Arizona's new malpractice law, middle approach

Arizona has found a middle ground in the debate over malpractice lawsuits.

During the ongoing debate on health care reform, one of the proposals that invariably arises is one to limit the filing of malpractice lawsuits against doctors and the amount of monetary financial awards from the cases.

Supporters of the limits say that frequent and unnecessary malpractice suits are driving up the cost of health care through higher malpractice insurance rates that doctors must pay. They also say they are forcing doctors out of emergency medicine where they are more likely to face these lawsuits.

Supporters also say the suits encourage doctors to call for more testing than is really necessary out of a desire to head off the possibility of malpractice suits. This in turn drives up the cost of health care.

Opponents, often trial lawyers, have a different viewpoint. They say it is wrong and unfair to put limits on patients and their families who have been gravely harmed by bad medical practices. They also point out that doctors who have done harm should have to pay full compensation for it.

Arizona Gov. Jan Brewer signed a law this week which addresses concerns about the impact of malpractice suits, but does not put limits on filing them or on monetary awards from them - which is prohibited under the Arizona Constitution.

Instead, the new law requires a higher level of proof to win a malpractice lawsuit. It moves away from a requirement for a preponderance of evidence (most people think it is likely) to prove negligence by a doctor to "clear and convincing evidence" (beyond reasonable doubt).

This a distinction that layman may find difficult to understand, but basically it means it will be more difficult for attorneys to prove malpractice happened.

While this will undoubtedly make trial lawyers and their clients unhappy, it is not an unreasonable change. Doctors who have truly done harm can still be punished and their victims compensated. But less substantial or frivolous malpractice suits will be discouraged.