Although a recent ruling by the Arizona Court of Appeals has some commentators saying that medical malpractice plaintiffs will now face a greater burden establishing a defendant's liability, the judge who wrote the unanimous ruling for a three-judge panel states otherwise.

Judge Michael Brown says that, notwithstanding the court's acknowledgement of a lower threshold of proof required in the testimony of defendants' witnesses as compared to plaintiffs' witnesses, important safeguards and limitations continue to exist and guide evidence.

"The evidence must be relevant, the witnesses must be qualified, and the evidence must be the kind that will assist the jury," he said. The judge added that the important element of a judge's discretion is also untouched and will continue to determine "whether defense testimony is speculative or based on conjecture."

The ruling came in regard to a negligence claim brought against an Arizona hospital. The court ruled that the hospital's expert witness was by law not as limited in his testimony as was the plaintiff, who, with the burden of proof as accuser, must prove probable cause.

That is necessarily and logically a higher standard than what applies to the evidence a defendant is allowed to submit, the court stated. The panel noted that, because there is no legal burden on a defendant to prove anything, the evidence submitted on a defendant's behalf can fall short of the more rigorous probable cause standard.

And that is not unfair, the court stated, noting the limitations that continue to inform testimony. Additionally, the panel noted, plaintiffs can still cross-examine defense witnesses to challenge or rebut their testimony.

Source: Arizona Business Gazette, "Ruling aids defendants in malpractice suits" Howard Fischer, Feb. 2, 2012