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

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PHOENIX -- Hospitals and doctors are going to 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. SB 1032 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 may have had a change of heart." Allen said her belief is not just based on wishful thinking. "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 the measure was 6-1, with two of the three Democrats in support. Sen. Amanda Aguirre, D-Yuma, said she wants to convince 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 different 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 that the doctor committed malpractice. This measure would bar recovery unless the patient could prove by "clear and convincing evidence" that the care provided to them did not meet professional standards expected in that situation. After Napolitano vetoed the measure she created a special 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. 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 that 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 docs in that state. Michael Christopher, chief of staff of St. Joseph's Hospital and Medical Center in Phoenix, said fears by foes of the bill of patients not being able to sue are unwarranted. He noted that lawmakers gave similar protections two decades ago to obstetricians and others who deliver babies under emergency situations. "There were gloom and doom predictions," Christopher said of that measure. "They were wrong then. And they're wrong now." In her veto message last year, Napolitano questioned whether it is constitutional to impose new hurdles on malpractice victims. She cited a letter sent to her by five former state Supreme Court justices, both Republican and Democrat. That letter was signed on behalf of all five by former Chief Justice Stanley Feldman, now back in private practice as a trial attorney. But it clearly was prepared in conjunction with the Arizona Trial Lawyers Association, of which Mills is a former president: Feldman attached that group's position paper in opposition.