Robert Baker v. University Physicians Healthcare

SUPREME COURT OF ARIZONA
En Banc
ROBERT BAKER, on behalf of ) Arizona Supreme Court
himself and all those entitled ) No. CV-12-0102-PR
to recover for the death of TARA )
BAKER, ) Court of Appeals
) Division Two
Plaintiff/Appellant, ) No. 2 CA-CV 11-0080
)
v. ) Pima County
) Superior Court
UNIVERSITY PHYSICIANS HEALTHCARE, ) No. C20097222
an Arizona corporation; BRENDA )
J. WITTMAN, M.D. and JOHN DOE )
WITTMAN, wife and husband; )
ARIZONA BOARD OF REGENTS doing ) O P I N I O N
business as UNIVERSITY OF )
ARIZONA COLLEGE OF MEDICINE, )
)
Defendants/Appellees. )
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Richard E. Gordon, Judge
VACATED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division Two
228 Ariz. 587, 269 P.2d 1211 (2011)
VACATED IN PART
________________________________________________________________
LAW OFFICE OF JOJENE MILLS, P.C. Tucson
By JoJene E. Mills
Attorney for Robert Baker
CAMPBELL, YOST, CLARE & NORELL, P.C. Phoenix
By Stephen C. Yost
Kenneth W. McCain
Attorneys for University Physicians Healthcare, Brenda J.
Wittman, Arizona Board of Regents, and University of Arizona
College of Medicine
HARALSON, MILLER, PITT, FELDMAN & MCANALLY P.L.C. Tucson
By Stanley G. Feldman
And
KNAPP & ROBERTS, P.C. Scottsdale
By David L. Abney
Attorneys for Amici Curiae Arizona Association for Justice/
Arizona Trial Lawyers Association
HARALSON, MILLER, PITT, FELDMAN & MCANALLY P.L.C. Phoenix
By Nathan J. Fidel
Attorney for Amici Curiae Steven Hardy and Mary Louise Hardy
JONES, SKELTON & HOCHULI, P.L.C. Phoenix
By Eileen Dennis GilBride
Attorney for Amicus Curiae Mutual Insurance Company
of Arizona
SNELL & WILMER L.L.P. Phoenix
By Barry D. Halpern
Sara J. Agne
Attorneys for Amicus Curiae Arizona Medical Association
________________________________________________________________
B A L E S, Vice Chief Justice
¶1 This case concerns the interpretation and
constitutionality of A.R.S. § 12-2604, which sets requirements
for experts who testify about the appropriate standard of care
in medical malpractice actions.
I.
¶2 Seventeen-year-old Tara Baker was treated for blood
clots by Dr. Brenda Wittman, an employee of University
Physicians Healthcare and the Arizona Board of Regents. Ms.
Baker later died and her father, Mr. Robert Baker, brought this
wrongful-death action alleging medical malpractice against Dr.
2
Wittman, her spouse, and her employers (collectively “UPH”).
¶3 Dr. Wittman is certified by the American Board of
Pediatrics in pediatrics and in pediatric hematology-oncology.
The American Board of Medical Specialties (“ABMS”) recognizes
pediatrics as a specialty and pediatric hematology-oncology as a
subspecialty of pediatrics. To testify about the standard of
care owed to Ms. Baker by Dr. Wittman, Mr. Baker disclosed Dr.
Robert Brouillard as his expert. Dr. Brouillard is certified by
the American Board of Internal Medicine in internal medicine and
in hematology and medical oncology. The ABMS recognizes
internal medicine as a specialty and hematology and medical
oncology as subspecialties of internal medicine.
¶4 UPH moved for summary judgment, arguing that Dr.
Brouillard was not a qualified expert under § 12-2604. The
statute provides in part:
A. In an action alleging medical malpractice, a
person shall not give expert testimony on the
appropriate standard of practice or care unless the
person is licensed as a health professional in this
state or another state and the person meets the
following criteria:
1. If the party against whom or on whose behalf the
testimony is offered is or claims to be a specialist,
specializes at the time of the occurrence that is the
basis for the action in the same specialty or claimed
specialty as the party against whom or on whose behalf
the testimony is offered. If the party against whom
or on whose behalf the testimony is offered is or
claims to be a specialist who is board certified, the
expert witness shall be a specialist who is board
certified in that specialty or claimed specialty.
