Allen tries again with medical malpractice reform

By Luige del Puerto

There is no mistaking the emphasis that can be drawn from the name of a new Arizona Senate committee announced early in December: Healthcare and Medical Liability Reform.

Last year, that panel was simply called the Senate Health Committee.

For the last several years, the chairwoman of the Health Committee, Sen. Carolyn Allen of Scottsdale, has tried to pass tort reform legislation aimed at raising the bar of proof in medical malpractice cases, a move that critics say would make it virtually impossible to sue physicians for mistakes made in emergency rooms.

Allen was not consulted about the name change, but it was as if there was a meeting of the minds between her and Senate President-elect Robert Burns, who renamed the committee that was previously known as simply Senate Health.

What’s interesting is that the two long-time state lawmakers do not always agree on major issues.

In any case, the committee’s renaming indicated the direction that Burns wants the Arizona Senate to take. He also created the Education Accountability and Reform Committee, which will have under its fold both the K-12 and higher education committees.

It appears that Burns’ emphasis is on reform, and it suits Allen’s goals just as well.

Allen wasted no time in introducing S1018, which raises the bar of proof to “clear and convincing� evidence in emergency room medical malpractice cases.

Lawmakers actually passed similar legislation in 2006 — only to be vetoed by Gov. Janet Napolitano. But the political dynamic has changed since the Nov. 4 election. There are more Republicans in both the House and the Senate, and Napolitano is set to be replaced by Republican Jan Brewer, who is serving as secretary of state.

There are other signs that the bill may have more support than in the past. The Arizona Chamber of Commerce and Industry, for instance, has decided to make the medical malpractice legislation a priority. The group is expected to lobby intensely for its passage.

In addition, some physicians will be joining the Legislature this upcoming session, and Allen can look to them for support. One of them, Rep. Eric Meyer, a Democrat from Phoenix, backs the legislation. A former emergency department director, his support will be helpful to earn bipartisan cooperation.

Another good sign for Allen: Brian McNeil, with whom she has worked closely in the past on welfare-reform legislation, is joining Brewer’s team as her deputy chief of staff for operations. McNeil served as policy adviser for former Gov. Fife Symington and as director of operations and economic adviser for the Arizona Senate.

“Brian McNeil and I go back a long way,� Allen said. “Brian and I worked on a welfare reform package for Governor Symington.�

Allen said McNeil called her recently to touch base.

Some bills take years to pass and others take longer to be signed into law, but Allen, a Republican from Scottsdale, is hoping to achieve both in the upcoming legislative session, which begins Jan. 12. Allen filed S1018 on Dec. 23 to raise the bar of proof for medical malpractice cases in emergency rooms — her fourth try in as many years.

In 2006, Napolitano vetoed a similar bill. Allen pushed the measure in 2007 as well, but it failed to reach the governor’s desk. The senator also introduced the legislation in 2008, only to give it up later to be used as a vehicle for a strike-through amendment.

Referring to the renaming of the health committee, Allen said the panel’s scope appeared to have been expanded to include medical tort reform.

“There is a whole new world down (at) the Legislature now. There are more Republicans,� Allen said. “Republicans by and large tend to be supportive of tort form. With the potential passing of the guard on the Ninth Floor to a Republican, we might have a better opportunity to have it passed and signed.�

AZ emergency system: D+

Recently, the American College of Emergency Physicians, which grades states on criteria ranging from disaster preparedness to medical liability, handed down a D+ to Arizona’s emergency medical system.

The state’s low grade ranks it 45th in the nation.

The report triggered renewed calls to pass the medical malpractice bill.

“I am asking for one sentence to be changed,� said Allen, “from preponderance of evidence to clear and convincing evidence.�

The hope is that the change will contribute to an environment that can lure doctors to practice in emergency rooms in Arizona.

“Some of them don’t like the hours, but I believe we should certainly give it a very full go of trying to encourage doctors to come back to the emergency room and not be so fearful about lawsuits because they see people they have never seen before in their lives,� Allen said. “They are doing their very best under the very toughest of circumstances, and this report that came out proves that Arizona needs to have something like this legislation to see if we cannot lure doctors back to the emergency room.�

Allen faced a tough battle in the last three years, and trying to get the bill passed this time around, even with what appears to be a favorable climate, may not be an easy task.

