Robert Baker v. University Physicians Healthcare

SUPREME COURT OF ARIZONA
En Banc

ROBERT BAKER, on behalf of ) Arizona Supreme Court
himself and all those entitled ) No. CV-12-0102-PR
to recover for the death of TARA )
BAKER, ) Court of Appeals
) Division Two
Plaintiff/Appellant, ) No. 2 CA-CV 11-0080
)
v. ) Pima County
) Superior Court
UNIVERSITY PHYSICIANS HEALTHCARE, ) No. C20097222
an Arizona corporation; BRENDA )
J. WITTMAN, M.D. and JOHN DOE )
WITTMAN, wife and husband; )
ARIZONA BOARD OF REGENTS doing ) O P I N I O N
business as UNIVERSITY OF )
ARIZONA COLLEGE OF MEDICINE, )
)
Defendants/Appellees. )
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Richard E. Gordon, Judge

VACATED AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
228 Ariz. 587, 269 P.2d 1211 (2011)

VACATED IN PART
________________________________________________________________

LAW OFFICE OF JOJENE MILLS, P.C. Tucson
By JoJene E. Mills
Attorney for Robert Baker

CAMPBELL, YOST, CLARE & NORELL, P.C. Phoenix
By Stephen C. Yost
Kenneth W. McCain
Attorneys for University Physicians Healthcare, Brenda J.
Wittman, Arizona Board of Regents, and University of Arizona
College of Medicine
HARALSON, MILLER, PITT, FELDMAN & MCANALLY P.L.C. Tucson
By Stanley G. Feldman

And

KNAPP & ROBERTS, P.C. Scottsdale
By David L. Abney
Attorneys for Amici Curiae Arizona Association for Justice/
Arizona Trial Lawyers Association

HARALSON, MILLER, PITT, FELDMAN & MCANALLY P.L.C. Phoenix
By Nathan J. Fidel
Attorney for Amici Curiae Steven Hardy and Mary Louise Hardy

JONES, SKELTON & HOCHULI, P.L.C. Phoenix
By Eileen Dennis GilBride
Attorney for Amicus Curiae Mutual Insurance Company
of Arizona

SNELL & WILMER L.L.P. Phoenix
By Barry D. Halpern
Sara J. Agne
Attorneys for Amicus Curiae Arizona Medical Association
________________________________________________________________

B A L E S, Vice Chief Justice

¶1 This case concerns the interpretation and

constitutionality of A.R.S. § 12-2604, which sets requirements

for experts who testify about the appropriate standard of care

in medical malpractice actions.

I.

¶2 Seventeen-year-old Tara Baker was treated for blood

clots by Dr. Brenda Wittman, an employee of University

Physicians Healthcare and the Arizona Board of Regents. Ms.

Baker later died and her father, Mr. Robert Baker, brought this

wrongful-death action alleging medical malpractice against Dr.

2
Wittman, her spouse, and her employers (collectively “UPH”).

¶3 Dr. Wittman is certified by the American Board of

Pediatrics in pediatrics and in pediatric hematology-oncology.

The American Board of Medical Specialties (“ABMS”) recognizes

pediatrics as a specialty and pediatric hematology-oncology as a

subspecialty of pediatrics. To testify about the standard of

care owed to Ms. Baker by Dr. Wittman, Mr. Baker disclosed Dr.

Robert Brouillard as his expert. Dr. Brouillard is certified by

the American Board of Internal Medicine in internal medicine and

in hematology and medical oncology. The ABMS recognizes

internal medicine as a specialty and hematology and medical

oncology as subspecialties of internal medicine.

¶4 UPH moved for summary judgment, arguing that Dr.

Brouillard was not a qualified expert under § 12-2604. The

statute provides in part:

A. In an action alleging medical malpractice, a
person shall not give expert testimony on the
appropriate standard of practice or care unless the
person is licensed as a health professional in this
state or another state and the person meets the
following criteria:

1. If the party against whom or on whose behalf the
testimony is offered is or claims to be a specialist,
specializes at the time of the occurrence that is the
basis for the action in the same specialty or claimed
specialty as the party against whom or on whose behalf
the testimony is offered. If the party against whom
or on whose behalf the testimony is offered is or
claims to be a specialist who is board certified, the
expert witness shall be a specialist who is board
certified in that specialty or claimed specialty.

