Important Concepts To Be Considered In Pursuing A Medical Malpractice Claim In Arizona

In Arizona There Are No Caps or Limits on Recovery As There Are In Many Other States

Arizona does not place a cap on the amount of damages recoverable in a medical malpractice action. Article 2, § 31 of the Arizona Constitution prohibits the enactment of any law limiting the damages one may recover for personal injury or death. Legislative attempts have been made over the last several years to cap medical malpractice damages, but so far these efforts have failed. It would require an amendment to the State Constitution to limit the power of jury to award the true value of cases. That is the good news, although it is tempered to a certain degree by the fact that Arizona juries are known to be very conservative in their willingness to make substantial awards which would compare with some other jurisdictions in the country. There has also been much discussion on a national level about attempting to cap medical malpractice damage awards through federal legislation. Thus far these efforts have not been successful, but with the ever-changing political climate in Washington, D.C., there is no doubt the subject will be revisited within the near future.

Medical Malpractice Frequently Involve Claims Against Multiple Doctors and Nurses Who Share In Fault

A large percentage of the catastrophic injuries or deaths which occur resulting from medical malpractice or negligence take place in hospitals, and when due to provable negligence, most such cases usually involve multiple physicians and nurses who share the fault. Most nurses are employees of the hospital, but almost all physicians are not employees of the hospital. In most instances, the hospital is not legally liable for any negligence of the physicians. Instead, most physicians are “independent contractors”. This results in all physicians who are involved in the care of the patient in a hospital and who could be responsible for the injuries to be named as defendants, along with the hospital.

There are many circumstances, especially communication errors or other hospital system errors, which can result in a significant injury or death of a patient. Proving the connections between the negligent care and outcome of a significant injury or death can be very difficult. Another area presenting great challenges is when a patient prior to the claimed negligence was suffering from a number of pre-existing conditions

Contributory or Comparative Negligence in Medical Malpractice Cases In Arizona

Arizona adheres to a pure form of comparative negligence. A claimant’s award in a trial is diminished in proportion to the claimant’s relative degree of fault, but the claimant’s fault generally will not act as a bar to recovery. However, a trier of fact may bar recovery if the claimant willfully or wantonly caused or contributed to the death or injury. This means, for example, if a physician is found to be negligent and his or her negligence has caused damages to a patient, the patient may still be found partially responsible for his or her damages if he or she failed to follow the physician’s instructions concerning administering treatment. In this example, the doctor might be found 70% at fault and the patient 30%, so the court, based upon the jury’s verdict, would reduce the patient’s overall award by 30%.

Joint and Several Liability

Arizona has abolished the doctrine of joint and several liability. Tortfeasors are only severally liable for the amount of claimant’s damages equal to their percentages of fault, unless they were in a principal-agent relationship, acting in concert, or pursuing a common plan or design to commit a tortious act and actively taking part in it. This means if several medical providers are claimed to have been negligent and caused damage to a patient, each provider can only be responsible for his or her percentage of fault, as it relates to the larger picture. The effect of this law is to a large degree eliminate the deep pocket recoveries of the past.

Vulnerable Adult Statute

In 1989, Arizona adopted a civil version of the Adult Protective Services Act known as the VAS. The Act was intended to create a statutory civil cause of action. The statute provides that an incapacitated or vulnerable adult who has been injured by neglect or abuse can file suit in Superior Court against any person who had been employed to provide care or who has assumed the legal duty to provide for their medical care.

Vicarious Liability

Arizona courts have recognized the principle of ostensible or apparent agency in the hospital-physician context.

Arizona Is Not a Direct Action State In Arizona, in a medical malpractice case, the insurance company for the medical provider who allegedly committed the malpractice may not be named as a party defendant nor the jury be made aware that the medical provider is covered by insurance. If this information is elicited in the testimony, it can become the basis for a mistrial and the attorney who inadvertently or intentionally elicited this information may be sanctioned.

No Limitations on Attorney’s Fees

Arizona does not place a limit on the fees recoverable by an attorney in a medical malpractice action.

Collateral Source Rule

In Arizona, a defendant may elect to introduce evidence of the claimant’s receipt of collateral payments, such as disability benefits. A defendant may introduce evidence that the plaintiff may receive benefits (insurance, Social Security, etc.) that might compensate the plaintiff in some measure for the injuries he or she claims in the action. If the defendant does introduce such evidence, the plaintiff may introduce evidence that such benefits may be subject to liens or rights of reimbursement by the providers thereof. This evidence does not compel a particular result (e.g., denial of damages that are or will be reimbursed), but is given whatever weight the trial of fact chooses to give it.

Reporting Requirements

Upon settlement or upon entry of a monetary judgment by a court in a medical malpractice action, the plaintiff’s attorney and the defendant’s professional liability insurers must notify the defendant’s health profession regulatory board. This requirement applies to any healthcare practitioner who was involved in a medical malpractice claim, as well as a nursing care institution involved in a claim pursuant to A.R.S. 46-455.

Confidentiality or Nondisclosure provisions in Settlement Agreements

There are many medical malpractice cases resolved through settlement agreements in Arizona where one of the conditions of settlement which the defendant medical provider requires is that the terms of the settlement be kept confidential or not be disclosed to the public in general. This obviously is an attempt to protect the reputation of the medical provider and also to prevent the public from knowing which providers may have erred. This may seem somewhat unfair to some victims that they are required to remain silent about their case. They may believe that by promising silence, they are enabling the physician to keep harming other patients in the local community. The fact is that in many cases, the medical professional has simply made a mistake in a particular situation and will not go on to repeatedly harm other patients in the same way.

The word “mistake” may seem too light considering the repercussions of medical malpractice. Everyone makes mistakes at work, but when a physician fails to do their work properly, lives can often times be seriously jeopardized.

The medical providers, however,  do not necessarily walk away without any negative repercussions on their record. The number of medical malpractice lawsuits against any doctor is on record and can be discovered by patients or prospective patients. Also, if a physician for whatever reason does continue to show incompetence and harms other patients, he or she can lose their license to practice medicine.

Immunities

In Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), the Arizona Supreme Court abolished the doctrine of sovereign immunity in Arizona. However, health care providers are immune from liability with respect to damages incurred in connection with the rendition of healthcare services at non-profit clinics where neither the physician nor the clinic receives compensation. Ariz. Rev. Stat. Ann. § 12-571 (West 1992). The non-profit health care provider is not afforded immunity, however, if the provider is grossly negligent. Id. In addition, both the state and its political subdivisions are afforded immunity from liability for punitive damages. Ariz. Rev. Stat. Ann. § 12-820.04 (West 1992).

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