The Arizona Trial Lawyers Association, which has opposed the legislation in past years, is expected to push back hard.

“What it does is that it raises it to such a high standard that it pretty much eliminates victims’ (ability) from filing lawsuits, from being able to recover any damages,� said Jon Hinz of Fairness and Accountability in Insurance Reform. “It was a terrible bill the last few years, and that is why it didn’t get through. And it is still a terrible bill.�

“Doctors are having a tough time. I understand that,� he added. “But this doesn’t eliminate or make life easier for the doctors except for the bad doctors. That is who it protects.�

The argument that the bill would lure doctors back to the emergency room is “silly,� he said. “The reason they don’t go to the emergency room is because they are not being paid, and the reason that they are not in the rural areas is because they are in Scottsdale.�

But Hinz acknowledged his group is in for a tough fight.

A source close to the trial lawyers’ community agreed that the situation is bleak as far as stopping the legislation.

“Once the name of the committee came out, we knew we were going to have our work cut out for us,� the source said, speaking on background because he was not in a position to discuss the subject on record.

“I don’t think we can beat it. We know the numbers,� the source said.

The situation breaks down like this: Doctors are now in the House that weren’t there before: Meyer and Matt Heinz of District Tucson. In the meantime, some of those who voted “no� on the measure in previous sessions won’t be back this year. The source mentioned Rep. Eddie Farnsworth of Gilbert, Rep. Theresa Ulmer of Yuma, and Sen. Karen Johnson of Mesa, among others. Senate President Tim Bee of Tucson, who also voted “no,� is term-limited and also won’t be rejoining the Senate in 2009.

Support for the legislation in the Senate in previous sessions has been slim but solid. The Senate has consistently passed the measure. It is in the House where it has run into trouble.

In 2007, the measure passed narrowly in the Senate but failed in the House twice. Allen said some Democrats had told her they would support the measure on the floor. But Napolitano made calls, which apparently swayed them to vote otherwise, according to Allen. “A couple of them who had promised me they would vote came and told me, ‘We’re sorry senator, but we were basically intimidated by the governor’,� Allen said.

Napolitano “won’t be making those calls this year,� Allen said.

Business group weighs in

In a commentary, Glenn Hamer, president and CEO of the Arizona Chamber of Commerce and Industry, referred to the report released by the American College of Emergency Physicians.

“As the rankings point out, if you are critically ill and in need of emergency care, few states are worse than Arizona,� Hamer wrote. “Across the state there is a significant physician shortage with more than half of the state’s emergency departments in need of on-call neurosurgeons, hand surgeons, vascular surgeons, plastic surgeons, ENT specialists, and gastroenterologists. According to the Arizona Hospital and Healthcare Association, these potential ER physicians most often cite liability concerns as the reason they opt out of on-call rosters.�

Hamer said a strong first step would be to enact Allen’s medical malpractice legislation.

The political climate appears ripe to get the measure to the finish line, according to the chamber official.

“The dynamics have changed,� he told the Arizona Capitol Times. “Clearly, we believe when you look at the incoming Legislature it will be one where an idea like this should pass.�

Part of that change in the political landscape as far as this legislation is concerned is Meyer, who made state history this last election by becoming the first write-in candidate to receive public funding and advance to the state Legislature.

Meyer received his medical degree from the University of Arizona. He returned to Arizona with his family more than a decade ago after serving as the emergency department director of a hospital in Portland, Oregon. He has quit his practice and now serves on the Scottsdale School District Governing Board.

“When you are working in the emergency department, if you can’t get on-call physicians to come in and work on the patients who come into the emergency room, it makes it an undesirable place to work,� Meyer said.

Anything that can be done to support emergency room physicians makes a big difference, he said.

Many other states have enacted similar legislation, he said.

“We have a shortage of emergency room physicians in our state and so to level the playing field, this is one of the things that can be done to hopefully attract and retain emergency room physicians in Arizona,� he said.

Is the medical malpractice environment a consideration for doctors as far as where to practice?

“I interviewed a lot of people,� Meyer said. “They asked about the coverage that you have in the emergency department. So it definitely applies. Is it the first thing on the list? Those things are different for different physicians. Some of them are concerned about the salary (and) some of them are concerned about the work hours.

“But, you know, if you don’t have nursing staff and coverage, it doesn’t make a desirable place to come and work.�

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