Ariz. high court validates standards for expert witnesses in liability cases

Meanwhile, Georgia's noneconomic damage cap likely will head to that state's Supreme Court after a trial court declared the award limit unconstitutional.

By Amy Lynn Sorrel — Posted April 6, 2009

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Physicians won one round and lost another in their fight to preserve medical liability reforms.

The Arizona Supreme Court in March upheld the constitutionality of a 2005 law establishing minimum qualifications for expert witnesses who testify in medical liability cases. The high court rejected arguments from the state trial bar that it was up to the courts -- not lawmakers -- to set rules governing expert witness testimony and that the statute violated the separation of powers between the legislature and the judiciary.

Instead, justices in a 4-1 opinion found that the expert requirements were not merely a procedural matter pertaining to how judges conduct trials -- an area traditionally left to the courts. Rather, the expert qualifications formed a "substantive component" of establishing proof in a medical liability claim in the first place -- an area the legislature was free to address, the court said.

"Although we maintain plenary power over procedural rules, we do not believe that power precludes the legislature from addressing what it believes to be a serious substantive problem -- the effects on public health of increased medical malpractice insurance rates and the reluctance of qualified physicians to practice here -- by effectively increasing the plaintiff's burden of production in medical malpractice actions," the opinion states.

Because Arizona's constitution prohibits any type of cap on damages in liability cases, "this is a very important decision for us," said Chic Older, Arizona Medical Assn. executive vice president.

ArMA and the Litigation Center of the American Medical Association and State Medical Societies jointly filed a friend-of-the-court brief in the case. They urged the Arizona high court to uphold the law, which applies to both plaintiff and defense experts.

"We've embarked on incremental tort reform, so when we get reasonable legislation, it's important to us, maybe more so than in other places with caps," Older said.

The expert witness rules have helped weed out nonmeritorious lawsuits and contributed to a 20% drop in case filings, as well as an overall 11% decline in liability insurance premiums, since 2005, according to Arizona medical society data.

But trial lawyers contend that the rules pose a barrier for plaintiffs in bringing legitimate claims.

"What this statute does is make it harder for plaintiffs to find experts willing to testify against their colleagues," said David L. Abney, a co-chair of the Arizona Trial Lawyers Assn.'s amicus committee. "The function of a trial judge is to be the gatekeeper, and trial judges are in the best position to weigh the qualifications of an expert in aiding a lay jury in understanding the expert testimony in a case."

Georgia cap voided again

Meanwhile, Georgia's noneconomic damage cap hangs in the balance for the second time in the past year.

Doctors are gearing up for a state Supreme Court battle after a trial court declared the $350,000 award limit unconstitutional. A Fulton County trial judge on Feb. 9 said the 2005 law arbitrarily restricted patients' equal protection rights and access to a jury trial. The decision affirmed a $1.2 million jury verdict against a surgical practice.

Physicians and trial lawyers expect an appeal, which would send the issue to the high court.

Medical Assn. of Georgia officials said the cap has been instrumental in lowering medical liability insurance premiums and keeping ob-gyns and general surgeons in the state. If the cap were to disappear, so would those access-to-care gains, said MAG General Counsel Donald Palmisano Jr.

The medical association plans to file a brief defending the cap in the Supreme Court. The Georgia Trial Lawyers Assn. is preparing to submit an opposing brief in support of the trial court ruling.

Doctors fended off an earlier challenge after a trial court in April 2008 voided the cap on similar grounds. The case was settled last October -- just days before the high court was scheduled to hear the matter -- and left the award limit intact.

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Case at a glance

Is a law requiring minimum qualifications for medical expert witnesses constitutional?

The Arizona Supreme Court found the rules formed an important part of establishing a medical liability claim and did not violate the constitutional separation of powers between the legislature and the judiciary.

Impact: Physicians say the ruling validates a significant tort reform measure aimed at eliminating frivolous lawsuits. Plaintiff lawyers say it will deter legitimate claims.

Laura Seisinger v. Scott Siebel, MD, Arizona Supreme Court

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