Many of the potential cases we consider relate to care in the Emergency Room. These are challenging cases in part because the Arizona legislature imposed a requirement that such cases be proven by “clear and convincing” evidence, and at least one Arizona court has added to the difficulties surrounding this standard.
First of all, what is the clear and convincing standard. The normal burden of proof in civil cases is called “preponderance of the evidence”. This means that the plaintiff has the burden of proof to establish the case by the greater weight of the evidence. As we tell juries, this simply means that the plaintiff has to prove the case by just over 50%.
It is the least stringent standard of proof. For example, in criminal cases, the burden of proof for the state to convict a criminal defendant is “beyond a reasonable doubt”. This means that a reasonable person would have no reason to doubt the defendant's guilt.
In ARS 12-572, the Arizona legislature required that cases against most ER providers must be established by “clear and convincing” evidence. Unlike “preponderance of the evidence” (greater weight of the evidence), “clear and convincing” means the plaintiff must persuade the jury that his or her claim is “highly probable”. In essence, “Clear and convincing” is in between “preponderance of the evidence” and “beyond a reasonable doubt”.
In the recent case of Henke v. Hospital Development, 1CA-CV 23-0661 (October 8, 2024) (unpublished opinion), the Arizona Court of Appeals for the first time required the plaintiff's experts to parrot the language of ARS 12-572.
This ruling is highly problematic. The plaintiff is required in a medical malpractice case to produce experts to testify there was malpractice and that such malpractice caused the injury or death. The plaintiff in Henke did that.
The problem for the Henke court was that the plaintiff's experts couched their opinions in terms of “reasonable degree of medical probability”, not “certainty” or “highly probable”.
The problem here is that it is for the jury to decide whether the evidence meets the required burden of proof. Normally, witnesses, experts or otherwise, do not get to tell the jury if the evidence meets the standard of proof.
In addition, it has always been the case that expert witnesses do not need to state “magic language” for their testimony to be considered. Rather, you look at the totality of their testimony. This case improperly requires magic language.
This case is an unpublished opinion in Arizona and has no binding effect on other courts considering malpractice cases. The case is on appeal to the Arizona Supreme Court, but it is not clear the Supreme Court will accept the appeal.
ER cases present a myriad of challenges and now another obstacle may be added.
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