Arizona Apology Law
A.R.S. § 12-2605, which was adopted in 2005, states as follows: “Any statement, affirmation, gesture or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence that was made by a health care provider or an employee of a health care provider to the patient, a relative of the patient, the patient’s survivors or a health care decision maker for the patient and that relates to the discomfort, pain, suffering, injury or death of the patient as the result of the unanticipated outcome of medical care is inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”
The Arizona Court of Appeals Division One (“Arizona Appellate Court”) held in its opinion filed on August 17, 2021: “A.R.S. § 12-2605 does not violate the Arizona Constitution’s provisions on separation of powers, special laws, or privileges and immunities.”
The Underlying Facts
Jodie Coleman was pregnant with twin boys and her obstetrician was defendant Dr. John Amon. Because Jodie was considered a high-risk patient, Dr. Amon and the Colemans repeatedly discussed that a cesarean section (“C-section”) would be scheduled, but a date had not been set when Jodie went into labor sooner than anticipated. After the Colemans arrived at the hospital, staff began fetal monitoring. Dr. Amon was scheduled to perform a C-section on another patient that morning, so Dr. William Brown, the on-call doctor, stepped in to handle the delivery. Dr. Amon anticipated Dr. Brown would perform a C-section, but Dr. Brown confidently told Jodie he wanted to do a vaginal delivery because it was the safest way. Though Jodie was initially nervous, she agreed with Dr. Brown’s recommendation.
After the first twin was born without complications, the second twin (“the baby”) became entrapped in the birth canal. A nurse summoned Dr. Amon for assistance, but by the time the baby was finally delivered, he had been deprived of oxygen for at least six minutes and had no heartbeat for about 15 minutes after birth. The baby was revived but suffered brain damage.
The Colemans sued Dr. Amon, Dr. Brown, the hospital, and others, alleging they negligently caused the baby to suffer severe and permanent injuries. After extensive pretrial litigation, Dr. Amon was the only remaining defendant in the 15-day trial. Jodie had testified during her deposition that when Dr. Amon first visited her after the delivery, he told her he was sorry. Jodie said that during his next visit, Dr. Amon told her “how sorry he was, and that he felt like he had let [the Colemans] down.” Jodi also testified during her deposition that during a different conversation, her husband, Sean, asked Dr. Amon, “If we would have stayed with the C-section, would this have happened?” According to Jodi, “Dr. Amon put his head down and he said ‘No.’”
The trial court granted Dr. Amon’s motion in limine to preclude any testimony during the trial that he had said he was sorry or had let the Colemans down, as Jodi had testified in her deposition. Dr. Amon disputed that such a conversation occurred, but maintained that even if it did, the apology was inadmissible under A.R.S. § 12-2605.
The jury returned a defense verdict, and the superior court denied the Colemans’ post-trial motions. The Colemans appealed.
Arizona Appellate Court Opinion
The Arizona Appellate Court stated that like a privilege statute, although § 12-2605 excludes potentially relevant evidence for certain purposes, it furthers the legislature’s policy goal of encouraging healthcare providers to speak with patients freely and with compassion about adverse or unforeseen medical outcomes without fear their words might later be used against them in litigation. “§ 12-2605 aims to foster an open and candid provider-patient relationship—an objective that is properly within the legislature’s prerogative … Accordingly, § 12-2605 represents a valid exercise of legislative authority and does not infringe on constitutional separation of powers.”
The Arizona Appellate Court further stated that a statute is not a prohibited special law if (1) it has a rational relationship to a valid legislative purpose; (2) it has a legitimate classification, encompassing all similarly situated members; and (3) the classification is elastic so as to allow other individuals or entities to enter and exit the class.” The Arizona Appellate Court held: “§ 12-2605 is not an unconstitutional special law.”
In response to the Colemans’ argument that § 12-2605 violates Arizona’s privileges and immunities clause, which prohibits laws “granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations,” Ariz. Const. art. II, § 13, the Arizona Appellate Court stated: “To satisfy this clause, a statute that does not violate a fundamental right or create an invidious classification need only “rationally further a legitimate legislative purpose” … Though the Colemans argue § 12-2605 denies an equal opportunity to other civil-action defendants by protecting only healthcare workers, as explained above, the class of healthcare providers to which the statute applies is legitimate and its members are similarly situated, supra, and § 12-2605 satisfies rational basis review, supra. Further, the Colemans have not developed any argument that § 12-2605 violates a fundamental right or creates an invidious classification.”
However, the Arizona Appellate Court further stated: “If the legislature desired to bar apology-related statements in every circumstance, we presume it would have said so. Instead, it identified two specific instances when such statements are not admissible. Because § 12-2605 plainly applies to Dr. Amon’s apology, the Colemans could not present evidence of the apology at trial as an admission of liability or admission against interest. The unresolved issue here, however, is whether the Colemans sufficiently preserved their argument that the superior court erred by barring them from using the apology as evidence for purposes not covered by the statute … Because the Colemans did not make an offer of proof alerting the court how and when they wished to impeach Dr. Amon with his apology-related statements, the court had no opportunity to evaluate whether § 12-2605 would prohibit their use of the evidence, and whether it was otherwise admissible under Rules 401 and 403. Thus, the court did not abuse its discretion.”
Source Coleman v. Amon, No. 1 CA-CV 19-0350.
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