3
2. During the year immediately preceding the
occurrence giving rise to the lawsuit, devoted a
majority of the person's professional time to either
or both of the following:
(a) The active clinical practice of the same health
profession as the defendant and, if the defendant is
or claims to be a specialist, in the same specialty or
claimed specialty.
(b) The instruction of students in an accredited
health professional school or accredited residency or
clinical research program in the same health
profession as the defendant and, if the defendant is
or claims to be a specialist, in an accredited health
professional school or accredited residency or
clinical research program in the same specialty or
claimed specialty.
A.R.S. § 12-2604(A)(1)-(2).
¶5 The trial court granted UPH’s motion for summary
judgment. Determining that the relevant specialty was pediatric
hematology, the trial court ruled that Dr. Brouillard was not a
qualified expert because he, unlike Dr. Wittman, was not
certified in that specialty. (Although the attorneys and the
trial court referred to “pediatric hematology,” the correct term
is “pediatric hematology-oncology.”) The court also rejected
Mr. Baker’s constitutional challenges to the statute.
¶6 The court of appeals agreed that Dr. Brouillard was
not qualified but reversed the trial court’s decision in part.
It ruled that the word “specialty” in § 12-2604 refers to one of
the twenty-four specialty boards that make up the ABMS, rather
than subspecialties such as pediatric hematology-oncology.
4
Baker v. Univ. Physicians Healthcare, 228 Ariz. 587, 590-91
¶¶ 8, 13, 269 P.3d 1211, 1214-15 (App. 2012). The court
declined to follow Awsienko v. Cohen, in which another appellate
panel suggested that “specialty” includes ABMS subspecialties.
227 Ariz. 256, 258, 260 ¶¶ 9, 17-18, 257 P.3d 175, 177, 179
(App. 2011). Under the definition adopted by the court of
appeals here, Dr. Brouillard was not qualified as an expert
because he was not board certified in pediatrics, the ABMS
specialty in which Dr. Wittman was board certified. Baker, 228
Ariz. at 591 ¶ 11, 269 P.3d at 1215. Remanding, the court of
appeals instructed the trial court to give Mr. Baker time to
find another expert who is board certified in pediatrics. Id.
at 593 ¶ 25, 269 P.3d at 1217.
¶7 We granted review to address issues of statewide
importance regarding the application of § 12-2604. We have
jurisdiction under Article 6, Section 5(3) of Arizona’s
Constitution and A.R.S. § 12-120.24.
II.
¶8 We interpret statutes to give effect to the
legislature’s intent, looking first to the statutory language
itself. State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133
(1993). When the language is clear and unambiguous, and thus
subject to only one reasonable meaning, we apply the language
without using other means of statutory construction. State v.
5
Gomez, 212 Ariz. 55, 57 ¶ 11, 127 P.3d 873, 875 (2006). If,
however, the language is ambiguous, “‘we consider the statute’s
context; its . . . subject matter, and historical background;
its effects and consequences; and its spirit and purpose.’” Id.
(quoting Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268, 872 P.2d
668, 672 (1994)).
¶9 The general intent of § 12-2604 is clear: in a medical
malpractice action, only physicians with comparable training and
experience may provide expert testimony regarding whether the
treating physician provided appropriate care. The statute,
however, is ambiguous regarding its application to particular
cases. If a treating physician is or claims to be a board-
certified specialist, the statute provides that a testifying
expert must be board certified in the same specialty. A.R.S.
§ 12-2604(A). But the statute does not define the terms
“specialist” or “board certified,” and Arizona law does not
otherwise provide general definitions for these terms. A
physician need not be considered a specialist in order to
practice in a certain area of medicine, and physicians who
specialize may provide medical treatment outside their
specialty. Moreover, different specialists may be prepared by
training and experience to treat the same medical issue for a
particular patient. Finally, physicians may hold multiple
certifications from different certifying bodies.
6
¶10 Applying § 12-2604 requires us to interpret its terms
in a way that comports with the legislature’s intent and
provides guidance to those affected by its provisions. We first
consider the statute’s application to testimony about the
“appropriate standard” of care and then consider the meaning of
the terms specialist, specialty, and board certified.
A.