3
 2. During the year immediately preceding the
occurrence giving rise to the lawsuit, devoted a
majority of the person's professional time to either
or both of the following:

(a) The active clinical practice of the same health
profession as the defendant and, if the defendant is
or claims to be a specialist, in the same specialty or
claimed specialty.

(b) The instruction of students in an accredited
health professional school or accredited residency or
clinical research program in the same health
profession as the defendant and, if the defendant is
or claims to be a specialist, in an accredited health
professional school or accredited residency or
clinical research program in the same specialty or
claimed specialty.

A.R.S. § 12-2604(A)(1)-(2).

¶5 The trial court granted UPH’s motion for summary

judgment. Determining that the relevant specialty was pediatric

hematology, the trial court ruled that Dr. Brouillard was not a

qualified expert because he, unlike Dr. Wittman, was not

certified in that specialty. (Although the attorneys and the

trial court referred to “pediatric hematology,” the correct term

is “pediatric hematology-oncology.”) The court also rejected

Mr. Baker’s constitutional challenges to the statute.

¶6 The court of appeals agreed that Dr. Brouillard was

not qualified but reversed the trial court’s decision in part.

It ruled that the word “specialty” in § 12-2604 refers to one of

the twenty-four specialty boards that make up the ABMS, rather

than subspecialties such as pediatric hematology-oncology.

4
Baker v. Univ. Physicians Healthcare, 228 Ariz. 587, 590-91

¶¶ 8, 13, 269 P.3d 1211, 1214-15 (App. 2012). The court

declined to follow Awsienko v. Cohen, in which another appellate

panel suggested that “specialty” includes ABMS subspecialties.

227 Ariz. 256, 258, 260 ¶¶ 9, 17-18, 257 P.3d 175, 177, 179

(App. 2011). Under the definition adopted by the court of

appeals here, Dr. Brouillard was not qualified as an expert

because he was not board certified in pediatrics, the ABMS

specialty in which Dr. Wittman was board certified. Baker, 228

Ariz. at 591 ¶ 11, 269 P.3d at 1215. Remanding, the court of

appeals instructed the trial court to give Mr. Baker time to

find another expert who is board certified in pediatrics. Id.

at 593 ¶ 25, 269 P.3d at 1217.

¶7 We granted review to address issues of statewide

importance regarding the application of § 12-2604. We have

jurisdiction under Article 6, Section 5(3) of Arizona’s

Constitution and A.R.S. § 12-120.24.

II.

¶8 We interpret statutes to give effect to the

legislature’s intent, looking first to the statutory language

itself. State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133

(1993). When the language is clear and unambiguous, and thus

subject to only one reasonable meaning, we apply the language

without using other means of statutory construction. State v.

5
Gomez, 212 Ariz. 55, 57 ¶ 11, 127 P.3d 873, 875 (2006). If,

however, the language is ambiguous, “‘we consider the statute’s

context; its . . . subject matter, and historical background;

its effects and consequences; and its spirit and purpose.’” Id.

(quoting Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268, 872 P.2d

668, 672 (1994)).

¶9 The general intent of § 12-2604 is clear: in a medical

malpractice action, only physicians with comparable training and

experience may provide expert testimony regarding whether the

treating physician provided appropriate care. The statute,

however, is ambiguous regarding its application to particular

cases. If a treating physician is or claims to be a board-

certified specialist, the statute provides that a testifying

expert must be board certified in the same specialty. A.R.S.

§ 12-2604(A). But the statute does not define the terms

“specialist” or “board certified,” and Arizona law does not

otherwise provide general definitions for these terms. A

physician need not be considered a specialist in order to

practice in a certain area of medicine, and physicians who

specialize may provide medical treatment outside their

specialty. Moreover, different specialists may be prepared by

training and experience to treat the same medical issue for a

particular patient. Finally, physicians may hold multiple

certifications from different certifying bodies.

6
¶10 Applying § 12-2604 requires us to interpret its terms

in a way that comports with the legislature’s intent and

provides guidance to those affected by its provisions. We first

consider the statute’s application to testimony about the

“appropriate standard” of care and then consider the meaning of

the terms specialist, specialty, and board certified.

A.

