By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The state Court of Appeals has struck down a bid by Republican lawmakers to immunize doctors and hospitals from claims they acted negligently in treating patients during the COVID outbreak.

In a unanimous decision, the three-judge panel said the 2021 law runs afoul of a provision of the Arizona Constitution that clearly spells out lawmakers cannot revoke the right of anyone to recover damages for injuries. That same language bars any statute that caps the amount of damages someone who sues successfully can recover.

The new ruling most immediately affects anyone who claims they were injured by a medical provider furnishing care for virus suffers between March 11, 2020, when Gov. Doug Ducey declared a state of emergency and March 30, 2022, when he terminated it. Pushed by a lobbyist for the company that insures most Arizona doctors, it was designed to provide them protection from lawsuits.

It is not immediately known how many malpractice cases were filed during that time period. But if nothing else, unless the ruling is overturned it will mean there is no similar protection for doctors and hospitals the next time a governor declares a public health emergency.

But the ruling could have far broader implications.

Another provision of the measure crafted by then-Sen. Vince Leach, R-Tucson also provided a similar legal shield for any business from being sued for negligence for failing to protect its customers from COVID. Ditto for landlords, educational institutions, property owners, nonprofit organizations, religious institutions and the state and local governments.

And given this new appellate court ruling, that immunity also would appear to have the same constitutional problems.

None of this should come as any surprise to the lawmakers and lobbyists who pushed this through in 2021.

Tim Fleming, attorney for the House Rules Committee that reviews legislation for constitutionality, told panel members at the time the measure likely would not survive a legal challenge. The GOP lawmakers on the committee, however, ignored his advice and approved it anyway.

The case involves Robin Roebuck, who had a heart transplant in 1993 and a second heart transplant and kidney transplant at Mayo Clinic in 2017.

He was hospitalized at Mayo on April 20, 2020, after presenting with COVID symptoms. Given his history, he was placed under the care of the clinic’s congestive heart failure team.

Roebuck developed pneumonia and was given supplemental oxygen. But an electrocardiogram confirmed his heart was “doing pretty well” and the decision was made solely to manage the COVID.

A day later a doctor ordered an arterial blood gas test, a more accurate measure of determining the oxygen in a patient’s blood. That revealed very low oxygen.

The following day he developed complications from the test and underwent surgery on his right hand, forearm and wrist. He was left with diminished strength and use of his right hand and arm and significant scarring.

Roebuck sued, alleging the test was negligently performed. But the case was thrown out based on the 2021 law — which lawmakers made retroactive to March 2020 — which said such lawsuits related to COVID during a declared emergency can move forward only if there is an allegation of gross negligence, something far more hard to prove than the normal negligence he alleged.

That law was adopted on a party-line vote by the Republican-controlled Legislature after it was backed by dozens of lobbyists for various business and medical organizations who told lawmakers they were afraid that they could wind up in court for actions they took related to the pandemic.

“The COVID pandemic has presented a once-in-a-generation challenge from both the public health and economic perspective,” testified Courtney Coolidge of the Arizona Chamber of Commerce and Industry. What it also has brought, she said, are “extraordinary legal uncertainties.”

Mike Low, lobbying for the Mutual Insurance Co. of Arizona, which provides malpractice coverage for most doctors, said Senate Bill 1377 is reasonable because it would require anyone filing suit to provide “clear and convincing evidence.” That is a higher standard than what normally exists in civil cases, which says jurors decide based on a “preponderance of the evidence,” meaning whether it is more or less likely that someone was negligent.

Appellate Judge Maria Elena Cruz, writing for the three-judge panel, said there was nothing wrong with that part of the bill. She said lawmakers are free to raise the burden of proof in any cases.

But this measure, Cruz said, goes farther by totally eliminating the right of anyone who is the victim of ordinary negligence without any legal options at all.

“The Legislature may regulate the cause of action for negligence so long as it leaves claimants reasonable alternatives or choices for bringing their claims,’’ she wrote. But Cruz said SB 1377 “leaves no such alternative available to those injured by the negligence of medical professionals in providing COVID-related treatment.”

And she pointed out that, in doing away with any remedy for normal negligence, that left patients like Roebuck with only one option: try to prove that the actions of the medical professional were grossly negligent, a far more difficult burden. That, Cruz said, would require not just a showing that the actions of the professional were merely negligent — meaning they did not act in a way that a prudent person would under the circumstances — but that the professional was guilty of “gross, willful or wanton conduct,” a far higher burden on a plaintiff to prove.

“(The Arizona Constitution) does not permit the Legislature to wholly extinguish a particular type of claim available at common law even if alternative causes of action remain to injured claimants,” Cruz wrote.

Leach, defeated in the 2022 Republican primary but looking to regain his old seat in 2024, told Capitol Media Services he would not comment on the ruling until he had a further chance to study the ruling.

There was no immediate response from attorneys who defended Mayo Clinic and the doctor who was sued for a procedure he performed there.