teaching requirements in the statute unconstitutional.

But Hurwitz, in Friday's decision, said the Supreme Court has the last word only when lawmakers seek to enact a rule that governs court procedures. He said legislators generally remain free to determine - and modify - laws about when people can and cannot sue.

Appellate Judge Peter Eckerstrom, sitting in on the high court decision, said he believes only the Supreme Court has the right to decide who qualifies as an expert witness. He said that makes the 2005 law "an unconstitutional encroachment by the Legislature" on the powers of the judicial branch of government.

The lawsuit would have been avoided if then-Gov. Janet Napolitano had vetoed the legislation. The former governor said at the time she thought it was probably unconstitutional, saying "our courts, not the Legislature, are charged with making the expert witness determination."

But Napolitano, an attorney, said she decided to let the issue play out in the courts rather than use her veto.

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