Barsema v. Susong
| Decision Date | 09 October 1986 |
| Docket Number | CA-CV,No. 2,2 |
| Citation | 156 Ariz. 304,751 P.2d 964 |
| Parties | James BARSEMA and Debra Barsema, Plaintiffs/Appellants, v. William A. SUSONG and Jane Doe Susong, husband and wife; Phoenix Gynecologists, Ltd., a corporation; Richard A. Thompson and Jane Doe Thompson, husband and wife; St. Joseph's Hospital and Medical Center, a corporation; Black Corporation 1 through 10, and John Doe and Jane Doe, husband and wife 1 through 10, Defendants/Appellees. 5794. |
| Court | Arizona Court of Appeals |
This is an appeal from a jury verdict in favor of defendants and from a denial of plaintiffs' motion for new trial by the superior court. On October 1, 1982, Debra Barsema, age 29, underwent a vaginal hysterectomy at St. Joseph's Hospital in Phoenix, which was performed by Dr. William Susong. She was discharged to her home in Globe, on October 5, 1982.
Sometime during the night and morning of October 7-8, Debra Barsema had a pulmonary embolism. She exhibited symptoms of severe chest pain, shortness of breath and tachycardia which lasted for a couple of hours. She continued to have shortness of breath and chest discomfort throughout October 8 and she was pale and weak.
Jim Barsema talked to Dr. Susong on October 8 about his wife's problems the night before. Dr. Susong summarized his conversation with Barsema on October 8 in his office notes, recording that Debra had "tightness in chest" the night before that lasted a couple of hours and that she was very weak if she tried to walk. He noted that no fever and no bleeding were reported that morning and requested Jim Barsema to obtain a complete blood count at a local medical facility. Dr. Susong testified that as a result of his conversation with Jim Barsema, one of the possibilities he considered was a pulmonary embolism.
On Sunday, October 10, while rehospitalized, Debra suffered a cardiac arrest as a result of a massive pulmonary embolism. CPR was performed in excess of two hours. The pulmonary embolism was removed by surgery that evening. Debra suffered brain damage.
Two issues are raised on appeal: (1) the trial court erred in not allowing plaintiffs to demonstrate Dr. Crisp's agency, bias and prejudice by cross-examining him about his employment relationship with Mutual Insurance Company of America (MICA), defendants' insurer, pursuant to A.R.S. § 12-569; (2) the trial court erred in precluding plaintiffs from calling Dr. Ivey as an expert witness.
A.R.S. § 12-569
MICA is the insurance carrier for most doctors in Arizona, including defendants Susong and Thompson. Dr. Crisp is MICA's vice president and a member of MICA's board of directors. He is compensated for the duties he performs for MICA.
Dr. Crisp was presented to the jury as an independent, impartial expert, who testified that defendants did not fall below the standard of care in treating Debra Barsema. Plaintiffs wished to question him about his duties, compensation and overall employment with MICA. The trial court precluded this line of cross-examination, stating that A.R.S. § 12-569 precluded its introduction. The statute provides:
"During the trial of a medical malpractice action against a licensed health care provider ... evidence that any party or that any witness testifying in such trial, hearing, or review proceeding has been or is covered by a professional liability insurance policy issued by a health care insurer established pursuant to title 20, chapter 7, article 2 [A.R.S. §§ 20-1721 to 20-1724] or that such party or witness has a financial interest in the operation of such a health care insurer arising as a result of the ownership of stock, a policy or policies of insurance, notes, including contributed surplus notes, any other evidence of indebtedness, or otherwise, shall not be received in evidence for any purpose."
As promulgated by the Arizona Supreme Court, however, Rule 411, Rules of Evidence, 17A A.R.S. provides:
"This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."
A.R.S. § 12-569 became effective on February 27, 1976, and the supreme court adopted Rule 411 on June 1, 1977. Defendants argue that for this reason, the statute takes precedence over the rule. We disagree. Pursuant to Article 6, § 5(5), the Arizona Constitution gives the supreme court the power to make rules relative to all procedural matters in any court. "Rules of evidence have generally been regarded as procedural in nature." State ex rel. Collins v. Seidel, 142 Ariz. 587, 590, 691 P.2d 678, 681 (1984); see also I Wigmore on Evidence § 7, at 462-63 n. 1 (Tillers rev. 1983). When the court adopted Rule 411, it effectively eliminated that part of A.R.S. § 12-569 which precludes the introduction of evidence indicating that a party or witness has a financial interest in the operation of a health care insurer, and it became void. As our supreme court has noted: "[S]tatutory rules shall remain in effect until modified or suspended by the rules promulgated by the supreme court." State v. Blazak, 105 Ariz. 216, 217, 462 P.2d 84, 85 (1969), quoting Arizona Podiatry Assoc. v. Director of Insurance, 101 Ariz. 544, 546, 422 P.2d 108, 110 (1966). See also A.R.S. § 12-111.