¶11 The statute sets qualifications for witnesses who may
provide “expert testimony on the appropriate standard of
practice or care.” A.R.S. § 12-2604(A) (emphasis added). This
language informs our interpretation of the other statutory
provisions specifying qualifications for expert witnesses.
¶12 In medical malpractice cases, plaintiffs must show
that a health care provider breached the appropriate standard of
care and the breach resulted in injury. Id. § 12-563. The
standard of care, however, necessarily depends on the particular
care or treatment at issue. See id. § 12-563(1) (describing the
standard of care broadly, as “that degree of care, skill and
learning expected of a reasonable, prudent health care provider
in the profession or class to which he belongs within the state
acting in the same or similar circumstances”). Thus, only if
the care or treatment involved a medical specialty will
expertise in that specialty be relevant to the standard of care
in a particular case.
7
¶13 With regard to treating physicians who are or claim to
be specialists, § 12-2604(A)(1) requires testifying experts to
“specialize[] . . . in the same specialty or claimed specialty
as the party against whom or on whose behalf the testimony is
offered.” This requirement, however, presumes that the care or
treatment at issue was within the specialty of the treating
physician. If a treating physician practices outside his or her
specialty, the statute does not require a testifying expert to
possess qualifications in an irrelevant medical specialty, nor
would any such requirement make sense. See Baker, 228 Ariz. at
594 ¶ 28, 269 P.3d at 1218 (Eckerstrom, J., concurring)
(“[E]xpert witnesses need not mirror those specialties of the
defendant physician that are not pertinent to the relevant
injury or procedure.”); Woodard v. Custer, 719 N.W.2d 842, 849-
50 (Mich. 2006) (reasoning that a statute similar to § 12-2604
should not be read to require irrelevant specialties and board
certifications); cf. Taylor v. DiRico, 124 Ariz. 513, 518-19,
606 P.2d 3, 8-9 (1980) (recognizing that common law does not
require expertise irrelevant to standard of care and holding
trial court did not err in permitting an internist to testify
against a surgeon with respect to “standard of care in the
overall treatment of the patient before and after surgery”).
¶14 We accordingly interpret § 12-2604(A) as requiring
that a testifying expert specialize “in the same specialty or
8
claimed specialty” as the treating physician only when the care
or treatment at issue was within that specialty.
B.
¶15 We next turn to the meaning of “specialty” and
“specialist” for purposes of § 12-2604. In this regard, medical
and general dictionary definitions provide some limited
guidance. Cf. State v. Jones, 188 Ariz. 388, 392, 937 P.2d 310,
314 (1997) (relying on dictionaries to identify ordinary meaning
of statutory words). Dorland’s Illustrated Medical Dictionary,
for example, defines “specialist” as “a physician whose practice
is limited to a particular branch of medicine or surgery,
especially one who, by virtue of advanced training, is certified
by a specialty board as being qualified to so limit his
practice” and “specialty” as “the field of practice of a
specialist.” Dorland’s Illustrated Medical Dictionary 1767
(31st ed. 2007). Similarly, The American Heritage Dictionary
defines “specialist” as “[a] physician whose practice is limited
to a particular branch of medicine or surgery, especially one
who is certified by a board of physicians: a specialist in
oncology.” The American Heritage Dictionary of the English
Language 1681 (5th ed. 2011). It defines “specialty” as “[a]
branch of medicine or surgery, such as cardiology or
neurosurgery, in which a physician specializes; the field or
practice of a specialist.” Id.
9
¶16 Dictionary definitions, however, do not resolve the
issues before us. Also relevant are the other provisions of
§ 12-2604. The statute requires a testifying expert to have
spent a majority of his or her professional time practicing or
teaching in the specialty or claimed specialty during the year
preceding the occurrence. A.R.S. § 12-2604(A)(2). Because the
statute seeks to ensure that testifying experts have experience
and training comparable to the treating physician, this
requirement suggests that in order for the treating physician to
be a specialist, he or she must have similarly spent a majority
of his or her professional time practicing or teaching in the
claimed specialty.
¶17 Concluding that a “specialist” is someone who devotes
most of his or her professional time to a particular “specialty”
still, however, leaves us with the challenge of defining the
term “specialty.” The statute refers both to “claimed
specialty” and physicians who “claim[] to be a specialist.” Id.
