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Arizona Court Stuns Doctors By Expanding Medical Liability

On November 12th, the Arizona Supreme Court greatly enlarged physician liability. McGill v. Albrecht, 2002 Ariz. LEXIS 197. Sending shockwaves through the medical community, the Court applied the harsh penalties of the Adult Protective Services Act ("elder abuse statute") to alleged ordinary medical negligence. A.R.S. 46-451 to 46-457.

The elder abuse statute was enacted in response to reports of mistreatment in nursing homes. It was designed to curb elder abuse by increasing the "remedies available to and for elderly people who had been harmed by their caregivers," the Court observed.

Its statutory penalties are severe, much greater than for ordinary malpractice. It allows punitive damages without clear and convincing proof of evil, as required by the malpractice statute. It permits pre-death pain and suffering for decedents, barred in most civil actions. It has a lengthy seven-year statute of limitations, in contrast to the two-year cutoff for malpractice. The elder abuse statute also enables plaintiffs to bypass strict requirements of qualified expert testimony.

This case was filed by the estate of patient Norma McGill, who passed away at the age of sixty-four. Her cause of death was cardiac arrest due to neurotoxicity, which was allegedly secondary to breast cancer metastasis and medications.

Dr. James L. Beach was her primary care physician for two-and-a-half years, up until about eight months before she died. He performed two physical examinations on her, but allegedly did not order a timely mammogram.

That led to this litigation, because Ms. McGill was ultimately diagnosed with metastatic breast cancer. According to the Court, the standard of care for a woman of Ms. McGill's age and condition is to order a yearly mammogram.

At no time did Dr. Beach affirmatively abuse Ms. McGill. Rather, the allegation is that by failing to order a mammogram, Dr. Beach somehow committed "neglect, abuse or exploitation" against "[a]n incapacitated or vulnerable adult" under the elder abuse statute. (Ms. McGill had a long history of psychiatric illness and was being treated in a behavioral health facility.)

The Arizona Supreme Court decided against Dr. Beach and his co-defendants. A single act of alleged malpractice may now subject the doctor to the severe penalties of the elder abuse statute.

Specifically, a single omission by a doctor is now "actionable abuse" if the omission (1) arises from the relationship between the caregiver and patient, (2) is closely connected to that relationship, (3) is linked to the service the caregiver undertook because of the patient's incapacity, and (4) is related to the problems that caused the incapacity. These conditions can be easily met by most plaintiffs.

The Court illustrated the sweeping scope of its new rule with the following example. If a nurse places an incapacitated person in a bathtub and turns on water at too high of a temperature, and a distraction prevents immediate correction, then the new liability applies.

Tragically, this ruling could scare away medical services for the incapacitated. Insurance premiums may increase for those willing to serve the weakest of patients.

The Court did state that a surgeon who negligently fails to remove an instrument or discover a perforation in the viscera would not be liable under elder abuse statute. Such surgeon, it declared, has a role that "is completely separate from the unique role of caregiver and incapacitated recipient."

But the Court did not apply its own exception to Dr. Beach for his alleged omission. So it is difficult to see how any caregiver to the incapacitated could escape the clutches of the elder abuse statute.

Lawyers filing malpractice claims on behalf of incapacitated patients have been given a new pot of gold to chase after, to the detriment of affordable medicine. Insurance rates will surely climb higher.