¶11 The statute sets qualifications for witnesses who may

provide “expert testimony on the appropriate standard of

practice or care.” A.R.S. § 12-2604(A) (emphasis added). This

language informs our interpretation of the other statutory

provisions specifying qualifications for expert witnesses.

¶12 In medical malpractice cases, plaintiffs must show

that a health care provider breached the appropriate standard of

care and the breach resulted in injury. Id. § 12-563. The

standard of care, however, necessarily depends on the particular

care or treatment at issue. See id. § 12-563(1) (describing the

standard of care broadly, as “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”). Thus, only if

the care or treatment involved a medical specialty will

expertise in that specialty be relevant to the standard of care

in a particular case.

7
¶13 With regard to treating physicians who are or claim to

be specialists, § 12-2604(A)(1) requires testifying experts to

“specialize[] . . . in the same specialty or claimed specialty

as the party against whom or on whose behalf the testimony is

offered.” This requirement, however, presumes that the care or

treatment at issue was within the specialty of the treating

physician. If a treating physician practices outside his or her

specialty, the statute does not require a testifying expert to

possess qualifications in an irrelevant medical specialty, nor

would any such requirement make sense. See Baker, 228 Ariz. at

594 ¶ 28, 269 P.3d at 1218 (Eckerstrom, J., concurring)

(“[E]xpert witnesses need not mirror those specialties of the

defendant physician that are not pertinent to the relevant

injury or procedure.”); Woodard v. Custer, 719 N.W.2d 842, 849-

50 (Mich. 2006) (reasoning that a statute similar to § 12-2604

should not be read to require irrelevant specialties and board

certifications); cf. Taylor v. DiRico, 124 Ariz. 513, 518-19,

606 P.2d 3, 8-9 (1980) (recognizing that common law does not

require expertise irrelevant to standard of care and holding

trial court did not err in permitting an internist to testify

against a surgeon with respect to “standard of care in the

overall treatment of the patient before and after surgery”).

¶14 We accordingly interpret § 12-2604(A) as requiring

that a testifying expert specialize “in the same specialty or

8
claimed specialty” as the treating physician only when the care

or treatment at issue was within that specialty.

B.

¶15 We next turn to the meaning of “specialty” and

“specialist” for purposes of § 12-2604. In this regard, medical

and general dictionary definitions provide some limited

guidance. Cf. State v. Jones, 188 Ariz. 388, 392, 937 P.2d 310,

314 (1997) (relying on dictionaries to identify ordinary meaning

of statutory words). Dorland’s Illustrated Medical Dictionary,

for example, defines “specialist” as “a physician whose practice

is limited to a particular branch of medicine or surgery,

especially one who, by virtue of advanced training, is certified

by a specialty board as being qualified to so limit his

practice” and “specialty” as “the field of practice of a

specialist.” Dorland’s Illustrated Medical Dictionary 1767

(31st ed. 2007). Similarly, The American Heritage Dictionary

defines “specialist” as “[a] physician whose practice is limited

to a particular branch of medicine or surgery, especially one

who is certified by a board of physicians: a specialist in

oncology.” The American Heritage Dictionary of the English

Language 1681 (5th ed. 2011). It defines “specialty” as “[a]

branch of medicine or surgery, such as cardiology or

neurosurgery, in which a physician specializes; the field or

practice of a specialist.” Id.

9
¶16 Dictionary definitions, however, do not resolve the

issues before us. Also relevant are the other provisions of

§ 12-2604. The statute requires a testifying expert to have

spent a majority of his or her professional time practicing or

teaching in the specialty or claimed specialty during the year

preceding the occurrence. A.R.S. § 12-2604(A)(2). Because the

statute seeks to ensure that testifying experts have experience

and training comparable to the treating physician, this

requirement suggests that in order for the treating physician to

be a specialist, he or she must have similarly spent a majority

of his or her professional time practicing or teaching in the

claimed specialty.

¶17 Concluding that a “specialist” is someone who devotes

most of his or her professional time to a particular “specialty”

still, however, leaves us with the challenge of defining the

term “specialty.” The statute refers both to “claimed

specialty” and physicians who “claim[] to be a specialist.” Id.

§ 12-2604. But the statute does not suggest that the

legislature intended the meaning of “specialty” to turn on how a

treating physician might describe his or her own particular

practice. Instead, the statute is more reasonably interpreted

as contemplating that “specialty” has a more general,

objectively determinable meaning. In other words, a physician

might “claim” to be a specialist, but the statute does not mean

10
that a “specialty” is whatever the treating physician claims.