§ 12-2604. But the statute does not suggest that the
legislature intended the meaning of “specialty” to turn on how a
treating physician might describe his or her own particular
practice. Instead, the statute is more reasonably interpreted
as contemplating that “specialty” has a more general,
objectively determinable meaning. In other words, a physician
might “claim” to be a specialist, but the statute does not mean
10
that a “specialty” is whatever the treating physician claims.
¶18 The court of appeals concluded that “specialty” refers
to an area of practice occupied by one of the twenty-four ABMS
member boards, such as pediatrics. Defining “specialty” by
referring to areas in which physicians can obtain certification
is a reasonable approach because § 12-2604 itself recognizes
that physicians may become board certified in particular
specialties. See id. § 12-2604(A)(1) (referencing “a specialist
who is board certified”).
¶19 Board certification is a voluntary process typically
administered by organizations such as national specialty boards.
See John J. Smith, Legal Implications of Specialty Board
Certification, 17 J. Legal Med. 73, 73-76 (1996); 1 Dan J.
Tennenhouse, 1 Attorneys Medical Deskbook 4th § 7:4, at 7-6
(2006). Certification requires graduation from an accredited
medical school, successful completion of residency or other
training, a certification exam, and, frequently, continuing
education and practice requirements. Smith, supra, at 74.
¶20 Although a physician can practice general and
specialty medicine without board certification, obtaining
certification may confer certain advantages such as hospital
privileges, lower malpractice insurance rates, and higher
salaries. Smith, supra, at 77. Most medical school graduates
in the United States participate in residency training and then
11
seek board certification. Mayo Found. for Med. Educ. & Research
v. United States, 131 S. Ct. 704, 708 (2011); Smith, supra, at
73-74; see also American Board of Medical Specialties, Better
Patient Care is Built on Higher Standards (2012)
http://www.abms.org/About_ABMS/pdf/ABMS_Corp_Brochure.pdf
(representing that ABMS member boards have certified
approximately 80-85% of all U.S. licensed physicians).
¶21 Defining “specialty” by reference to practice areas in
which a physician may obtain board certification is a workable
approach because these areas are objectively identifiable and
reflect recognition by certifying bodies that certain practice
areas involve distinct training and experience. See Thomas B.
Ferguson, Introduction to Legal Aspects of Certification and
Accreditation, at ix-x (Donald G. Langsley ed. 1983) (describing
the creation of the certification process as the “final step”
following the specialization of medicine and the rise of
accredited specialty training programs). We construe
“specialty” for purposes of § 12-2604 as referring to a limited
area of medicine in which a physician is or may become board
certified. See Woodard, 719 N.W.2d at 851 (interpreting a
statute similar to § 12-2604 as “mak[ing] it clear that a
physician can be a specialist who is not board certified” and
“that a ‘specialist’ is somebody who can potentially become
board certified”).
12
¶22 We disagree, however, with the court of appeals’
conclusion that § 12-2604 defines “specialty” solely with regard
to the areas of medicine occupied by the twenty-four ABMS member
boards and does not include subspecialties. See Baker, 228
Ariz. at 590 ¶ 8, 269 P.3d at 1214. The court of appeals relied
upon Arizona insurance statutes that do not refer to the ABMS or
its constituent boards. See id. at ¶ 7 (citing A.R.S. §§ 20-
841.04(F), 20-1057.01(E), 20-2532(A)(2), 20-2538(B)); see also
A.R.S. § 20-1057.01(E) (referencing “a specialty discipline that
is recognized by an American medical specialty board” (emphasis
added)).
¶23 By its terms, § 12-2604 does not confine the word
“specialty” to only the twenty-four ABMS member boards. As
commonly understood, a “subspecialty” is a more focused area of
practice encompassed by a broader specialty, but the
subspecialty is itself a specialty. See Woodard, 719 N.W.2d at
851 (relying on dictionary definitions to conclude that a
subspecialty “is a particular branch of medicine or
surgery . . . that falls under a specialty or within the
hierarchy of that specialty”); The American Heritage Dictionary,
supra ¶ 15, at 1734 (defining the prefix “sub” as “[b]elow;
under; [and] beneath” as well as “[s]ubordinate; [and]
secondary”).
