Under A.R.S. § 12-563(2), a plaintiff in a medical malpractice action must prove that “the failure of a health care provider to follow the accepted standard of care . . . was a proximate cause of the injury.” This is a prima facie element of a medical malpractice claim.
A separate statute, A.R.S. § 12-572, provides that health professionals and hospitals providing treatment in emergency departments are not liable for damages “[u]nless the elements of proof contained in § 12-563 are established by clear and convincing evidence.” This clear and convincing standard of proof is higher than the preponderance of the evidence standard that applies in other medical malpractice actions.
The clear and convincing evidence requirement in § 12-572 is the standard of proof for claims based on treatment in an emergency department. It is not a prima facie element of a medical malpractice claim.
The Supreme Court of the State of Arizona (“Arizona Supreme Court”) held in its Opinion filed on October 22, 2025: “Where the plaintiff’s expert testifies that the alleged negligence “likely” caused the injury, the plaintiff has established the requisite causal connection between the alleged negligence and the injury under § 12-563(2), such that a jury would not be left to infer or speculate about the element of causation. Accordingly, the plaintiff’s claim does not fail as a matter of law solely because of this expert testimony. Instead, the expert testimony and any other relevant, admissible evidence on causation must be considered in determining whether the plaintiff has established causation by clear and convincing evidence.”
In the case it was deciding, the Arizona Supreme Court stated: “As to the case before us, Plaintiff presented evidence
indicating that the urgent care doctor discerned a particular condition and directed Henke to the emergency department with a note about what he suspected and a phone call to the emergency department to discuss Henke’s care. The emergency department doubted, and ultimately rejected, the urgent care doctor’s suspicions. Shortly thereafter, Henke’s primary care provider evaluated him and expressed concern about the same condition the urgent care doctor had suspected. Two days later, Henke died of that same condition. This additional evidence must be considered, along with expert testimony and any other relevant, admissible evidence, in determining whether Plaintiff has proven causation by clear and convincing evidence.”
“Indeed, the factfinder may be persuaded that other evidence in the record shifts causation from a preponderance of the evidence to clear and convincing … There are also other factors that a factfinder may consider relevant to whether causation has been established by a preponderance of the evidence or clear and convincing evidence, including the medical expert’s credibility, demeanor, experience, and reasoning behind the testimony. Thus, § 12- 572 requires that the element of causation in § 12- 563(2) be established by clear and convincing evidence after the consideration of expert testimony and any other relevant, admissible evidence on causation.”
Source Henke v. Hospital, No. CV-24-0259-PR.
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.
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