¶18 The court of appeals concluded that “specialty” refers

to an area of practice occupied by one of the twenty-four ABMS

member boards, such as pediatrics. Defining “specialty” by

referring to areas in which physicians can obtain certification

is a reasonable approach because § 12-2604 itself recognizes

that physicians may become board certified in particular

specialties. See id. § 12-2604(A)(1) (referencing “a specialist

who is board certified”).

¶19 Board certification is a voluntary process typically

administered by organizations such as national specialty boards.

See John J. Smith, Legal Implications of Specialty Board

Certification, 17 J. Legal Med. 73, 73-76 (1996); 1 Dan J.

Tennenhouse, 1 Attorneys Medical Deskbook 4th § 7:4, at 7-6

(2006). Certification requires graduation from an accredited

medical school, successful completion of residency or other

training, a certification exam, and, frequently, continuing

education and practice requirements. Smith, supra, at 74.

¶20 Although a physician can practice general and

specialty medicine without board certification, obtaining

certification may confer certain advantages such as hospital

privileges, lower malpractice insurance rates, and higher

salaries. Smith, supra, at 77. Most medical school graduates

in the United States participate in residency training and then

11
seek board certification. Mayo Found. for Med. Educ. & Research

v. United States, 131 S. Ct. 704, 708 (2011); Smith, supra, at

73-74; see also American Board of Medical Specialties, Better

Patient Care is Built on Higher Standards (2012)

http://www.abms.org/About_ABMS/pdf/ABMS_Corp_Brochure.pdf

(representing that ABMS member boards have certified

approximately 80-85% of all U.S. licensed physicians).

¶21 Defining “specialty” by reference to practice areas in

which a physician may obtain board certification is a workable

approach because these areas are objectively identifiable and

reflect recognition by certifying bodies that certain practice

areas involve distinct training and experience. See Thomas B.

Ferguson, Introduction to Legal Aspects of Certification and

Accreditation, at ix-x (Donald G. Langsley ed. 1983) (describing

the creation of the certification process as the “final step”

following the specialization of medicine and the rise of

accredited specialty training programs). We construe

“specialty” for purposes of § 12-2604 as referring to a limited

area of medicine in which a physician is or may become board

certified. See Woodard, 719 N.W.2d at 851 (interpreting a

statute similar to § 12-2604 as “mak[ing] it clear that a

physician can be a specialist who is not board certified” and

“that a ‘specialist’ is somebody who can potentially become

board certified”).

12
¶22 We disagree, however, with the court of appeals’

conclusion that § 12-2604 defines “specialty” solely with regard

to the areas of medicine occupied by the twenty-four ABMS member

boards and does not include subspecialties. See Baker, 228

Ariz. at 590 ¶ 8, 269 P.3d at 1214. The court of appeals relied

upon Arizona insurance statutes that do not refer to the ABMS or

its constituent boards. See id. at ¶ 7 (citing A.R.S. §§ 20-

841.04(F), 20-1057.01(E), 20-2532(A)(2), 20-2538(B)); see also

A.R.S. § 20-1057.01(E) (referencing “a specialty discipline that

is recognized by an American medical specialty board” (emphasis

added)).

¶23 By its terms, § 12-2604 does not confine the word

“specialty” to only the twenty-four ABMS member boards. As

commonly understood, a “subspecialty” is a more focused area of

practice encompassed by a broader specialty, but the

subspecialty is itself a specialty. See Woodard, 719 N.W.2d at

851 (relying on dictionary definitions to conclude that a

subspecialty “is a particular branch of medicine or

surgery . . . that falls under a specialty or within the

hierarchy of that specialty”); The American Heritage Dictionary,

supra ¶ 15, at 1734 (defining the prefix “sub” as “[b]elow;

under; [and] beneath” as well as “[s]ubordinate; [and]

secondary”).

¶24 By excluding recognized subspecialties from the

13
definition of “specialty,” the court of appeals’ construction of

§ 12-2604 is both too broad and too narrow. It would, for

example, allow a pediatrician certified by the American Board of

Pediatrics but who does not practice in hematology to testify

about the care provided by a pediatric hematologist - here, Dr.

