Partial lawsuit shield for ER docs gets new life in Senate committee

By Howard Fischer
Capitol Media Services

Hospitals and doctors will get a second chance to convince Gov. Janet Napolitano that a measure to protect them from lawsuits will result in more doctors in emergency rooms.

The Senate Health Committee on Thursday approved legislation to make it more difficult for someone injured due to a medical mistake in an emergency room to successfully sue for damages. The bill now goes to the full Senate.
Lawmakers approved an identical measure last session, only to see it vetoed.

But Sen. Carolyn Allen, R-Scottsdale, said she believes the outcome will be different this year. Allen, sponsor of the measure, said she has “very high hopes that she (Napolitano) may have had a change of heart.”

Allen said her belief is not just wishful thinking.

After Napolitano vetoed the measure, she created a task force to study how to deal with the shortage of emergency-room physicians. One of its findings — adopted by a 13-5 vote — was to make this change.

“I have had many of her supporters that have indicated to me that … I might get a different response,” said Allen. And Allen said she intends to take her case directly to the governor now that the measure has cleared the committee, which she chairs.
Allen will have some wind at her back: The vote for SB 1032 was 6-1, with two of the three Demo-crats in support.

Sen. Amanda Aguirre, D-Yuma, said she wants to persuade the Democratic governor to sign the bill this year. And Sen. Meg Burton Cahill, D-Tempe, said it is “a step that will help” the shortage of emergency-room doctors.

Only Sen. Paula Aboud, D-Tucson, refused to go along. “I don’t feel comfortable doing this on the backs of the rights of the injured,” she said.

Whether Napolitano will see things differently this year is an unsettled question: Gubernatorial press aide Jeanine L’Ecuyer declined to say what her boss would do if and when the measure reaches her desk again.

At the heart of the question is whether changing the liability laws will make more doctors — especially specialists — willing to practice in emergency rooms.

Under current law, a patient who alleges an injury needs to prove only that it was more likely than not the doctor committed malpractice. This measure would bar recovery unless the patient could prove by “clear and convincing evidence” that the care provided did not meet professional standards expected in that situation.

JoJene Mills, a trial lawyer from Tucson, said this legislation ignores all of the other findings of why doctors don’t want to practice in emergency rooms. For example, she said many do not want to be on call at all hours.

Charles Finch, an emergency room doctor at Scottsdale Healthcare, acknowledged fear of lawsuits is not the only issue. But he said similar legislation approved in Texas has gone a long way to alleviating the problem of available ER doctors in that state.
In her veto message last year, Napolitano questioned whether it is constitutional to impose new hurdles on malpractice victims.
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