Phoenix Medical Malpractice Frequently Asked Questions

What is “medical malpractice?”

Medical malpractice is the failure of a health care provider, usually a doctor, to provide a patient with treatment equal to the customary standard of care in the medical industry. Further, the failure must result in an injury to the patient. Examples of medical malpractice can take many forms, too numerous to list. It can include, however, misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up care, prescription errors, and many other forms of negligence.

What is meant by the “customary standard of care”?

This phrase refers to whether your doctor or other medical provider exercised the same degree of care and skill as would the average qualified doctor or medical provider presented with the same or similar circumstances as your case.

Suppose your treatment did not yield the result the doctor told you it would or that you thought it would. Is this medical malpractice?

Not necessarily. A bad outcome or unfavorable result is not malpractice unless it was caused by the failure of the doctor or other medical provider to exercise the degree of care and skill expected of a qualified physician/medical provider under similar circumstances.

What about attorney’s fees and costs?

Most good medical malpractice attorneys will agree to prosecute malpractice claims on a contingency fee arrangement. This means that the attorney will not charge an hourly rate for his services, but instead will be paid a percentage of the recovery in the event of a settlement or judgment. In many cases, costs are advanced on behalf of the client and are payable, interest free, at the conclusion of the case. Costs include such expenses as medical consultant fees, court filing fees, service of process fees, expert witness fees, deposition costs, etc.

When must one make a claim?

Generally speaking, victims of medical malpractice have a limited time period in which they must pursue their claim or be forever barred. In most jurisdictions, including Arizona, this “statute of limitations” is two years from the date of the incident of malpractice. Certain exceptions do exist under the law in certain circumstances. For instance, the foregoing time period may be extended for certain individuals including those who are minors when the malpractice occurred. Additionally, in certain instances, such as when a medical professional conceals the incident of malpractice, victims that did not know, and could not have known of the malpractice until some time after the incident are allotted additional time under the law to file a lawsuit.

The foregoing exceptions are fact sensitive and require the analysis of a qualified attorney to determine if they applicable. There are some instances, such as when one is proceeding against a governmental entity (government hospital or government paramedics) when the time is shortened considerably. DO NOT DEPEND ON INFORMATION IN THESE FAQs. If you believe you or a loved one have a medical malpractice claim, act on it immediately. Since a medical and legal analysis must be done prior to filing a lawsuit, one should not wait until the statute of limitations period is nearing. It is advisable to consult an attorney as soon as possible for other reasons as well. Memories of the event(s) in question tend to fade for witnesses and, if you wait too long, witnesses may no longer be available. If you believe you have a case, follow up with it right away.

Does Arizona place a cap on the amount of damages recoverable in medical malpractice actions?

No. Article 2, Section 31 of the Arizona constitution prohibits the enactment of any law limiting the damages one may recover for personal injury or death.

If an attorney believes that the physicians and/or other medical providers breached the standard of care and that as a result you were injured, is your case definitely worth pursuing?

Not necessarily. Litigation is a long and difficult process. Frequently medical malpractice cases take two or three years to prosecute. In addition, they are expensive to litigate, often costing thousands of dollars. In order to justify the pursuit of such a claim, the injuries and damages suffered by the victim of malpractice must be very substantial (death or serious and permanent injury) or it is not economically feasible to proceed.

What Are the Usual Defenses Presented In Medical Malpractice Cases?

In addition to attempting to show that there was no negligence, or no damage caused by the alleged negligence, the defense may argue that something or someone else is responsible for or actually caused the injuries. A defense frequently used is to blame the patient for the problems. This can take many forms including arguing that the patient had unusual anatomy which mislead the physician, was too fat, or too thin, was a smoker, bi-polar, an alcoholic, a drug abuser, did not take his medicine, failed to tell the doctor something he should have or failed to come back as instructed. In short, the defense may try to use “throw in the kitchen sink defenses in an effort to overcome the plaintiff’s claims. These defenses are an attempt to put the patient on trial instead of the doctor, or at least to try to get the jury to divide responsibility between the patient and the healthcare provider. Sometimes it works. In these instances, the jury may be looking for reason to give the physician a pass. Sometimes, however, it backfires and the jury may award greater damages because it undermines the physician’s credibility.

Who Will Decide Whether There is Medical Malpractice in My Case? If Malpractice is Proven, Who Will Decide What Damages Are Appropriate?

