Arizona Court of Appeals, Division One, holds that statute prohibiting use of medical provider’s apologetic statement as evidence is constitutional.

A woman was pregnant with twins.  Her obstetrician considered her high risk and, as such, repeatedly discussed the need to deliver the twins via C-section.  However, when the woman unexpectedly went into labor, her obstetrician was unavailable.  The obstetrician that was covering her delivery instead assured her that a vaginal delivery would be safer.  The woman eventually agreed with that recommendation, and the first twin was born without complication.  Unfortunately, the second twin became trapped in the birth canal.  Her usual obstetrician was called to assist, but the baby ultimately suffered brain damage as a result of oxygen deprivation.

The woman and her husband sued her obstetrician for medical malpractice.  Before trial, a dispute arose over the couple’s intent to use an apologetic statement made by her obstetrician as evidence at trial.  The obstetrician moved in limine to preclude the use of his statement pursuant to A.R.S. § 12-2605, which bars the use of [a]ny statement, affirmation, gesture or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence” made by a health care provider as “evidence of an admission of liability or as evidence of an admission against interest.”  The superior court, citing the statute, precluded the use of the obstetrician’s statement at trial.  The jury found for the obstetrician.

The couple appealed, arguing that § 12-2605 is unconstitutional.  The Arizona Court of Appeals, Division One, affirmed the superior court.  It began by rejecting an argument that § 12-2605 violated the separation of powers, which reserves evidentiary rulemaking to the judiciary.  The Court noted that there was an irreconcilable conflict between § 12-2605 and Arizona Rule of Evidence 801(d)(2) (which deems opposing party admissions admissible), but it nevertheless did not violate the constitutional separation of powers because the legislature had the power to determine the use or exclusion of otherwise relevant evidence in order to promote public policy goals.  Like a privilege statute, § 12-2605 promoted honest communication between doctor and patient.  Fostering an open patient-provider relationship was a permissible legislative goal, and § 12-2605 therefore did not violate the separation of powers.

The Court rejected a similar argument that § 12-2605 was an impermissible “special law” that applied only to a particular class of people.  Because the legislature had a legitimate government interest in enacting § 12-2605, it applied equally to all medical providers, and the class of people it applied to was elastic, § 12-2605 was not a “special law” but a valid exercise of legislative power.  Using this same reasoning, the Court also rejected an argument that § 12-2605 violated the Arizona Constitution’s Privileges and Immunities Clause.

Finally, the Court noted that § 12-2605 only precluded the use of apologetic statements as evidence of an admission of liability or an admission against interest.  Other uses, such as for impeachment, were permissible under the statute.

Judge Brown authored the opinion for the Court, joined by Judges Campbell and Williams.