Plaintiffs also contend that A.R.S. § 12-569 is unconstitutional. This issue was not presented to the trial court and, although the general rule is that a constitutional question cannot be raised for the first time on appeal, an exception exists when the issue is one of public policy or statewide concern. Porter v. Eyer, 80 Ariz. 169, 294 P.2d 661 (1956); Arnold v. Knettle, 10 Ariz.App. 509, 460 P.2d 45 (1969). We are confronted here with the doctrine of separation of powers. We consider the constitutionality of the statute to be of statewide interest and agree that it is unconstitutional on two grounds.
As just noted, Article 6, § 5(5) grants the supreme court the power to make rules "relative to all procedural matters in any court." Accordingly, the supreme court promulgated the rules of evidence. In State ex rel. Collins v. Seidel, 142 Ariz. 587, 591, 691 P.2d 678, 682 (1984), the supreme court discussed what should be done if a statute and a rule of the supreme court are in conflict:
In this case, Rule 411 and A.R.S. § 12-569 are clearly in conflict. Evidence of Dr. Crisp's bias, interest, and agency would clearly have been admissible under Rule 411, whereas this evidence is clearly inadmissible under the statute. The clear import of § 12-569 cannot be ignored--evidence of a financial interest in the operation of a health care insurer may not be received in evidence for any purpose no matter what type of financial interest the witness possesses in the company. Because we find that A.R.S. § 12-569 cannot be reconciled with the supreme court's evidentiary rule 411, the statute is unconstitutional.
Plaintiffs also claim that A.R.S. § 12-569 is unconstitutional as a special law prohibited by the Arizona Constitution, Art. 4, pt. 2, § 19, which provides: "No local or special laws shall be enacted in any of the following cases, that is to say ... 3) Changing rules of evidence ... 13) Granting to any corporation, association, or individual, any special or exclusive privileges, immunities, or franchises." A special law applies only to certain members of a class or to an arbitrarily defined class which is not rationally related to a legitimate legislative purpose. Arizona Downs v. Arizona Horsemen's Foundation, 130 Ariz. 550, 637 P.2d 1053 (1981); State v. Loughran, 143 Ariz. 345, 693 P.2d 1000 (App.1985). In contrast, a general law is one "that confers rights and privileges or imposes restrictions on all persons of a given class where the classification has a basis in reason." State v. Loughran, supra, at 347, 693 P.2d at 1002; see also Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977). To decide whether A.R.S. § 12-569 is a special law, we must determine whether the classifications used by the legislature have a rational basis.
The purpose of the Arizona Medical Malpractice Act, A.R.S. §§ 12-561 to 12-569, has been well documented. "The Act was a legislative response to the difficulties faced by doctors and hospitals in obtaining insurance coverage at reasonable rates." Eastin v. Broomfield, 116 Ariz. at 584, 570 P.2d at 752. However, since Eastin, the Arizona Supreme Court has cast doubt on the efficacy of the Act. In Kenyon v. Hammer, 142 Ariz. 69, 84-85, 688 P.2d 961, 976-77 (1984), the court stated:
It appears that the Medical Malpractice Act has not had its intended effect in lowering malpractice premiums.
In any event, this goal cannot be accomplished at the expense of giving the plaintiffs in this malpractice action less than a fair trial. In Jones v. Munn, 140 Ariz. 216, 681 P.2d 368 (1984), the supreme court held that the potential...
To continue reading
Request your trial
-
Barsema v. Susong
...in prohibiting plaintiffs from cross-examining Dr. Crisp regarding his employment relationship with MICA. Barsema v. Susong, 156 Ariz. 304, 307, 308, 751 P.2d 964, 967, 968 (App.1986). Nevertheless, the court affirmed the judgment for defendant, holding that plaintiffs had failed to demonst......
- Mecham v. Gordon, CV-88-0044-SA