Wittman – to a seventeen-year-old patient suffering from a

serious blood disorder. This is contrary to the statute’s goal

of ensuring that experts have qualifications and experience

comparable to the physician whose conduct is at issue. The

opinion below also too narrowly limits “specialty” as embracing

only the twenty-four ABMS member boards, thereby excluding a

broad range of practice areas certified by these boards as

subspecialties or by other certifying bodies.

¶25 UPH notes that the statute refers to a physician’s

“claimed specialty,” and suggests that this term could embrace a

subspecialty, such as pediatric hematology-oncology, if the

treating physician identified it as his or her “claimed”

specialty. We reject this approach because, as noted above, we

do not construe the statute to turn on an individual physician’s

labeling of his or her practice as a particular specialty.

Instead, we conclude that the word “claimed” in this context

refers to situations in which a physician purports to specialize

in an area that is eligible for board certification, regardless

of whether the physician in fact limits his or her practice to

14
that area. Cf. Lo v. Lee, 230 Ariz. 457, 460 ¶ 9, 286 P.3d 801,

804 (App. 2012) (holding that a defendant physician with board

certification in ophthalmology also had, through his public

assertions, a claimed specialty of plastic surgery).

¶26 Whether the relevant “specialty” is an area of general

certification, like pediatrics, or subspecialty certification,

like pediatric hematology-oncology, will depend on the

circumstances of a particular case. Just as a physician who is

a specialist may practice outside of his or her specialty, a

physician who is a subspecialist, such as in pediatric

hematology-oncology, may afford treatment or care that does not

involve that particular subspecialty but is embraced by the

broader specialty of pediatrics. In that event, § 12-2604(A)

would require testifying experts to specialize in pediatrics.

C.

¶27 Applying § 12-2604 in a case in which the treating

physician is or claims to be a specialist (that is, to devote a

majority of his or her practice to an area eligible for board

certification) requires a trial court to make several

determinations. The court must initially determine if the care

or treatment at issue involves the identified specialty, which

may include recognized subspecialties. If it does, testifying

experts must share the same specialty as the treating physician.

The trial court then must determine if the treating physician is

15
board certified within that specialty. If so, any testifying

expert must also be board certified in that specialty. (We have

no occasion here to interpret the statutory language regarding a

treating physician who “claims to be a specialist who is board

certified,” as Dr. Wittman indisputably is board certified.)

Depending on the circumstances, the relevant specialty may be a

subspecialty in which the treating physician is board certified.

¶28 The statute does not require a testifying expert to

have identical certifications to the treating physician (e.g.,

when the treating physician has multiple certifications), but

only that the expert be certified in the specialty at issue in

the particular case. Under § 12-2604(A)(2), proposed experts

must have spent a “majority of [their] professional time” during

the year preceding the occurrence either practicing or teaching

in that specialty or claimed specialty. Because an individual

cannot devote a “majority” of his or her time to more than one

specialty, the statute suggests that only the one relevant

specialty need be matched. See Woodard, 719 N.W.2d at 850.

D.

¶29 The parties contested below whether the relevant

specialty was pediatric hematology-oncology or hematology. The

trial court determined that pediatric hematology, in which Dr.

Wittman was board certified, was the relevant specialty. (As

noted above, the correct terminology is pediatric hematology-

16
oncology.) Because Dr. Brouillard was not certified in this

specialty, the trial court ruled that he was not qualified as an

expert under § 12-2604. The trial court then granted summary

judgment to UPH because, without expert testimony, Mr. Baker

lacked the required evidence to establish the standard of care

and causation.

¶30 Apart from issues of statutory interpretation, which

we review de novo, we review trial court determinations on

expert qualifications for an abuse of discretion. State v.

Keener, 110 Ariz. 462, 465-66, 520 P.2d 510, 513-14 (1974).

This standard of review equally applies to admissibility

questions in summary judgment proceedings. See Gen. Elec. Co.

v. Joiner, 522 U.S. 136, 141-42 (1997); Mohave Elec. Co-op.,

Inc. v. Byers, 189 Ariz. 292, 301, 942 P.2d 451, 460 (App.

1997); Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 997

A.2d 954, 957 (N.J. 2010).

