Response from Sen. Nancy Barto

Many of you read my Open Letter to Senator Barto regarding opposition to SB 1359.  I received a response from her personally within an hour or so.  Read Sen. Barto's response below, and my reply in kind:

Response from Sen. Barto:

Dear Mrs. Lihn,

Thank you for commenting on this important legislation, SB 1359 - civil liability; wrongful life; birth, and for sharing your family’s experience with your daughter’s Hypoplastic Left Heart Syndrome.

I believe a lot of misinformation has been circulating regarding what this bill actually does in regards to changing appropriate current medical prenatal practices and the expectation that they should not be undermined. In short, the bill does not allow a change to a lesser standard of care.

First, physicians cannot “lie to women” as critics are claiming. Medical professionals who intentionally or knowingly withhold information from prospective parents may still be sued for gross negligence under this bill. That would include not performing or offering to perform tests that would be considered standard medical care during the course of a woman’s pregnancy.

Second, it is common sense to ensure in law that a physician who has done absolutely nothing wrong is not subject to lawsuits because a child was born – with or without a disability.

Sometimes diseases and abnormalities are not obvious through tests and nobody is “at fault”. It doesn’t make sense that physicians remain in the legal crosshairs because some parents think someone ought to be. In light of the nation’s serious physician shortage anything states can do to make the practice of medicine more practicable and fair, while maintaining due process recourse for true malpractice and gross negligence, should be pursued.

My best to you and your daughter as you strive to provide the best possible medical care for her.

Thank you, again, for your e-mail and comments.

Nancy Barto

Arizona State Senate

Chair, Health Care and Medical Liability Reform Committee

602-926-5766

Reply to Sen. Barto:

Ms. Barto,

Thank you for your response. While I respect your opinion, I must disagree. I understand the standard of care, however, the inherent language of this bill will unequivocally lower the existing standard of care. Anytime you remove the ability to pursue civil action for an act or omission pertaining to medical care, the standard of care, related to that same care is unquestionably lowered. Period. If a physician is not held accountable for finding the most severe of defects, they will be more lax in their diagnostic skill. I am no stranger to the legal terms "gross" and "intentional" negligence which bear argument in the court of law. As you know (or perhaps you don't), the burden on the plaintiff in a medical malpractice case, with burdens of gross and/or intentional are almost unobtainable in civil court and would require patent evidence of a physician overtly lying or concealing diagnostic evidence. Why raise the burden so high that your constituents, citizens of Arizona, and their fetuses are subjected to increased risk as a result of reduced civil liability and the accompanying fleecing of the check and balance system that our Country's government was founded upon? 

You and I both know that physicians are not permitted to "lie" to their patients, however, why are we giving them an out to do so? The existing burden of proof, applicable in medical malpractice cases, mandates that "[t]he health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances." As Arizona statutes require, a plaintiff cannot successfully proceed with a medical malpractice action unless they have an affidavit from another health care provider, in the same specialty as the defendant, which states, under oath, that the defendant fell below the standard of care. That requirement, in and of itself, quickly eliminates meritless lawsuits. 

Further, the fact sheet for your bill, and accompanying research are completely void of any research or statistics regarding the number of wrongful birth and wrongful life suits filed in Arizona. I can tell you that from 1999 to 2006, only 2,185 medical malpractice lawsuits were filed in Maricopa County, an average of roughly 273 a year. Of those, how many are wrongful life or wrongful birth cases? Likely very few - not exactly an epidemic that justifies putting the health of mothers and fetuses at risk with a redundant and unnecessary bill. The existing medical malpractice laws already place an extreme burden on plaintiffs and have enough mechanisms in place that meritless suits are quickly disposed of. As a practical matter, however, because of those same requirements, the costs of malpractice suits are so high that most attorneys won't pursue a suit unless it has clear merit and high damages. The average malpractice suit costs between $50,000 to $100,000 to prepare, not including trial. Medical Malpractice: The Prognosis, Arizona Attorney, February 2007, Page 16. Why allow wiggle-room for physicians to exert their political choice (pro-life) on a mother?   

The situation is much more dire than simply protecting a physician from a lawsuit, which I would submit, they are already suitably protected from given the existing medical malpractice legislation. 

I am not suggesting that the burden for medical malpractice cases be lowered, I am simply stating that there are adequate mechanisms in place to protects against the very small number of wrongful birth and wrongful life cases files in Arizona courts. In the context of a cost-benefit analysis, the cost overwhelmingly outweighs the benefit. I hope you and your colleagues realize this. I stand firm in my opposition to SB 1359.

Thank you for your kind words in regards to my daughter and her care. She is an incredible blessing in the lives of our family and so many who know her.

Stacey Lihn