Gross Negligence Is Not a “Reasonable Alternative”: Arizona’s Anti‑Abrogation Clause Invalidates Pandemic Immunity for Ordinary Medical Negligence, but a Clear‑and‑Convincing Burden Survives

Introduction

This case addresses whether the Arizona Legislature, responding to the COVID-19 pandemic, could insulate health care providers from ordinary negligence suits by permitting liability only upon proof of wilful misconduct or gross negligence. The Arizona Supreme Court held that A.R.S. § 12‑516(A) violates the state Constitution’s anti‑abrogation clause (Ariz. Const. art. 18, § 6) insofar as it bars claims for ordinary negligence against health professionals and institutions “providing health care services in support of” a declared public health emergency. At the same time, the Court upheld and severed the statute’s heightened “clear and convincing evidence” burden of proof, allowing ordinary negligence claims to proceed during pandemics under that higher evidentiary standard.

Parties and posture: Plaintiff Robin Roebuck, a heart transplant recipient hospitalized at Mayo Clinic for COVID-19, alleged he suffered significant injury when an arterial blood gas test was negligently performed. He did not allege gross negligence. The superior court granted Mayo summary judgment under § 12‑516(A), holding ordinary negligence claims were barred for pandemic-related care. The court of appeals reversed, finding an anti‑abrogation violation. The Supreme Court granted review, vacated part of the appellate reasoning, reversed the trial court, and remanded.

Key issues:

Does § 12‑516(A)’s restriction of liability to wilful misconduct or gross negligence abrogate the constitutional right to recover for injuries caused by ordinary medical negligence?
Is a gross‑negligence‑only regime a “reasonable alternative” that merely regulates (rather than abolishes) the protected right?
Does emergency context permit “balancing” that would relax anti‑abrogation’s categorical protection?
Is derivative sovereign immunity available to private hospitals responding to a public health emergency?
Can the statute’s clear‑and‑convincing burden be severed and applied to ordinary negligence claims?

Summary of the Opinion

Holding on anti‑abrogation: Section 12‑516(A) unconstitutionally abrogates the protected right of action to recover for injuries caused by the ordinary negligence of health care providers in pandemic care. The availability of a gross negligence claim is not a “reasonable alternative” to an ordinary negligence action.
Framing the protected right: The right of action is identified by “the nature of the injury and the defendant”—here, the right to sue a health care provider for injuries caused by that provider’s negligence—not by the broad category of “negligence” in the abstract.
Reasoning: Gross negligence adds a quasi‑intent mental state (reckless indifference) not required for negligence, transforming the claim’s character and creating insurmountable hurdles for a foreseeable class of patients injured by ordinary negligence during a pandemic.
No emergency balancing: The anti‑abrogation clause states that such rights “shall never be abrogated.” Courts may not balance away that guarantee in emergencies.
No derivative sovereign immunity: Arizona does not recognize derivative sovereign immunity for private actors absent a contract or agency relationship with the government; none existed here.
Severability: The clause elevating the burden of proof to “clear and convincing evidence” is constitutional and severable. Ordinary negligence claims may proceed during a pandemic but must be proven by clear and convincing evidence.
Disposition: Court of appeals’ decision affirmed in result but vacated in part; superior court’s summary judgment reversed; case remanded.

Detailed Analysis

I. Precedents Cited and How They Shaped the Decision

Anti‑abrogation framework. The Court applied the two‑step test from Duncan v. Scottsdale Medical Imaging, Ltd., 205 Ariz. 306 (2003): (1) whether the claimed right of action is protected by art. 18, § 6; and (2) whether the statute abrogates or merely regulates that right. Barrio v. San Manuel Div. Hosp., 143 Ariz. 101 (1984), supplies the “reasonable election” test: regulation is permissible only if it leaves claimants a reasonable alternative to bring the action; otherwise, it is abrogation.