¶24 By excluding recognized subspecialties from the
13
definition of “specialty,” the court of appeals’ construction of
§ 12-2604 is both too broad and too narrow. It would, for
example, allow a pediatrician certified by the American Board of
Pediatrics but who does not practice in hematology to testify
about the care provided by a pediatric hematologist - here, Dr.
Wittman – to a seventeen-year-old patient suffering from a
serious blood disorder. This is contrary to the statute’s goal
of ensuring that experts have qualifications and experience
comparable to the physician whose conduct is at issue. The
opinion below also too narrowly limits “specialty” as embracing
only the twenty-four ABMS member boards, thereby excluding a
broad range of practice areas certified by these boards as
subspecialties or by other certifying bodies.
¶25 UPH notes that the statute refers to a physician’s
“claimed specialty,” and suggests that this term could embrace a
subspecialty, such as pediatric hematology-oncology, if the
treating physician identified it as his or her “claimed”
specialty. We reject this approach because, as noted above, we
do not construe the statute to turn on an individual physician’s
labeling of his or her practice as a particular specialty.
Instead, we conclude that the word “claimed” in this context
refers to situations in which a physician purports to specialize
in an area that is eligible for board certification, regardless
of whether the physician in fact limits his or her practice to
14
that area. Cf. Lo v. Lee, 230 Ariz. 457, 460 ¶ 9, 286 P.3d 801,
804 (App. 2012) (holding that a defendant physician with board
certification in ophthalmology also had, through his public
assertions, a claimed specialty of plastic surgery).
¶26 Whether the relevant “specialty” is an area of general
certification, like pediatrics, or subspecialty certification,
like pediatric hematology-oncology, will depend on the
circumstances of a particular case. Just as a physician who is
a specialist may practice outside of his or her specialty, a
physician who is a subspecialist, such as in pediatric
hematology-oncology, may afford treatment or care that does not
involve that particular subspecialty but is embraced by the
broader specialty of pediatrics. In that event, § 12-2604(A)
would require testifying experts to specialize in pediatrics.
C.
¶27 Applying § 12-2604 in a case in which the treating
physician is or claims to be a specialist (that is, to devote a
majority of his or her practice to an area eligible for board
certification) requires a trial court to make several
determinations. The court must initially determine if the care
or treatment at issue involves the identified specialty, which
may include recognized subspecialties. If it does, testifying
experts must share the same specialty as the treating physician.
The trial court then must determine if the treating physician is
15
board certified within that specialty. If so, any testifying
expert must also be board certified in that specialty. (We have
no occasion here to interpret the statutory language regarding a
treating physician who “claims to be a specialist who is board
certified,” as Dr. Wittman indisputably is board certified.)
Depending on the circumstances, the relevant specialty may be a
subspecialty in which the treating physician is board certified.
¶28 The statute does not require a testifying expert to
have identical certifications to the treating physician (e.g.,
when the treating physician has multiple certifications), but
only that the expert be certified in the specialty at issue in
the particular case. Under § 12-2604(A)(2), proposed experts
must have spent a “majority of [their] professional time” during
the year preceding the occurrence either practicing or teaching
in that specialty or claimed specialty. Because an individual
cannot devote a “majority” of his or her time to more than one
specialty, the statute suggests that only the one relevant
specialty need be matched. See Woodard, 719 N.W.2d at 850.
D.
¶29 The parties contested below whether the relevant
specialty was pediatric hematology-oncology or hematology. The
trial court determined that pediatric hematology, in which Dr.
Wittman was board certified, was the relevant specialty. (As
noted above, the correct terminology is pediatric hematology-
16
oncology.) Because Dr. Brouillard was not certified in this
specialty, the trial court ruled that he was not qualified as an
expert under § 12-2604. The trial court then granted summary
judgment to UPH because, without expert testimony, Mr. Baker
lacked the required evidence to establish the standard of care
and causation.
¶30 Apart from issues of statutory interpretation, which
we review de novo, we review trial court determinations on
expert qualifications for an abuse of discretion. State v.
Keener, 110 Ariz. 462, 465-66, 520 P.2d 510, 513-14 (1974).
This standard of review equally applies to admissibility
questions in summary judgment proceedings. See Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 141-42 (1997); Mohave Elec. Co-op.,
Inc. v. Byers, 189 Ariz. 292, 301, 942 P.2d 451, 460 (App.
