Roebuck v. Mayo Clinic, No. CV-23-0262-PR (September 12, 2025)  (J. Beane) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2025/CV230262PR.pdf

A.R.S. § 12-516(A)'S BAR OF ORDINARY NEGLIGENCE CLAIMS REGARDING HEALTHCARE PROVIDED FOR PANDEMIC RELATED MEDICAL CARE WHILE ONLY ALLOWING CLAIMS FOR WILLFUL MISCONDUCT AND GROSS NEGLIGENCE VIOLATES ARIZONA CONSTITUTION'S ANTI-ABROGATION CLAUSE Art. 18,  sec. 6 /STATUTE'S ESTABLISHMENT OF A BURDEN OF PROOF REQUIREMENT OF "CLEAR AND CONVINCING" EVIDENCE IS SEVERABLE FROM THE REST OF THE STATUTE AND IS ENFORCEABLE AS IT REGULATES BUT DOES NOT ABROGATE THE CLAIM 

Plaintiff was hospitalized for COVID-19 at the defendant Mayo Clinic [Mayo]. He had a prior heart transplant so an arterial blood gas [ABG] was ordered. Plaintiff alleged the ABG test was performed negligently requiring subsequent surgery, significant scarring and diminished use of his right arm.  The Maricopa County Superior Court granted Mayo summary judgment finding plaintiffs claim was barred by A.R.S. § 12-516(A) because the test was run as part of plaintiff's COVID-19 treatment and because plaintiff alleged only simple negligence and not gross negligence or willful misconduct as required by the statute.  The Arizona Court of Appeals reversed finding the statute violated the Arizona Constitution's anti-abrogation clause. The Arizona Supreme Court reversed and remanded the superior court's ruling and vacated the court of appeals decision in part.

A.R.S. § 12-516(A) ) "provides that during a state of emergency for a public health pandemic, a health professional or health care institution that is 'providing health care services in support of' that emergency 'is not liable for damages in any civil action for an injury or death' allegedly caused by the health care provider unless the plaintiff proves 'by clear and convincing evidence' that the health care provider acted with 'willful misconduct or gross negligence.'” The anti-abrogation clause provides that “[t]he right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation” Ariz. Const. art. 18, § 6

To determine the applicability of the anti-abrogation clause the courts apply a two prong test. First the anti-abrogation clause only applies to rights of action that existed in the common law in 1912 when the Constitution was adopted. In other words, "Courts should consider whether a plaintiff alleging the same harm could have recovered damages against the same type of defendant at statehood,”  In 1912 patients were permitted under the common law to sue health care providers  for injuries caused by simple negligence, so the first prong is met.

The second prong  requires application of the "reasonable election" test to determine if the applicable legislation abrogates a cause of action or instead permissibly "reguilates" the cause of action. "Under this test, 'the [L]egislature may regulate a right of action protected by article 18, section 6, but it must ‘leave a claimant reasonable alternatives or choices which will enable him or her to bring the action.'” Wilfull conduct or gross negligence are not reasonable alternatives to a simple negligence claim because they add an element of "quasi-intent" on the part of the defendant. Accordingly, the second prong of the test is met and the statute is unconstitutional to the extent it attempts to eliminate a simple negligence claim.

    In sum, gross negligence adds a quasi-intent element by

    requiring a showing that the defendant acted with reckless indifference.

    While ordinary negligence “consists in mere inadvertence, incompetence,

    unskillfulness, or a failure to take precautions,” gross negligence “requires

    a conscious choice of a course of action, either with knowledge of the

    serious danger to others involved in it or with knowledge of facts which

    would disclose this danger to any reasonable man.” 

 However, the statute's requirement that plaintiff meet a burden of proof of "clear and convincing evidence" does not abrogate the claim, but instead regulates it so that portion of the statute is upheld.