Arizona Supreme Court Tightens Up the Eligibility Requirements for Experts Testifying in Medical Malpractice Cases

Baker v. University Physicians Healthcare, 296 P.3d 42 (2013)

Under Arizona statute, A.R.S. § 12–2604, experts testifying in medical malpractice actions must specialize “in the same specialty” as the defendant doctor (when the allegedly negligent treatment of the patient falls within that specialty).

In Baker, the plaintiff attributed negligence to a board-certified pediatric hematologist-oncologist who treated his seventeen-year-old daughter for blood clots. The plaintiff claimed that his daughter died as a consequence of that medical negligence. His expert witness was a board-certified physician specializing in internal medicine as well as in hematology and medical oncology. The defendant received his certification from the American Board of Pediatrics. The expert witness’s certification, on the other hand, came from the American Board of Internal Medicine. Both Boards affiliate to the American Board of Medical Specialties (“ABMS”).

The Supreme Court of Arizona held that the difference between the doctor’s and the witness’s certifications makes them different, rather than “same,” specialists. Moreover, the Court decided that the statutory “same specialty” requirement refers to sub-specialties as well, and that specialties and sub-specialties need not be recognized by ABMS. All that needs to be shown to establish a “specialty” is that the defendant doctor was licensed to deliver the treatment in question. The Court consequently ruled that the plaintiff’s expert was not eligible to testify against the defendant and approved the summary dismissal of the suit.

The plaintiff also challenged the statute on constitutional grounds. He complained that the statute is “special law” that unduly restricts medical malpractice victims’ access to courts. The Court, however, upheld the statute’s constitutionality after finding it to be sufficiently general and non-discriminatory. The Court ruled in this connection that the statute “conceivably furthers a legitimate interest by decreasing medical malpractice insurance rates and the reluctance of physicians to practice in Arizona.”

One can’t argue with the Court’s understanding of Arizona’s Constitution. The Court’s stringent interpretation of “specialty,” on the other hand, is deeply problematic. This interpretation substantially reduces the pool of eligible expert witnesses, which expands the doctors’ opportunity to form the infamous conspiracy of silence—an implicit mutual undertaking of the narrowly defined specialists and sub-specialists not to testify against each other. Reduction of medical malpractice insurance rates should be among the economic consequences of this ruling, as many negligent doctors will now go scot free. Whether this reduction should come at the expense of medical malpractice victims is, of course, an altogether different question. The Court may have felt that victims should pay this price to motivate doctors to practice in Arizona, but its decision might encourage suboptimal care as well.