¶31 The trial court correctly interpreted § 12-2604 to

require a testifying expert to be board certified in the same

specialty as Dr. Wittman if she was practicing within that

specialty while providing the treatment at issue. As the trial

court observed, record evidence suggests that both non-pediatric

and pediatric hematologists could have treated a seventeen-year-

old patient for a blood disorder. The trial court did not abuse

its discretion in concluding that Dr. Wittman was practicing

17
within her specialty of pediatric hematology-oncology. Section

12-2604 therefore required a testifying expert to be certified

in that specialty, even if physicians in other specialties might

also have competently provided the treatment. The trial court

did not err in ruling that Dr. Brouillard was not qualified as

an expert.

III.

¶32 We next consider Mr. Baker’s argument that, if Dr.

Brouillard is not a qualified expert, the statute is

unconstitutional. He contends that § 12-2604 violates equal

protection and access to the court guarantees under the Federal

and Arizona Constitutions, as well as Arizona’s anti-abrogation

clause and prohibition against special laws. He further urges

us to reconsider our recent holding that the statute does not

violate the separation of powers. See Seisinger v. Siebel, 220

Ariz. 85, 96 ¶ 42, 203 P.3d 483, 494 (2009).

¶33 Our analysis is guided by “a strong presumption

supporting the constitutionality of a legislative enactment and

the party asserting its unconstitutionality bears the burden of

overcoming the presumption.” Eastin v. Broomfield, 116 Ariz.

576, 580, 570 P.2d 744, 748 (1977).

A.

¶34 Article 18, Section 6 of the Arizona Constitution

states that “[t]he right of action to recover damages for

18
injuries shall never be abrogated.” It prohibits “abrogation of

all common law actions for negligence, intentional torts, strict

liability, defamation, and other actions in tort which trace

origins to the common law.” Cronin v. Sheldon, 195 Ariz. 531,

538 ¶ 35, 991 P.2d 231, 238 (1999). The legislature, however,

may “regulate the cause of action for negligence so long as it

leaves a claimant reasonable alternatives or choices which will

enable him or her to bring the action.” Barrio v. San Manuel

Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 106, 692 P.2d

280, 285 (1984).

¶35 Although the statute might deny a plaintiff his expert

of choice, the record does not show that Mr. Baker lacks

“reasonable alternatives or choices which will enable him or

her to bring the action.” Id.; accord Governale v. Lieberman,

226 Ariz. 443, 447 ¶ 9, 250 P.3d 220, 224 (App. 2011). Section

12-2604 therefore permissibly regulates rather than abrogates

Mr. Baker’s right to bring a medical malpractice suit.

B.

¶36 Both the anti-abrogation clause of the Arizona

Constitution and the Fourteenth Amendment of the Federal

Constitution protect a plaintiff’s right of access to the

courts. Boddie v. Connecticut, 401 U.S. 371, 377 (1971);

Cronin, 195 Ariz. at 538-39 ¶ 35, 991 P.2d at 238-39. A court

may not, consistent with the Arizona Constitution, prohibit a

19
plaintiff from bringing a common law tort action. Cronin, 195

Ariz. at 538-39 ¶ 35, 991 P.2d at 238-39. Nor may a court,

under the Due Process Clause, deprive a plaintiff of a

meaningful opportunity to be heard. Boddie, 401 U.S. at 377.

¶37 Although plaintiffs might face greater difficulties in

finding a qualified expert because of a smaller expert pool,

§ 12-2604 does not bar medical malpractice lawsuits or preclude

plaintiffs from recovery in such actions. Accordingly,

§ 12-2604 does not violate the open-court guarantees of the

Arizona and Federal Constitutions.

C.

¶38 Mr. Baker also contends that, by burdening his right

to bring a medical malpractice action, § 12-2604 denies him

equal protection under the Federal and Arizona Constitutions.

He argues that the statute discriminates against plaintiffs with

claims “against licensed healthcare professionals” and also

discriminates “between classes of malpractice victims.” For

support, he states that twenty pediatric hematologists refused

to testify and the trial court did not permit his expert, a non-

pediatric hematologist, to testify.

¶39 The right to bring a negligence action, although not

fundamental under the Federal Constitution, is a fundamental

right protected by the anti-abrogation clause of the Arizona

Constitution. Kenyon v. Hammer, 142 Ariz. 69, 83, 688 P.2d 961,

20
976 (1984); Ariz. Const. art. 18, § 6.