1997); Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 997
A.2d 954, 957 (N.J. 2010).
¶31 The trial court correctly interpreted § 12-2604 to
require a testifying expert to be board certified in the same
specialty as Dr. Wittman if she was practicing within that
specialty while providing the treatment at issue. As the trial
court observed, record evidence suggests that both non-pediatric
and pediatric hematologists could have treated a seventeen-year-
old patient for a blood disorder. The trial court did not abuse
its discretion in concluding that Dr. Wittman was practicing
17
within her specialty of pediatric hematology-oncology. Section
12-2604 therefore required a testifying expert to be certified
in that specialty, even if physicians in other specialties might
also have competently provided the treatment. The trial court
did not err in ruling that Dr. Brouillard was not qualified as
an expert.
III.
¶32 We next consider Mr. Baker’s argument that, if Dr.
Brouillard is not a qualified expert, the statute is
unconstitutional. He contends that § 12-2604 violates equal
protection and access to the court guarantees under the Federal
and Arizona Constitutions, as well as Arizona’s anti-abrogation
clause and prohibition against special laws. He further urges
us to reconsider our recent holding that the statute does not
violate the separation of powers. See Seisinger v. Siebel, 220
Ariz. 85, 96 ¶ 42, 203 P.3d 483, 494 (2009).
¶33 Our analysis is guided by “a strong presumption
supporting the constitutionality of a legislative enactment and
the party asserting its unconstitutionality bears the burden of
overcoming the presumption.” Eastin v. Broomfield, 116 Ariz.
576, 580, 570 P.2d 744, 748 (1977).
A.
¶34 Article 18, Section 6 of the Arizona Constitution
states that “[t]he right of action to recover damages for
18
injuries shall never be abrogated.” It prohibits “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.” Cronin v. Sheldon, 195 Ariz. 531,
538 ¶ 35, 991 P.2d 231, 238 (1999). The legislature, however,
may “regulate the cause of action for negligence so long as it
leaves a claimant reasonable alternatives or choices which will
enable him or her to bring the action.” Barrio v. San Manuel
Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 106, 692 P.2d
280, 285 (1984).
¶35 Although the statute might deny a plaintiff his expert
of choice, the record does not show that Mr. Baker lacks
“reasonable alternatives or choices which will enable him or
her to bring the action.” Id.; accord Governale v. Lieberman,
226 Ariz. 443, 447 ¶ 9, 250 P.3d 220, 224 (App. 2011). Section
12-2604 therefore permissibly regulates rather than abrogates
Mr. Baker’s right to bring a medical malpractice suit.
B.
¶36 Both the anti-abrogation clause of the Arizona
Constitution and the Fourteenth Amendment of the Federal
Constitution protect a plaintiff’s right of access to the
courts. Boddie v. Connecticut, 401 U.S. 371, 377 (1971);
Cronin, 195 Ariz. at 538-39 ¶ 35, 991 P.2d at 238-39. A court
may not, consistent with the Arizona Constitution, prohibit a
19
plaintiff from bringing a common law tort action. Cronin, 195
Ariz. at 538-39 ¶ 35, 991 P.2d at 238-39. Nor may a court,
under the Due Process Clause, deprive a plaintiff of a
meaningful opportunity to be heard. Boddie, 401 U.S. at 377.
¶37 Although plaintiffs might face greater difficulties in
finding a qualified expert because of a smaller expert pool,
§ 12-2604 does not bar medical malpractice lawsuits or preclude
plaintiffs from recovery in such actions. Accordingly,
§ 12-2604 does not violate the open-court guarantees of the
Arizona and Federal Constitutions.
C.
¶38 Mr. Baker also contends that, by burdening his right
to bring a medical malpractice action, § 12-2604 denies him
equal protection under the Federal and Arizona Constitutions.
He argues that the statute discriminates against plaintiffs with
claims “against licensed healthcare professionals” and also
discriminates “between classes of malpractice victims.” For
support, he states that twenty pediatric hematologists refused
to testify and the trial court did not permit his expert, a non-
pediatric hematologist, to testify.
