On March 13, 2009, the Arizona Supreme Court upheld that state’s expert witness qualifications statute. The statute requires medical experts testifying in medical liability actions to meet certain minimum qualifications such as licensure and certification. The American Association of Orthopaedic Surgeons (AAOS) filed an amicus curiae brief in the successful appeal.

The statute (ARS Section 12-2604) spells out specific qualifications for an expert witness on standard of care in a medical liability action involving a specialist. The witness must have devoted most of his or her professional time during the year preceding the incident to active clinical practice or teaching in the same specialty as the defendant physician. If the defendent physician is board-certified, the expert witness must also be board-certified.

Background
Scott Siebel, MD, an anesthesiologist, was the defendant in a medical liability suit (Laura Seisinger v. Scott Siebel, MD). His counsel objected to the plaintiff’s expert on the grounds that the expert did not meet the requirements of Section 12-2604. The plaintiff’s attorney argued that the statute was not constitutional under the Arizona Constitution. The trial court rejected the plaintiff’s constitutional argument, but allowed the plaintiff additional time to disclose a new expert witness. When she failed to do so, the trial court granted Dr. Siebel’s motion to dismiss.

On the plaintiff’s appeal, the Arizona Court of Appeals reversed, finding that the statute conflicted with an Arizona procedural rule that allows the trial judge to qualify a witness as an expert based on knowledge, skill, experience, training, or education. The appeals court reasoned that the statute infringed on the court’s authority to set procedures within a trial setting, a violation of the separation of powers doctrine.

The case proceeded to the Arizona Supreme Court, which reversed the decision of the Court of Appeals. The Supreme Court ruled that the expert witness statute is substantive, rather than procedural, and does not conflict with the court’s authority or violate the separation of powers doctrine.

Upholding tort reform
The Supreme Court noted that in enacting the statute, the Arizona legislature was addressing “what it believes to be a serious substantive problem—the effects on public health of increased medical malpractice insurance rates and the reluctance of qualified physicians to practice here—by effectively increasing the plaintiff’s burden of production in medical malpractice actions.”

The decision effectively reinstates the expert witness qualifications statute in Arizona. When a defendant physician in an Arizona medical liability case is a specialist, an expert witness who seeks to testify to the standard of care must meet the statutory requirements of devoting a majority of his or her professional time in the year prior to the incident at issue either in active clinical practice or teaching in the same specialty.

Melissa Young, JD, is the AAOS assistant general counsel. She can be reached at young@aaos.org