Step one—Protected right. Echoing Torres v. JAI Dining Services (Phoenix), Inc., 256 Ariz. 212 (2023), the Court emphasized anti‑abrogation protects rights of action that existed in 1912 or are based on such rights, identified by injury and defendant type. Medical malpractice—negligence suits against physicians and hospitals—falls squarely within that category. See Francisco v. Affiliated Urologists Ltd., 258 Ariz. 95 (2024) (anti‑abrogation protects all common‑law negligence actions, including medical malpractice); Seisinger v. Siebel, 220 Ariz. 85 (2009); Rice v. Tissaw, 57 Ariz. 230 (1941); Butler v. Rule, 29 Ariz. 405 (1926).

Step two—Abrogation vs. regulation. The Court built on Duncan and Hazine v. Montgomery Elevator Co., 176 Ariz. 340 (1993), recognizing that when a statute eliminates a theory of recovery in a way that shifts the protected interests—e.g., from strict liability to negligence (Hazine)—the change may constitute abrogation. It analogized to Duncan’s point that imposing negligence elements on intentional torts “dramatically transforms” those claims.

Gross vs. ordinary negligence. While gross negligence and ordinary negligence are often characterized as degrees within the same tort, see DeElena v. S. Pac. Co., 121 Ariz. 563 (1979); Williams v. Thude, 188 Ariz. 257 (1997); Garibay v. Johnson ex rel. Cnty. of Pima, 259 Ariz. 248 (2025), gross negligence adds a quasi‑intent element—reckless indifference—beyond ordinary negligence’s conduct‑based standard. See Womack v. Preach, 63 Ariz. 390 (1945); Scott v. Scott, 75 Ariz. 116 (1953); Nichols v. Baker, 101 Ariz. 151 (1966); Restatement (Second) of Torts §§ 500–501. That additional mental state places gross negligence closer to the intentional tort family, changing the nature of the claim.

Permissible regulation. The Court reaffirmed that the Legislature may regulate tort actions—e.g., expert qualifications (Baker v. University Physicians Healthcare, 231 Ariz. 379 (2013)); abolishing joint and several liability in products cases (State Farm v. Premier Mfg., 217 Ariz. 222 (2007)); procedural and evidentiary requirements (Gorney v. Meaney, 214 Ariz. 226 (App. 2007); Francisco)—and may define or clarify standards of care (St. George v. Plimpton, 241 Ariz. 163 (App. 2016); Tellez v. Saban, 188 Ariz. 165 (App. 1996); Restatement § 285). It can even raise burdens of proof as substantive law. See Valerie M. v. ADES, 219 Ariz. 331 (2009); Seisinger, 220 Ariz. at 93 ¶ 30.

Insurmountable hurdles test. Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9 (1986), cautions that regulation crosses into abrogation if it creates “insurmountable hurdles for large and foreseeable classes of victims.” The Court found § 12‑516(A) did exactly that by eliminating recovery for ordinary negligence during pandemics.

Emergency “balancing.” The Attorney General urged an emergency balancing overlay. The Court rejected that approach outright, relying on the absolute textual command—“shall never be abrogated”—and mandatory constitutional provisions (Ariz. Const. art. 2, § 32). See Kenyon v. Hammer, 142 Ariz. 69 (1984).

Derivative sovereign immunity. The Court declined to adopt federal derivative sovereign immunity (Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940); Campbell‑Ewald Co. v. Gomez, 577 U.S. 153 (2016); Patterson v. City of Danville, 875 S.E.2d 65 (Va. 2022)), especially absent any contract or agency relationship with the state. Arizona law recognizes no such doctrine applicable here.

Severability. Applying Selective Life Ins. Co. v. Equitable Life, 101 Ariz. 594 (1967); Millett v. Frohmiller, 66 Ariz. 339 (1948); Fann v. State, 251 Ariz. 425 (2021), the Court preserved the statute’s clear‑and‑convincing burden—consistent with comparable statutes like A.R.S. § 12‑572 (ER cases)—as independently serving the Legislature’s liability‑mitigation purpose during emergencies.

II. The Court’s Legal Reasoning

1) Identifying the right of action. The Court hewed to Torres in defining the right by the pairing of injury and defendant. The relevant right is a patient’s ability to sue a health care provider for injuries caused by that provider’s negligence—a right that existed at statehood and is therefore protected by art. 18, § 6.