¶39 The right to bring a negligence action, although not
fundamental under the Federal Constitution, is a fundamental
right protected by the anti-abrogation clause of the Arizona
Constitution. Kenyon v. Hammer, 142 Ariz. 69, 83, 688 P.2d 961,
20
976 (1984); Ariz. Const. art. 18, § 6.
¶40 The trial court rejected Mr. Baker’s equal protection
arguments because they had already been addressed and rejected
by the court of appeals in Governale. In that case, the court
ruled that § 12-2604 does not violate the equal protection
clause of the Arizona Constitution. Governale, 226 Ariz. at 449
¶ 19, 250 P.3d at 226. Holding that the statute does not affect
the fundamental right to bring a medical malpractice action, the
court applied rational basis scrutiny to uphold the statute
because it is rationally related to a legitimate governmental
interest. Id. at 448-49 ¶¶ 15-19, 250 P.3d at 225-26. The
court of appeals in this case affirmed the trial court’s ruling,
holding that Mr. Baker failed to distinguish his equal
protection claim from that raised in Governale. Baker, 228
Ariz. at 593 ¶ 22, 269 P.3d at 1217.
¶41 This Court has stated that, “[i]f [the right to bring
an action for damages] is ‘fundamental,’ the strict scrutiny
analysis must be applied.” Kenyon, 142 Ariz. at 79, 688 P.2d at
971. To survive a strict scrutiny analysis, a statute must
serve a compelling state interest and be necessary to achieve
that interest. Id. at 78, 688 P.2d at 970. However, this Court
has sometimes applied rational basis review rather than strict
scrutiny to medical malpractice statutes that allegedly affected
plaintiffs’ rights. See Eastin, 116 Ariz. at 582-86, 570 P.2d
21at 750-54 (applying rational basis scrutiny).
¶42 Our analysis in cases like Kenyon and Eastin has not
distinguished between equal protection claims based on alleged
violations of other constitutional provisions, such as the anti-
abrogation clause, and claims based upon an impermissible
classification. We now clarify our prior decisions in this
respect.
¶43 This Court in Eastin applied a rational basis test to
analyze equal protection challenges to a medical malpractice
statute creating a medical liability review panel, abrogating
the collateral source rule, and requiring a $2000 cost bond.
Id. We observed that the “traditional equal protection test,”
requiring challenged legislation to have a “reasonable basis,”
should apply in the area of economics and social welfare. Id.
at 582, 570 P.2d at 750 (internal quotation marks omitted)
(quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)). We
held that the provisions creating a medical review panel, by
providing a mechanism to separate meritorious medical
malpractice claims from frivolous ones, did not offend Arizona’s
equal protection clause. Id. at 582-83, 570 P.2d at 750-51.
Likewise, we reasoned that the abolition of the collateral
source evidentiary rule was reasonably related to the
legislative goal of decreasing malpractice premiums by scaling
down the size of jury verdicts. Id. at 585, 570 P.2d at 753.
22
We did, however, hold that requiring a plaintiff to post a $2000
cost bond violated the privileges and immunities clause of the
Arizona Constitution because it limited access to the courts.
Id. at 585-86, 570 P.2d at 753-54.
¶44 In Kenyon, however, the Court held that the right to
bring an action to recover damages is fundamental under the
Arizona Constitution and applied strict scrutiny to an equal
protection challenge to a medical malpractice statute. 142
Ariz. at 83, 688 P.2d at 975. Although Eastin had generally
applied a rational basis standard in reviewing a medical
malpractice statute, and struck down only the $2000 bond
requirement that affected access to the courts, the Kenyon court
declared that Eastin “stands for the proposition that where the
fundamental right to bring or pursue the action is affected,
this court will not apply the rational basis analysis.” Id.
¶45 Relying on Kenyon, Mr. Baker urges the Court to apply
greater scrutiny to an equal protection claim based on a
violation of the anti-abrogation clause than would apply to an
alleged violation of the anti-abrogation clause itself. We
decline to do so.
¶46 We have recognized in the First Amendment context that
the same level of scrutiny - intermediate scrutiny – applies to
equal protection claims involving the First Amendment as applies
to First Amendment claims themselves. Coleman v. City of Mesa,
23
230 Ariz. 352, 362 ¶ 41, 284 P.3d 863, 873 (2012). Consistent
with several other courts, we have recognized that applying
strict scrutiny “simply because it burdened constitutionally
protected speech” would nullify the intermediate-scrutiny test
applied to content-neutral time, place, and manner restrictions.
