In its opinion filed on September 19, 2023, the Arizona Court of Appeals Division One (“Arizona Appellate Court”) held in an Arizona medical malpractice case in which the plaintiff alleged medical negligence in performing a medical procedure during the COVID-19 pandemic: “Because Arizona Revised Statutes (“A.R.S.”) section 12-516 does away with a patient’s right to recover damages for ordinary negligence we hold that it violates the anti-abrogation clause of the Arizona Constitution.”

Arizona Revised Statutes Section 12-516

Arizona Revised Statutes Section 12-516 provides, in relevant part:

A. If the governor declares a state of emergency for a public health pandemic pursuant to title 26, chapter 2, a health
care professional or health care institution that acts in good faith is not liable for damages in any civil action for an injury or death that is alleged to be caused by the health professional’s or health care institution’s action or omission while providing health care services in support of this state’s response to the state of emergency declared by the governor unless it is proven by clear and convincing evidence that the health professional or health care institution failed to act or acted and the failure to act or action was due to that health professional’s or health care institution’s wilful misconduct or gross negligence.

B. Subsection A of this section applies to any action or omission that is alleged to have occurred during a person’s screening, assessment, diagnosis or treatment and that is related to the public health pandemic that is the subject of the state of emergency . . . .
. . . .
E. This section applies to all claims that are filed before or after September 29, 2021 for an act or omission by a person
that occurred on or after March 11, 2020 and that relates to a public health pandemic that is the subject of the state of
emergency declared by the governor.

Background Facts

Dr. Ashraf ordered an arterial blood gas (“ABG”) test for the plaintiff. The test, which is drawn from a patient’s radial artery, measures the oxygen in the patient’s arterial blood and provides doctors with more accurate information than a pulse oximeter. Dr. Ashraf ordered the ABG test because the plaintiff had COVID-19 and was “becoming progressively hypoxic,” and because he was suffering from metabolic acidosis as a result of his diarrhea from COVID-19. In addition, Dr. Ashraf had consulted with Mayo Clinic’s infectious disease doctors who were considering giving the plaintiff a monoclonal antibody, tocilizumab, to treat his COVID-19, and ABG test results would provide necessary “additional
information that would . . . support giving the tocilizumab.” The results of the ABG test revealed that the plaintiff had very low oxygen content in his blood, warranting treatment with tocilizumab, which he was given shortly thereafter.

The next day, the plaintiff developed complications from the ABG test, was diagnosed with compartment syndrome, and underwent emergency surgery on his right hand, forearm, and wrist. The plaintiff was left with diminished strength and use of his right hand and arm and significant scarring.

The plaintiff filed his Arizona medical malpractice case, alleging that the ABG test was negligently performed. The defendants moved for summary judgment, which the trial court granted. The plaintiff appealed.

Arizona Appellate Court Opinion

Article 18, Section 6 of the Arizona Constitution, the “anti-abrogation” clause, states that “[t]he right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation . . . .” The anti-abrogation clause protects a plaintiff’s right of access to the courts and prohibits the “abrogation of all common law actions for negligence, intentional torts, strict liability, defamation, and other actions in tort which trace origins to the common law.” Because a medical malpractice action has its origins in the common law, it is protected by the anti-abrogation clause.

The Arizona legislature may regulate negligence and other common law causes of action without offending the anti-abrogation clause. However, the legislature must leave a claimant reasonable alternatives or choices which enable the claimant to bring the action. The legislature may not, under the guise of regulation, so affect the fundamental right to sue for damages as to effectively deprive the claimant of the ability to bring the action. The abrogation clause is implicated when the right of action is completely abolished.

The trial court found that § 12-516 did not abrogate the plaintiff’s cause of action because it does not bar his right to recover damages, but instead requires him to prove a ”higher evidentiary standard in order to prevail by requiring that he prove by clear and convincing evidence that [Mayo Clinic defendants] acted with willful misconduct or gross negligence.”

The Arizona Appellate Court stated: “Section 12-516 does more, however, than simply raise plaintiffs’ burden of proof for COVID-related medical malpractice claims. Instead, the statute bars all claims for ordinary negligence arising out of the provision of COVID-related medical treatment … § 12-516 leaves no such alternative available to those injured by the negligence of medical professionals in providing COVID-related treatment. Although the statute does not limit the right to assert a claim for gross negligence, the availability of relief for gross negligence is not a reasonable alternative to a claim for ordinary negligence. Ordinary negligence and gross negligence are, after all, distinct theories of liability … Section 12-516 thus denies relief to patients injured by negligence in the provision of COVID-related medical treatment who cannot make the additional showing required to establish gross negligence. Article 18, Section 6 does not permit the legislature to wholly extinguish a particular type of claim available at common law even if alternative causes of action remain available to injured claimants.”

The Arizona Appellate Court held: “A.R.S. § 12-516 bars claims for medical negligence by a subcategory of patients, i.e., those whose medical treatment was COVID-related. Accordingly, we hold that denying recovery to a subcategory of
medical negligence plaintiffs who would otherwise be entitled to assert a claim violates Article 18, Section 6 of the Arizona Constitution.”

Source Roebuck v. Mayo Clinic, No. 1 CA-CV 22-0508.

If you or a loved one have been injured as a result of medical malpractice in Arizona or in another U.S. state, you should promptly find an Arizona medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in your state who may assist you.

Turn to us when you don’t know where to turn.