Arizona case threatens status of expert witness qualifications

The Executive Committee of the Board of Directors of the American Association of Orthopaedic Surgeons (AAOS) has voted unanimously to join an amicus curiae brief in a case involving Arizona legislation on the qualifications required for medical expert witnesses.

The case, Seisinger v. Siebel, is an appeal supported by the Mutual Insurance Company of Arizona (MICA) of a recent decision of the Arizona Court of Appeals. In June 2008, the appeals court held unconstitutional a state statute requiring that medical experts who testify in medical liability cases meet certain minimum qualifications, including licensure and certification.

The decision undermines one of several carefully considered attempts by the Arizona legislature in 2005 to alleviate the medical malpractice crisis in Arizona. The Arizona Court of Appeals held that legislatively imposed minimum qualifications violate the state constitution’s separation of powers clause, which prohibits one branch of government from interfering with the authority of another.

According to counsel for the Arizona Medical Association (ArMA), the appellate decision “exalts judicial supremacy and largely ignores the important public policy reasons underlying the statute.”

If the decision is allowed to stand, it could have a significant impact not only in Arizona, but in other states as well. Because many states have similar statutes regarding minimum standards for medical expert witnesses, the Arizona appellate decision might be used as precedent to hold such medical liability reforms as unconstitutional.

The AAOS is joining the ArMA, the Arizona Orthopaedic Society, the Arizona Hospital Association, and several other national and state medical and specialty societies in this action.

Richard N. Peterson, JD, is AAOS general counsel. He can be reached at peterson@aaos.org