2) “Reasonable election” analysis. The Legislature may regulate protected actions if claimants retain a reasonable alternative to bring the action. The question was whether restricting claims to gross negligence is a reasonable alternative to ordinary negligence. The Court said no, for two related reasons:

Doctrinal transformation. Gross negligence imports a mental‑state requirement—reckless indifference—not required in negligence. As with Duncan’s comparison of negligence to intentional torts, the quasi‑intent element changes what must be proved and the interests protected.
Practical effect. Because most medical malpractice is not accompanied by reckless indifference—and proving it is “no easy task”—a large, foreseeable class of injured patients would be unable, in good faith, to plead or prove gross negligence. Thus, the statute effectively “completely abolishes” the ability to recover for ordinary negligence during pandemics.

3) Limits of legislative power and permissible regulation. The Court underscored that the Legislature can still:

Define or clarify the standard of care (e.g., § 12‑563 codifies the ordinary standard; § 12‑516(C) ties pandemic care to “applicable published guidance”).
Impose procedural and evidentiary regulations, including heightened burdens of proof.
Adopt other regulatory measures that do not eliminate the right to sue for ordinary negligence.

But it cannot abolish the action itself. By “raising the mens rea floor” to gross negligence, § 12‑516(A) crossed from regulation to abrogation.

4) No emergency balancing. The Court refused to graft a balancing test onto the anti‑abrogation clause—even in a declared emergency—because the constitutional text is unqualified. Although the Legislature retains broad police powers, those powers stop where constitutional limits begin.

5) Derivative sovereign immunity rejected. Without a government contract or agency relationship, private hospitals are not cloaked with the state’s immunity for pandemic care. Arizona has not adopted Yearsley‑style derivative immunity, and the authorities cited by amici did not fit the facts.

6) Severability and the surviving clear‑and‑convincing burden. The Court concluded that the statute’s burden‑of‑proof component is separable and constitutional. It serves the same liability‑mitigation purpose the Legislature sought, is independently workable, and mirrors other Arizona statutes that elevate burdens in medical contexts. The upshot: in pandemic‑related care, plaintiffs may bring ordinary negligence claims, but must prove them by clear and convincing evidence.

III. The Dissent: A Narrower Anti‑Abrogation Clause, But Agreement on Emergency Limits and Immunity

Justice Bolick (joined in part by Justice Montgomery) would have upheld § 12‑516(A) as a valid regulation, not an abrogation. His key points:

Original understanding and placement. He argues art. 18, § 6—located in the Labor Article—was aimed at preserving specific employee tort actions threatened at the time of statehood, not freezing all common‑law torts against change. He cites Prof. Roger Henderson’s historical work concluding the clause was not intended “for the benefit of all.”
Right of action vs. cause of action. In his view, the “right of action” is the right to bring suit; elevating the standard (requiring gross negligence) regulates the cause of action but does not “erase” the right to sue. Abrogation means annihilation; here, negligence claims against providers remain, albeit with a higher threshold.
Police power and emergencies. He warns the majority’s approach unduly constrains the Legislature’s ability to calibrate liability in crises.
But he concurs that (a) there is no “emergency balancing” power under the Arizona Constitution to contract individual rights, and (b) derivative sovereign immunity does not apply to private hospitals here.

IV. Impact and Practical Implications

1) Immediate doctrinal effects.

Statutory pandemic immunity for ordinary negligence is invalid. Patients injured by pandemic‑related care can sue for ordinary negligence; they need not plead or prove gross negligence or wilful misconduct.
The clear‑and‑convincing evidentiary burden survives and now applies to ordinary negligence claims arising from pandemic‑support care under § 12‑516(A).
Section 12‑516(C)’s standard‑of‑care alignment with “applicable published guidance” remains a permissible regulation; compliance evidence will be central to breach disputes.

2) Litigation strategy.

