Recent Arizona Appellate Decisions of Note to Providers

With change, breaking news, and uncertainty dominating the legal concerns of health care providers on a federal level, it remains important to review and refresh on state-level concerns and legal rules. This is especially true for those currently or frequently involved in health care litigation.

In particular, Arizona appellate courts issued three decisions early this year of which health care providers may wish to take note.

First, in Stafford v. Burns, 756 Ariz. Adv. Rep. 34 (App Div. 1 January 17, 2017), the Arizona Court of Appeals held that the heightened standard of proof for claims against a health care professional set forth in A.R.S. s 12-572(A) (“clear and convincing evidence” instead of a preponderance of the evidence) applies broadly “whenever the acts or omissions the plaintiff contends were deficient were provided in the course of evaluating and treating a patient in a hospital emergency department.” The heightened standard of proof of proof under the statute applies when services are provided in compliance with the federal Emergency Medical Treatment and Active Labor Act. The appellant had argued for a narrower interpretation that would have ratcheted down the burden of proof if a patient was shown after screening and/or treatment possibly not to have an emergency medical condition or to have stabilized sufficiently for transfer.

The appellate court also declined to countenance the appellant’s argument that the trial court should have held a Daubert hearing to determine the reliability of expert testimony about information extrapolated from post mortem gastric methadone levels. Noting that trial courts are not required to hold such hearings (instead they “may” do so), the Court of Appeals found no abuse of discretion in the trial court’s decision not to hold a hearing when “both parties presented lengthy and detailed pleadings, cited supporting medical literature, and attached affidavits containing the specific opinions of their other disclosed medical and pharmacological experts.”

Second, in Spring v. Bradford, 756 Ariz. Adv. Rep. 40 (App. Div. 1 January 12, 2017), the Court of Appeals held that the evidentiary rule on the exclusion of witnesses (Ariz. R. Evid. 615) does not automatically exempt expert witnesses from exclusion. Instead, trial courts may exercise discretion under subsection (c) of the rule to allow an expert witness to observe other testimony, or review transcribed testimony. A defendant doctor’s counsel provided trial testimony transcripts to his expert witnesses without seeking an exemption from the rule. Due to the limited amount of prejudice, however, a jury instruction–rather than striking the defense experts’ testimony–was the appropriate remedy fashioned by the trial court, which ruling the Court of Appeals affirmed.

Third, the Arizona Supreme Court issued the State v. Nissley decision on February 1, 2017. Under A.R.S. s 28-1388(E) Arizona provides a medical blood draw exception to the warrant requirement in criminal cases, meaning medical personnel must “provide upon request a portion of any blood sample taken from a patient when the [transporting or arresting] officer has probable cause to believe that the patient had been driving under the influence of alcohol or other drugs.” The Court noted that the “exception applies only when the sample is drawn for medical reasons and exigent circumstances exist.”

In Nissley, the suspect contended that medical personnel rendered treatment against his will. The Arizona Supreme Court held that in such a situation “the state is required to prove that a suspect expressly or impliedly consented to medical treatment or that medical personnel acted when the suspect was incapable of directing his or her own medical treatment.” While it is standard of care, and not future litigation concerns, that directs the actions of emergency department providers, such providers may wish to be aware that subpoenas for testimony or documents regarding patient consent forms and related records may follow-on in instances of facts like those in Nissley.

Knowledgeable counsel, familiar with health care providers’ needs and concerns at both the federal and state levels, may be able to assist providers and others in the health care space in determining the impact of new decisions like those above, as well as any additional changes in the applicable law.