Id. at ¶ 42 (quoting Brown v. City of Pittsburgh, 586 F.3d 263,
283 n.22 (3d Cir. 2009)).
¶47 Similarly, we see no reason to apply a higher level of
scrutiny to an equal protection claim involving non-suspect
classifications grounded in the anti-abrogation clause of the
Arizona Constitution than to the abrogation claim itself. See
Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a
particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of
government behavior, that Amendment, not the more generalized
notion of substantive due process, must be the guide for
analyzing these claims.” (internal quotation marks omitted)
(quoting Graham v. Connor, 490 U.S. 386, 395 (1989))).
¶48 Our declining to apply strict scrutiny does not itself
preclude Mr. Baker’s equal protection claim. Cf. Governale, 226
Ariz. at 448-49 ¶¶ 15, 17-19, 250 P.3d at 225-26 (holding that
§ 12-2604 does not affect a fundamental right and that, under a
rational basis analysis, the statute does not violate the equal
protection provision of the Arizona Constitution).
24
¶49 To the extent Mr. Baker claims the statute
impermissibly discriminates among plaintiffs, the classification
is reviewed under a rational basis standard because no suspect
class is implicated. San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 16-17 (1973). By elevating the requisite
qualifications for experts in the medical malpractice context,
§ 12-2604 conceivably furthers a legitimate interest by
decreasing medical malpractice insurance rates and the
reluctance of physicians to practice in Arizona. See Seisinger,
220 Ariz. at 96 ¶ 41, 203 P.3d at 494. Because a rational basis
supports the “heightened level of proof,” id. at ¶ 40, the
statute does not violate the equal protection provisions of the
Arizona or Federal Constitutions.
D.
¶50 Section 12-2604 also does not violate Arizona’s
constitutional prohibition on the enactment of “special laws” in
areas that include “[c]hanging [the] rules of evidence,”
“[r]egulating the practice of courts of justice,” and the
“[l]imitation of civil actions.” Ariz. Const. art. 4, pt. 2,
§ 19(3), (5), (6). To determine whether a statute is a
prohibited special law, the Court considers: (i) “whether the
classification has a reasonable basis,” (ii) “whether the
classification encompasses all members of the relevant class,”
and (iii) “whether the class is elastic,” permitting members to
25
move in and out. See Republic Inv. Fund I v. Town of Surprise,
166 Ariz. 143, 149, 800 P.2d 1251, 1257 (1990).
¶51 As discussed, supra Part III.C, § 12-2604 has a
rational basis because it is reasonably related to the goals of
ameliorating the public health problems of rising medical
malpractice insurance rates and the reluctance of qualified
physicians to practice in Arizona, Seisinger, 220 Ariz. at 96
¶ 41, 203 P.3d at 494. The statute focuses on the
qualifications of experts, offered by any party, regarding the
appropriate standard of care by a health professional in a
medical malpractice action. Because it applies to any party
seeking to offer an expert, § 12-2604 encompasses the relevant
class. Republic Inv. Fund I, 166 Ariz. at 150, 800 P.2d at
1258. Further, the class is elastic because the identities of
parties and their experts will change over time. See Governale,
226 Ariz. at 449-50 ¶ 21, 250 P.3d at 226-27. Accordingly, the
statute is not a special law prohibited by the Arizona
Constitution.
E.
¶52 Finally, we decline to reconsider our holding in
Seisinger, 220 Ariz. at 96 ¶ 42, 203 P.3d at 494, that § 12-2604
does not violate the separation of powers doctrine.
IV.
¶53 For the foregoing reasons, we vacate the court of
26
appeals’ opinion, except ¶ 1 insofar as it vacates the trial
court’s judgment and directs the trial court on remand to allow
Mr. Baker an opportunity to identify an expert with the
qualifications required by A.R.S. § 12-2604 (an issue we
declined to review), and remand the case to the trial court for
proceedings consistent with this opinion.
__________________________________
Scott Bales, Vice Chief Justice
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
A. John Pelander, Justice
__________________________________
Robert M. Brutinel, Justice
__________________________________
Michael J. Brown, Judge*
*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Michael J. Brown, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.
27