Arizona Supreme Courts holds that A.R.S. § 12-516(A) violates the Arizona Constitution’s anti-abrogation clause.

In 2020, Plaintiff was hospitalized for COVID-19 at the Mayo Clinic in Arizona. A doctor ordered an arterial blood gas test as part of his treatment. Plaintiff developed complications from the test and underwent surgery, which resulted in scarring and diminished use of his arm and hand.

In 2021, Plaintiff sued the Mayo Clinic for ordinary medical negligence—he did not allege gross negligence. Mayo Clinic argued that A.R.S. § 12-516 immunizes it from suit for ordinary negligence arising out of treatment for COVID-19. That statute provides that a health care institution is not liable for damages in any action for injury or death when providing health care services in support of a public health pandemic unless the plaintiff proves by clear and convincing evidence that the provider acted with willful misconduct or gross negligence.

Mayo Clinic prevailed on summary judgment. On appeal, the court of appeals reversed, concluding that § 12-516’s prohibition on the assertion of ordinary negligence claims for COVID-related treatment is an abrogation of a common law right, in violation of the Arizona Constitution’s anti-abrogation clause. The supreme court granted review.

The supreme court explained that the anti-abrogation clause prohibits the abrogation of rights of action that existed in common law at statehood or are based in such rights. The parties agreed that this negligence action was a covered action. Therefore, the analysis turned on whether the statute abrogated—not merely regulated—the right of a negligence action.

The supreme court concluded that § 12-516(A) abrogated the right because it prohibited ordinary negligence claims while allowing gross negligence claims. The Court explained that gross negligence is not a reasonable alternative to ordinary negligence. While ordinary negligence and gross negligence share elements, gross negligence requires an additional showing that the defendant acted with reckless indifference—an element the supreme court described as a “quasi-intent element.” The supreme court noted that because of this added requirement, there will be a substantial class of plaintiffs injured by medical providers that cannot bring gross negligence claims. It ultimately concluded that “[t]he quasi-intent element of reckless indifference transforms the nature of a negligence claim such that negligence as known at common law would no longer exist.” Accordingly, the supreme court held that gross negligence is not a reasonable alternative to ordinary negligence, and thus § 12-516(A) completely bars recovery for plaintiffs injured by ordinary negligence in relation to a pandemic—an unconstitutional violation of the anti-abrogation clause.

Justice Beene authored the Court’s opinion, joined by Chief Justice Timmer, Vice Chief Justice Lopez, and Justice Montgomery.

Justice Bolick dissented in part. Disagreeing with the Court’s majority, Justice Bolick wrote that the statute is a constitutional exercise of the state’s police power to protect public health. Reasoning that the anti-abrogation clause was meant to have a narrow impact, Justice Bolick concluded that § 12-516(A) merely raises the standard for medical negligence during a pandemic, but it does not abolish the right of action, and therefore the statute is not a violation of the anti-abrogation clause.

Justice King recused herself from the case, and because Justice Cruz had not yet been appointed, only five justices participated in this decision.

Posted by: Jacob Abrahamian