In Arizona, most malpractice cases are decided by juries. The jury trial is always presided over by a judge. The judge decides all issues of law and makes rulings on what evidence is permissible for the jury to consider. The jury determines which witnesses are credible, how much weight to give to their testimony, what the pertinent facts are, if there is malpractice, whether it is the proximate cause of the plaintiff’s damages and if negligence and causation are proven, what the appropriate award of damages should be.

In Arizona superior court jury trials, the jury consists of eight people.. The parties may stipulate to any lesser number of jurors, but not less than three. For cases expected to be complicated, the court may impanel one or more alternate jurors to replace any jurors who become unable to perform their duties prior to, or even during, deliberations.   Possible jury lists are prepared by the jury commissioner in each county. He or she is required to prepare a jury list of registered voters in the county and the list also includes licensed drivers and other persons from other lists as may be determined by the Supreme Court. In some instances, if the parties and attorneys agree, the case may be resolved through arbitration. The arbitrators who serve are generally former judges or attorneys experienced and knowledgeable in medical malpractice law in Arizona. Usually the case is decided by one arbitrator or a panel of three.

How Long Does A Typical Medical Malpractice Case Take in Arizona?

Ordinarily, in Arizona a medical malpractice case takes between one to three years to resolve. The length of time varies to a certain degree based upon the number of parties involved, the number of depositions and the amount of investigation required, court scheduling and calendaring, the calendaring of expert witness appearances and many other factors. In almost all medical malpractice cases, attempted resolution of the case through mediation is required. Mediation, however, is not usually scheduled until most of the discovery has been completed and depositions taken.

What Is the Appropriate Amount for an Attorney to Charge to Process My Case?

In Arizona most malpractice cases are usually processed on a contingency fee basis. This means there is no fee charged unless and until you are successful in your case with either a settlement reached or a Court or jury award. You should always confirm your agreement of representation in writing with a retainer contract which sets forth the details of the agreement. In Arizona, the average percentage charged in a medical malpractice contingency fee agreement ranges between forty to forty-five per cent. Since you are not paying for the attorney’s fees unless and until you make a recovery, you should select the most qualified attorney you can find, the one who has the best chance of winning your case. The contingency fee percentage is ordinarily higher in a medical malpractice case than a more routine negligence case like an automobile accident claim. This usually is based on the fact the cases are much more complicated and need an attorney with specialized expertise and also the fact that the attorney is often advancing costs in the case on your behalf so he or she is taking a financial gamble that the case will be successful and there will be reimbursement of costs.

The basic statutory requirements governing medical malpractice actions are contained in A.R.S. 12-561 to 563.

Regardless of initial fee agreement, a fee must be reasonable under all the circumstances. In the Matter of Swartz, 141 Ariz. 266, 273, 688 P.2d 1236, 1243 (1984) the Arizona appellate court stated if there is a dispute relating to a contingency fee, the factors to be considered include:

• The degree of uncertainty or contingency with respect to liability and the amount of damages which may be recovered or the funds available from which to collect any judgment.
• The difficulty of the case and the skill required to handle it
• The time expended pursuing it
• The results obtained

To determine whether you have a potential medical malpractice claim and, if so, whether it may have merit, you should ask the following questions:

• Have I or a member or a member of my family suffered a severe or permanent injury while under the care of a doctor, hospital or other health care provider.
• If so, was this injury more severe or devastating than would be expected from the original diagnosis or trauma.
• Has it come to my attention, perhaps through another doctor or health care provider that the treatment received was inappropriate, or that the outcome was unusual?
• Do I have strong doubts about the competency of a doctor or other medical provider and the propriety of the care received?
• Have I been kept in the dark about a medical situation?
• Has my insurance company questioned the appropriateness of specific procedures, tests or diagnoses?
• Do I have concerns that a medical device may have seriously affected my health?
• Were you injured because of improperly functioning medical equipment?
• Did your doctor fail to send you to a specialist when required?
• Were you injured by a prescription drug or the failure of your doctor to properly prescribe and administer your medications?
• Are there other compelling reasons which cause me to believe that medical malpractice is present?

Contact Us For More Information

If your answers to these questions lead you to believe you are the victim of malpractice and have suffered significant injuries and damages as a result thereof, please contact the Law Offices of William D. Black. If we agree, we will review your medical records. Our telephone number is 602-265-2600, 844-224-0054 or contact us online.   A qualified representative from the firm will then determine whether there is a basis for a medical malpractice claim and, if so, whether it is economically feasible for you to pursue your claim.