Medical Malpractice Q & A

We have listed below FAQs relating to Arizona Medical Malpractice Law.  If you need more information regarding these issues or any others, please contact The Law Offices of William D. Black at 602 265-2600 or Email us at info@billblacklaw.com We would be happy to help you!

What Constitutes Medical Malpractice In the State of Arizona?

Unfortunately, thousands of patients are injured or die in Arizona each year as a result of the negligent acts of medical professionals. Although no amount of money will ever compensate for their injuries or the loss of their loved one, victims of medical malpractice and their families may be entitled to financial relief through the pursuit of a claim or lawsuit under Arizona medical malpractice law or the Arizona wrongful death statute.

Here is a more specific definition of medical malpractice in Arizona which should help you to understand whether your particular case may merit review.

Medical malpractice is the failure of a health care provider to comply with the applicable standard of care. A health care provider must “exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he or she belongs within the state acting in the same or similar circumstances. Failing to do so, however, will not by itself create liability. The mere presence of a bad outcome does not necessarily give rise to liability even if the defendant was negligent. The harm that occurred must have been proximately caused by the defendant’s acts or omission.

Medical malpractice claims or actions can be brought by the injured person or, if deceased, by his or her surviving relatives against any responsible health care provider, including physicians, hospitals, counselors, psychologists, psychiatrist or psychotherapists.

Medical malpractice can take place in a wide range of settings and can involve hospitals, nurses, surgeons, anesthesiologists, and all other types of physicians, technicians and/or other medical professionals. Given the complexity of medical malpractice litigation in Arizona, it is often in the best interests of victims and their families to speak to an experienced Arizona medical malpractice attorney as soon as it appears negligence may have occurred.

Do All Errors in Medical Diagnosis and Medical Treatment Constitute Actionable Medical Malpractice?

Not all errors in medical diagnosis and treatment are necessarily malpractice because there are certain risks and margins for error that arise inherently in the practice of medicine. A bad result does not automatically mean the medical provider was negligent. Juries are not permitted to infer negligence strictly because are bad results.

What Are the Key Elements Which Must Be Proven in A Medical Malpractice Case?

In medical malpractice actions, as in all negligence actions, the plaintiff must prove the existence of a duty on the part of the medical provider, breach of that duty, a causal connection between the breach and the injuries and damages which occur and the nature and extent of the damages. The plaintiff’s damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages and, in certain instances, loss of earning capacity, medical expenses and life care expenses. These damages may be assessed for past and future losses which can be proven. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are sometimes permitted, but only in extreme cases. The plaintiff must be able to prove there are circumstances in the case of aggravation or outrage, such as spite or malice, or fraudulent or evil motive on the part of the defendant or such a conscious and deliberate disregard of the interest of others that the conduct may be called willful or wanton. Gross negligence is not enough. A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.

What procedural steps are taken to initiate and pursue a medical malpractice lawsuit?

Very few medical malpractice cases can be resolved without a lawsuit being filed. In fact many attorneys do not believe it is productive to send Demand Letters ahead of filing suit. There are several reasons for this. First, even when the injured party has a strong claim, the medical provider and his or her insurance attorney will test out the claimant to see if they are serious about proceeding and also to see whether they will hire a competent attorney and retain the necessary experts to prove the case. Second, many medical malpractice insurance policies require that the medical provider give his or her or its consent prior to agreeing to any settlement. There are many cases where the malpractice may be quite evident, but the provider does not wish to consent because of the serious impact that a finding of negligence might have on his or her professional reputation and further insurance coverage. Third, even if the injured party retains counsel, medical provider who was negligent and his insurance attorney may believe that the injured party and his attorney will not have the necessary financial strength or endurance to pay for costly litigation. There are other reasons, as well, but these are the most compelling

How Do I File and Pursue A Medical Malpractice Law Suit in Arizona?

If the attorney reviews the underlying facts and believes there is provable negligence which caused the damages and these damages are significant, he or she can then enlist the appropriate expert witnesses to assure that the can substantiate the claim. If so, the attorney for the injured part files a lawsuit, usually in the Superior Court for the county in which the incident occurred. In a limited number of cases, the case might be initiated in the Federal District Court, but this is rare. Once the law suit is filed and served on the defendant(s), the defendants respond by filing an answer which almost always denies the plaintiff’s allegations. The parties then are required to exchange all pertinent information and records through a process called discovery. Discovery usually entails exchange of interrogatories (written questions which must be responded to), exchange of requests for documents and response thereto and depositions) Most Superior Court judges require that once discovery has been conducted, a mandatory settlement conference or mediation hearing take place to determine if the case can be resolved without proceeding through a trial. If the case cannot be settled on negotiated terms, it will proceed to trial.

If the case is tried, the plaintiff has the burden of proof to prove by a preponderance of evidence all the elements entitling him or her to an award of damages. At trial, both parties (or all parties if there are multiple plaintiffs and/or defendants) will present experts to testify as to the standard of care required, whether this standard was breached, whether this breach caused the injuries and damages alleged and what these injuries and damages were. The fact-finder (judge or jury) must then weigh all the evidence and determine which side is the most credible. The verdict or decision of the Court, if a jury is waived, will then be reduced to a judgment. The losing party may move for a new trial, but must have convincing evidence that there was prejudicial error during the trial. Either party may also appeal, if they lose the case, but the chances of success on appeal, unless there is grievous error, are generally not good.