¶40 The trial court rejected Mr. Baker’s equal protection

arguments because they had already been addressed and rejected

by the court of appeals in Governale. In that case, the court

ruled that § 12-2604 does not violate the equal protection

clause of the Arizona Constitution. Governale, 226 Ariz. at 449

¶ 19, 250 P.3d at 226. Holding that the statute does not affect

the fundamental right to bring a medical malpractice action, the

court applied rational basis scrutiny to uphold the statute

because it is rationally related to a legitimate governmental

interest. Id. at 448-49 ¶¶ 15-19, 250 P.3d at 225-26. The

court of appeals in this case affirmed the trial court’s ruling,

holding that Mr. Baker failed to distinguish his equal

protection claim from that raised in Governale. Baker, 228

Ariz. at 593 ¶ 22, 269 P.3d at 1217.

¶41 This Court has stated that, “[i]f [the right to bring

an action for damages] is ‘fundamental,’ the strict scrutiny

analysis must be applied.” Kenyon, 142 Ariz. at 79, 688 P.2d at

971. To survive a strict scrutiny analysis, a statute must

serve a compelling state interest and be necessary to achieve

that interest. Id. at 78, 688 P.2d at 970. However, this Court

has sometimes applied rational basis review rather than strict

scrutiny to medical malpractice statutes that allegedly affected

plaintiffs’ rights. See Eastin, 116 Ariz. at 582-86, 570 P.2d

21
at 750-54 (applying rational basis scrutiny).

¶42 Our analysis in cases like Kenyon and Eastin has not

distinguished between equal protection claims based on alleged

violations of other constitutional provisions, such as the anti-

abrogation clause, and claims based upon an impermissible

classification. We now clarify our prior decisions in this

respect.

¶43 This Court in Eastin applied a rational basis test to

analyze equal protection challenges to a medical malpractice

statute creating a medical liability review panel, abrogating

the collateral source rule, and requiring a $2000 cost bond.

Id. We observed that the “traditional equal protection test,”

requiring challenged legislation to have a “reasonable basis,”

should apply in the area of economics and social welfare. Id.

at 582, 570 P.2d at 750 (internal quotation marks omitted)

(quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)). We

held that the provisions creating a medical review panel, by

providing a mechanism to separate meritorious medical

malpractice claims from frivolous ones, did not offend Arizona’s

equal protection clause. Id. at 582-83, 570 P.2d at 750-51.

Likewise, we reasoned that the abolition of the collateral

source evidentiary rule was reasonably related to the

legislative goal of decreasing malpractice premiums by scaling

down the size of jury verdicts. Id. at 585, 570 P.2d at 753.

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We did, however, hold that requiring a plaintiff to post a $2000

cost bond violated the privileges and immunities clause of the

Arizona Constitution because it limited access to the courts.

Id. at 585-86, 570 P.2d at 753-54.

¶44 In Kenyon, however, the Court held that the right to

bring an action to recover damages is fundamental under the

Arizona Constitution and applied strict scrutiny to an equal

protection challenge to a medical malpractice statute. 142

Ariz. at 83, 688 P.2d at 975. Although Eastin had generally

applied a rational basis standard in reviewing a medical

malpractice statute, and struck down only the $2000 bond

requirement that affected access to the courts, the Kenyon court

declared that Eastin “stands for the proposition that where the

fundamental right to bring or pursue the action is affected,

this court will not apply the rational basis analysis.” Id.

¶45 Relying on Kenyon, Mr. Baker urges the Court to apply

greater scrutiny to an equal protection claim based on a

violation of the anti-abrogation clause than would apply to an

alleged violation of the anti-abrogation clause itself. We

decline to do so.

¶46 We have recognized in the First Amendment context that

the same level of scrutiny - intermediate scrutiny – applies to

equal protection claims involving the First Amendment as applies

to First Amendment claims themselves. Coleman v. City of Mesa,

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230 Ariz. 352, 362 ¶ 41, 284 P.3d 863, 873 (2012). Consistent

with several other courts, we have recognized that applying

strict scrutiny “simply because it burdened constitutionally

protected speech” would nullify the intermediate-scrutiny test

applied to content-neutral time, place, and manner restrictions.

