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Torts: Medical Negligence Claims Regarding Medical Care Related to the Pandemic Preserved By Anti-Abrogation Clause of AZ Constitution Revoking Statute Eliminating Them in Favor of Gross Negligence and Willful Conduct

Posted by Ted A. Schmidt | Sep 22, 2023 | 0 Comments

Roebuck v. Mayo Clinic, No. 1 CA-CV 22-0508 (App. Div. I, September 19, 2023) (J. Cruz)

Plaintiff, a double heart transplant and single kidney transplant patient is hospitalized at the Mayo Clinic with COVID-19 symptoms. Echocardiogram established his heart was “doing pretty well” and the doctors concluded his symptoms, including pneumonia, were all related to the COVID and not his heart. 

Dr. Ashrafat at the Mayo ordered an arterial blood gas [ABG] test because Roebuck was “becoming progressively hypoxic,” and because “he was suffering from metabolic acidosis as a result of his diarrhea from COVID-19.” This test tells the doctors more about blood oxygen levels than a pulse oximeter.  This test was to also benefit the decision whether to administer a particular drug to treat the COVID. 

Complications followed the test including diminished use and strength of his right arm and hand and significant scarring. This lawsuit followed with allegations the ABG test was negligently administered causing the injuries. He did not allege “gross negligence” or “willful conduct.” The case wound its way in and out of federal court ending up in the Maricopa County Superior Court. Defendant filed a motion for partial summary judgment based upon A.R.S. § 12-516 which provided that if the governor declared a state of emergency regarding the pandemic plaintiffs bringing medical negligence claims would have to prove by clear and convincing evidence there was willful conduct or gross negligence. Ordinary negligence was excluded.  The trial court granted the motion giving plaintiff leave to refile and allege “gross negligence or willful conduct.”  He did not. Instead, pursuant to Rule 54(b) of the Arizona Rules of Civil Procedure this appeal followed. The Arizona Court of Appeals reversed and remanded.

Plaintiff raised a number of grounds in favor of a reversal including his claim there was no issue of fact regarding the purpose of the ABG, that A.R.S. § 12-516 was ambiguous, that application of A.R.S. § 12-516 to this case would require the statute be applied retroactively and a PREP Act, 42 U.S.C. § 247d-6d(a)(1); immunity claim. All of these arguments were fairly summarily rejected.

The court of appeals, however, did find that Art. 8 § 6 of the Arizona Constitution—the Anti-Abrogation Clause-- “[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 . . . .” The anti-abrogation clause protects a plaintiff's right of access to the courts and prohibits the “abrogation of all common law actions for negligence, intentional torts, strict liability, defamation, and other actions in tort which trace origins to the common law.”  The legislature may regulate common law tort actions but cannot eliminate them. Regulation is fine “as long as a claimant is left with a reasonable alternatives or choices.” For example, the court of appeals finds nothing wrong with the legislature raising the burden of proof to “clear and convincing evidence” in pandemic related medical malpractice cases. However, to completely eliminate a tort claim such as negligence is prohibited by clause. Such has been the holding regarding the right to bring a products liability claim, See Hazine v. Montgomery Elevator Co., 176 Ariz. 340 (1993) and an assault and battery claim against a doctor, Rubino v. De Fretias, 638 F. Supp. 182, 185-86 (D. Ariz. 1986).

Editor's Note: One has to now question whether A.R.S. § 12-571 (A) (nonprofit clinic), A.R.S. § 12-572 (A) ( emergency room or disaster), A.R.S. § 12-573 (A) (emergency delivery of baby) and other statutes that purport to eliminate negligence claims in favor of willful conduct and gross negligence are constitutional. Likely, we have not heard the last word. Expect the Supreme Court will ultimately weigh in here.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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