How Much Time Does a Claimant Have To File A Claim and What Is the Statute of Limitations?

The statute of limitations is a time limit set by law which creates a deadline for filing a lawsuit. If you file your lawsuit after the deadline, the suit will be dismissed and the plaintiff will be barred from further pursuit of the claim. In Arizona the statute of limitation for medical malpractice is in most instances two years from the date when the patient (or sometimes a particular family member or guardian either knew, or in the exercise of reasonable care should have known with exercise of reasonable diligence, that the injury occurred and there was a reasonable possibility that the injury to the patient was caused by medical malpractice. The statute of limitations is tolled if a claimant is under eighteen years of age, mentally incompetent, or imprisoned.

If the case involves a governmental agency as a defendant, or a military or Veterans Administration Hospital or Clinic, there are special advance notice and time requirements which shorten the statute of limitations significantly and they must be strictly followed.

Wrongful death claims accrue at the date of death and must be brought within two years therefrom.

The statutes of limitation are unforgiving and can be rather confusing, so if you think you may have a medical malpractice claim, you should check with a medical malpractice attorney without delay.

What Should the Injured Party Be Aware of and Stress in Determining Whether to Pursue A Medical Malpractice Case in Arizona?

The injured party should consider those points set forth above- What makes a good medical malpractice case in Arizona.

The injured party needs to be educated about the economic evaluation of whether it is feasible to pursue a medical malpractice action.

The injured party must also be prepared to truthfully disclose the names of all doctors who have treated, the places and reasons for hospitalization, continuing medical problems and significant medication use.

What If No One Is Willing to Represent You and Pursue Your Case?

If you believe you have a good case and have presented your fact situation to three or more well-qualified medical malpractice attorneys and none of them seem interested in pursuing it, it probably means that one to the critical areas of proof is lacking or you may have a provable malpractice case, but the economics of pursuing the case, even if you win, do not make sense.  Remember a good medical malpractice attorney is looking for good cases, but if it is not there, it is not there.  Many attorneys may be reluctant to tell you the truth and may instead tell you that you have a good case and they would like to help you, but they are too busy or they have a conflict of interest.  This may be so, but sometimes what they are really telling you is that you don’t have a good case that is economically feasible to pursue, but they don’t have the heart to tell you.

Can You Successfully Represent Yourself or Your Deceased Relative in a Medical Malpractice Case?

Medical malpractice cases are very sophisticated proceedings and require specialized knowledge in both law and medicine.  It is not recommended that you attempt to represent your own interests if you are not an attorney or a physician.  Ignorance of the law or medicine is not a good defense in such a case.  A person pursuing his or her own case pro per is expected to have the same level of legal and medical knowledge that a qualified medical malpractice attorney would have.  Unless you are an incredible risk-taker, bright and a super-quick learner, do not risk your case by attempting to pursue it without an attorney.

What Are Typical Reasons An Attorney May Decline Your Case

To best understand the answer to this question, you should review the statements in this site regarding what elements make up a good case. Your case may even have good merits, but it is not economically feasible for you or the attorney to proceed.  You may also be one of those less desirable potential clients identified below.

What types of clients do medical malpractice attorneys generally prefer to avoid?

No single one of these traits should result in refusal to represent, but a combination might well be prohibitive.

• Those who have their own agenda
• Those who have unrealistic expectations
• Those who have a criminal record, court-martial background or negative military career
• Those who are angry or vindictive
• Those who believe they know-it-all
• Those who believe they have conquered law and/or medicine by their own internet research
• Those who want to rewrite the fee agreement at the outset and/or as the case progresses
• Those who are over-demanding clients
• Those who are prepared to disregard the findings of qualified experts
• Those who are rude, obnoxious or notably unlikeable
• Those who are not credible or forthright in disclosing their medical histories in their interviews and their testimony
• Those who first show up at the attorney’s office when it is too close to the expiration of the statute of limitations or when there are already other procedural problems
• Those who are currently in litigation and are represented by another law firm or who have seen multiple lawyers or who have filed their own lawsuit pro per
• Those who are overly litigious-have made a number of prior claims or filed a number of previous lawsuits
• Those who must be in control
• Those who do not listen and constantly interrupt
• Those who have a very erratic work record or one that cannot be explained

Talk to a Medical Malpractice Attorney

Contact us for more information about any of the above issues or other medical malpractice legal challenges. If you believe you or a loved one are the victims of malpractice and have suffered significant injuries and damages relating thereto, please contact the Law Offices of William D. Black. If the facts justify it, we will review your medical records to determine whether there is a provable case and whether it is economically feasible to prosecute your claim.  We have qualified medical personnel on staff. Our telephone number is (602) 265-2600 in the Phoenix area or (844) 224-0054 toll-free.