Arizona Court of Appeals Division One holds that A.R.S. § 12-516 violates the anti-abrogation clause of the Arizona Constitution by removing a patient’s right to recover damages for ordinary negligence.

Patient had a heart transplant in 1993 at hospital, and a second heart transplant and kidney transplant in 2017.  In 2020, patient returned to the hospital with COVID-19 symptoms and, per standard procedure as a heart transplant patient, was placed under care of the congestive heart failure team.  After a positive COVID-19 test and an echocardiogram, doctors proceeded with management of COVID rather than cardiac care.  Patient received an arterial blood gas (“ABG”) test due to complications from COVID.  Patient then developed complications from the ABG and underwent emergency surgery.  Patient was left with diminished strength and use of his hand and arm.  He then sued the hospital for ordinary negligence.  A.R.S. § 12-516, passed during the pandemic, purported to bar claims for ordinary negligence (rather than willful misconduct or gross negligence) when providing health care services in support of the state’s response to the pandemic.  The hospital moved for summary judgment on this basis, which the trial court granted.  Patient appealed.

The Court of Appeals reversed and remanded.  The court first rejected patient’s non-constitutional arguments that material issues of fact existed, that A.R.S. § 12-516 was ambiguous, and that the statute was not retroactive.  However, the court agreed with patient that A.R.S. § 12-516 violates Article 18, Section 6 of the Arizona Constitution (the “anti-abrogation clause”).  Under the anti-abrogation clause, “[t]he right to recover damages for injuries shall never be abrogated.”  This clause prevents abrogation of common-law actions for negligence.  The common law is impermissibly abrogated if a statute addresses a cause of action that is protected and completely does away with it, rather than regulates it.  A.R.S. § 12-516 does more than merely raise the burden of proof or otherwise regulate ordinary negligence claims for COVID-related medical malpractice, it completely bars them, and preserving a claim for gross negligence is not a reasonable alternative.  Because A.R.S. § 12-516 bars claims for medical negligence by a subcategory of plaintiffs (those whose treatment was COVID-related), it violates the anti-abrogation clause.

The court also rejected the hospital’s argument that the patient’s claims were preempted by federal COVID immunity law because the ABG test is not a “qualified pandemic or epidemic product,” a “drug,” a “biological product,” or a “device.”

Judge Cruz authored the opinion, in which Judges Morse and Kiley joined.

Posted by Emma J. Cone-Roddy