Id. at ¶ 42 (quoting Brown v. City of Pittsburgh, 586 F.3d 263,

283 n.22 (3d Cir. 2009)).

¶47 Similarly, we see no reason to apply a higher level of

scrutiny to an equal protection claim involving non-suspect

classifications grounded in the anti-abrogation clause of the

Arizona Constitution than to the abrogation claim itself. See

Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a

particular Amendment provides an explicit textual source of

constitutional protection against a particular sort of

government behavior, that Amendment, not the more generalized

notion of substantive due process, must be the guide for

analyzing these claims.” (internal quotation marks omitted)

(quoting Graham v. Connor, 490 U.S. 386, 395 (1989))).

¶48 Our declining to apply strict scrutiny does not itself

preclude Mr. Baker’s equal protection claim. Cf. Governale, 226

Ariz. at 448-49 ¶¶ 15, 17-19, 250 P.3d at 225-26 (holding that

§ 12-2604 does not affect a fundamental right and that, under a

rational basis analysis, the statute does not violate the equal

protection provision of the Arizona Constitution).

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¶49 To the extent Mr. Baker claims the statute

impermissibly discriminates among plaintiffs, the classification

is reviewed under a rational basis standard because no suspect

class is implicated. San Antonio Indep. Sch. Dist. v.

Rodriguez, 411 U.S. 1, 16-17 (1973). By elevating the requisite

qualifications for experts in the medical malpractice context,

§ 12-2604 conceivably furthers a legitimate interest by

decreasing medical malpractice insurance rates and the

reluctance of physicians to practice in Arizona. See Seisinger,

220 Ariz. at 96 ¶ 41, 203 P.3d at 494. Because a rational basis

supports the “heightened level of proof,” id. at ¶ 40, the

statute does not violate the equal protection provisions of the

Arizona or Federal Constitutions.

D.

¶50 Section 12-2604 also does not violate Arizona’s

constitutional prohibition on the enactment of “special laws” in

areas that include “[c]hanging [the] rules of evidence,”

“[r]egulating the practice of courts of justice,” and the

“[l]imitation of civil actions.” Ariz. Const. art. 4, pt. 2,

§ 19(3), (5), (6). To determine whether a statute is a

prohibited special law, the Court considers: (i) “whether the

classification has a reasonable basis,” (ii) “whether the

classification encompasses all members of the relevant class,”

and (iii) “whether the class is elastic,” permitting members to

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move in and out. See Republic Inv. Fund I v. Town of Surprise,

166 Ariz. 143, 149, 800 P.2d 1251, 1257 (1990).

¶51 As discussed, supra Part III.C, § 12-2604 has a

rational basis because it is reasonably related to the goals of

ameliorating the public health problems of rising medical

malpractice insurance rates and the reluctance of qualified

physicians to practice in Arizona, Seisinger, 220 Ariz. at 96

¶ 41, 203 P.3d at 494. The statute focuses on the

qualifications of experts, offered by any party, regarding the

appropriate standard of care by a health professional in a

medical malpractice action. Because it applies to any party

seeking to offer an expert, § 12-2604 encompasses the relevant

class. Republic Inv. Fund I, 166 Ariz. at 150, 800 P.2d at

1258. Further, the class is elastic because the identities of

parties and their experts will change over time. See Governale,

226 Ariz. at 449-50 ¶ 21, 250 P.3d at 226-27. Accordingly, the

statute is not a special law prohibited by the Arizona

Constitution.

E.

¶52 Finally, we decline to reconsider our holding in

Seisinger, 220 Ariz. at 96 ¶ 42, 203 P.3d at 494, that § 12-2604

does not violate the separation of powers doctrine.

IV.

¶53 For the foregoing reasons, we vacate the court of

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appeals’ opinion, except ¶ 1 insofar as it vacates the trial

court’s judgment and directs the trial court on remand to allow

Mr. Baker an opportunity to identify an expert with the

qualifications required by A.R.S. § 12-2604 (an issue we

declined to review), and remand the case to the trial court for

proceedings consistent with this opinion.

__________________________________
Scott Bales, Vice Chief Justice

CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

__________________________________
A. John Pelander, Justice

__________________________________
Robert M. Brutinel, Justice

__________________________________
Michael J. Brown, Judge*

*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Michael J. Brown, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.

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