Different standards in med. mal. cases unconstitutional.

CASE ON POINT: Seisinger v. Siebel, 2008 AZ (06/17/2008) -AZ

CASE FACTS: In August 2004, Laura Seisinger filed a complaint against Dr. Scott Siebel alleging that he committed medical malpractice when he administered a spinal epidural to her. Thereafter, Dr. Seisinger disclosed in discovery that his expert witnesses would be Dr. J. Antonio Aldrete, as an expert witness who would testify based upon his examination of the patient and his review of her medical records. Prior to trial, Dr. Siebel moved in limine to preclude Dr. Aldrete's testimony because he did not meet the requirement of Arizona law governing the qualifications necessary for expert witnesses in medical malpractice suits. Laura Seisinger did not dispute that Dr. Aldrete could not satisfy the requirements under Arizona law. Instead, she argued that the law was unconstitutional and a violation of the separation of powers doctrine because it was in direct conflict with Rule 702 and asked the trial court to decare it unconstitutional. The trial court granted Dr. Siebel's motion, ruling that the section of law in question did not violate the separation of powers doctrine or detract from the court's ability to apply rule 702. The trial court granted Seisinger an extension of time to disclose a new expert witness. When "Scisinger failed to disclose a new expert, the court granted Dr. Siebel's motion to dismiss the case. Seisinger appealed. This presented several key issues to be decided by the appellate court, not the least of which was whether the section of Arizona law in question was constitutional or not. Appellate courts generally review challenges to a statute's constitutionality de novo. Further, appellate courts presume a statute is constitutional and will not declare a statute unconstitutional unless it is "satisfied beyond a reasonable doubt" that it conflicts with the federal or state constitution. Accordingly, appellate courts resolve all uncertainties in favor of constitutionality. The Arizona Constitution requires the three main branches of government, legislative, executive and judicial, to remain "separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others." However, the separation of powers doctrine does not require absolute compartmentalization of the branches. Thus, a legislative enactment violates the Arizona constitution only when it "unreasonably limits or hampers the judicial system in performing its function" The Arizona constitution confers on the Arizona Supreme court the power to make rules relative to all procedural matters in any court. The plaintiff argued that the Arizona law was unconstitutional.

COURT'S OPINION: The Court of Appeals of Arizona held that the section of Arizona law in question violated the separation of powers provision of the Arizona Constitution. Accordingly, the court reversed the trial court's judgment and remanded the case for further proceedings consistent with its decision The court noted that Arizona rules of Evidence address admission of "Opinion and Expert Testimony." Further, the court found that the issue of the admissibility of the plaintiff's expert testimony in this case came under Rule 702. That rule, the court noted, provides in pertinent part: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testily thereto in the form of an opinion or otherwise."

LEGAL COMMENTARY: Arizona courts have held that an expert witness need not be of the same specialty as the defendant in a medical malpractice suit to be competent to testify, regarding the standard of care. Rather, a witness may testify, based upon his or her "education, experience, observation or association with that specialty." Thus, "it is the scope of the witness' knowledge and not the artificial classification by title that should govern the threshold question of admissibility. The court noted that the section in question, however, provides additional expert witness qualifications in medical malpractice suits. The court agreed with the plaintiff that the applicable section unconstitutionally infringed on the Arizona Supreme Court's powers to make procedural rules and also conflicted with Rule 702 in setting forth additional requirements for expert witnesses in medical malpractice cases. The court noted that the Arizona Supreme Court has previously discussed the circumstances under which a statute supplants a court rule. Editor's Note: Man), courts have been confronted with both state and federal constitutional issues that arise from having separate and distinct requirements for qualifying witnesses to testify as expert witnesses in medical malpractice cases. There is a need for uniformity throughout the states. What we have is a hodge podge of laws and decisions that run contrary to the fact that some state laws are, in fact, unconstitutional. Will other courts follow the lead of the Arizona courts?

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the Untied Slates. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Regan Reports, his legal articles have been punished in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.