Plaintiffs: Prepare to meet a heightened evidentiary burden. Develop robust expert testimony tied to the standard of care as informed by pandemic guidance, and gather comprehensive documentation to establish breach and causation with high probability.
Defendants: Emphasize adherence to contemporaneous public health guidance to argue compliance with the standard of care. The elevated burden creates a meaningful defense even without gross‑negligence immunity.
Jury instructions: Courts will need to adapt instructions to define clear and convincing evidence for negligence elements while explaining any role of published guidance in the standard‑of‑care analysis.

3) Legislative responses likely to survive.

Safe‑harbor or rebuttable‑presumption frameworks tied to compliance with authoritative guidance.
Procedural screens (early expert affidavits; timelines), evidentiary standards (as upheld here), and clarifications of standard of care in emergency settings.
Measures that do not eliminate ordinary negligence claims, consistent with Kenyon, Duncan, and Boswell.

4) Scope beyond COVID‑19. The decision applies to any declared “public health pandemic” that triggers § 12‑516. Future emergency‑response statutes that bar ordinary negligence claims will likely fail unless they leave a genuine pathway to sue for negligence.

5) Interface with federal law. The ruling does not displace federal immunities (e.g., PREP Act), which may preempt state tort claims in specified contexts. Parties should assess federal preemption independently.

Complex Concepts Simplified

Anti‑abrogation clause (Ariz. Const. art. 18, § 6): A constitutional guarantee that the right to sue for personal injuries “shall never be abrogated,” and damages may not be capped.
Right of action vs. cause of action: A right of action is the right to pursue a remedy against a particular kind of defendant for a particular injury; a cause of action is the legal theory (e.g., negligence, battery). Anti‑abrogation protects the right of action.
Regulation vs. abrogation: Regulation changes how a claim is brought or proved but leaves a meaningful path to sue; abrogation eliminates that path entirely for a foreseeable class of claimants.
Ordinary negligence: Failure to use the care a reasonably prudent provider would under similar circumstances (duty, breach, causation, damages). In medical cases, § 12‑563 codifies the standard.
Gross negligence: Negligence plus reckless indifference—knowing (or having reason to know) the conduct creates an unreasonable risk with a high probability of substantial harm.
Clear and convincing evidence: A higher evidentiary standard than “preponderance,” requiring the factfinder to be firmly convinced of the claim’s truth.
Severability: Courts preserve valid portions of a statute if they can operate independently and the Legislature likely would have enacted them without the invalid parts.
Derivative sovereign immunity: A federal doctrine sometimes shielding contractors acting under government authority; Arizona declined to extend it here, especially absent a contract or agency relationship.
Police power and emergencies: The Legislature’s broad authority to protect public health and safety persists, but constitutional limits—like anti‑abrogation—remain fully operative even during emergencies.

Conclusion

Roebuck v. Mayo Clinic substantially clarifies the boundary between permissible regulation and unconstitutional abrogation under Arizona’s anti‑abrogation clause. The Legislature may not, even in a public health emergency, cut off patients’ access to ordinary negligence claims against health care providers by elevating liability to gross negligence. That move transforms the nature of the claim and leaves too many injured patients without a remedy—an outcome the Constitution’s categorical “shall never be abrogated” language forbids. At the same time, the Court affirms robust space for legislative regulation: it preserves § 12‑516’s clear‑and‑convincing burden, recognizes the Legislature’s authority to define standards of care (including by reference to pandemic guidance), and reiterates the validity of procedural and evidentiary constraints that do not abolish the action.

The Court also forecloses two broad defenses often raised in crisis litigation: it declines to invent an “emergency balancing” exception to constitutional text and rejects attempts to cloak private hospitals in derivative sovereign immunity absent a proper government relationship. Taken together, the decision strengthens Arizona’s unique constitutional commitment to open courts while preserving meaningful tools for the Legislature to manage liability in future emergencies. For litigants, the path to recovery for pandemic‑related medical negligence is open—but steeper. For lawmakers, the opinion offers a roadmap: regulate standards, evidence, and procedure; do not abolish the right to sue for ordinary negligence.