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    What Doctors in Arizona need to Understand about the Marketplace

    Medical malpractice insurance in Arizona is expensive, and it doesn’t seem likely to get any more affordable in the near future. This is due, in large part, to the state’s constitution, which expressly prohibits placing any “cap” on recoverable damages, and a public traditionally hesitant to narrow the scope of medical liability for its physicians.

    Arizona is one of the few states where its constitution restricts the ability of its legislative branch to pass tort reforms. There are three specific sections to its constitution that explicitly void the legislature’s ability to pass laws restricting access to the court system and/or compensation for injury as determined by a jury. The sections are as follows:

    • Section 23 of Article II provides that “the right of trial by jury shall remain inviolate.”
    • Section 31 of Article II states “no law shall be enacted in this State limiting the amount of damages to be recovered for causing the death or injury of any person.”
    • Section 6 of Article XVIII states that “the right of action to recover damages for injuries shall never be abrogated, and the amount shall not be subject to any statutory limitation.”

    While the constitutional language is rather ironclad when it comes to capping damages, and the state’s judicial branch has repeatedly interpreted that language as giving Arizonans an almost unlimited right to sue, it has not stopped lawmakers from attempting to improve the state’s medical malpractice insurance climate through the legislative process. At several points in recent history, Arizona lawmakers have tried to amend the state constitution in order to give the assembly the ability to implement tort reforms, including the much-sought-after cap on non-economic damages. Any constitutional amendment requires the ratification of the Arizona citizenry by ballot initiative. In 1986, 1990 and 1994, voters rejected propositions to change the constitution’s language protecting a plaintiff’s right to sue and recover damages.

    Proposition 103, the most recent ballot initiative, proposed an amendment to the Arizona constitution relating to civil justice reform, amending Article II, section 31; Article XVIII, section 5; and Article XVIII, section 6. In brief, the proposition would have allowed the legislature to limit the amount of damages to be recovered for causing the death or injury of any person. After heated public debate, Arizona voters ultimately rejected the tort reform referendum, leading many to believe that enacting non-economic damage caps in Arizona is an impossibility.

    Tort reform advocates have now adopted a new, limited and incremental approach to modifying the rules of the Arizona court system. An example of this incremental philosophy can be seen in the 2010 passage of the Admissibility of Expert Opinion Testimony Act. This bill adopts the stringent Daubert standard for admitting expert witness testimony and expert evidence, requiring the courts to consider four factors when examining the merits of expert testimony: (1) whether the expert’s technique or theory can be tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory; and (4) whether the theory or technique has been generally accepted in the relevant field. According to its advocates, the Daubert standard decreases likelihood of “junk science” being presented to juries and affecting the outcome of a trial. It also serves as a filter intended to screen out meritless lawsuits prior to reaching trial. The constitutionality of the new law is currently being litigated in several counties around the state, but many in the medical community are hopeful it will withstand challenge.

    Arizona is a lawsuit friendly state, and acquiring medical professional liability insurance is an expensive proposition. For this reason, it is crucial to your medical practice’s success that you work with a broker that has access to all of the state’s major medical malpractice insurers and is able to shop your coverage for the best terms at the best price. Click to request your free Arizona Medical Malpractice Insurance quote.

    This write-up of Arizona was put together by Michael Matray, the Editor of the Medical Liability Monitor

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