Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
In Arizona, caps on damages are prohibited by the state constitution.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Arizona has eliminated joint liability, such that each defendant found liable is held responsible for payment of only a portion of the judgment, proportionate to their degree of fault. However, a party may be held responsible for another party's share of the damages if the parties were acting in concert, if the other person was an agent or servant of the party, or if the party's liability for the act of the other party arises under the Federal Employer's Liability Act.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Arizona has enacted a statute that allows the defendant in a malpractice case to introduce evidence of payments from collateral sources, which may be considered by the trier of fact when calculating damages. If the defendant introduces evidence of collateral source payments, the plaintiff may present evidence of premiums paid, that the plaintiff's eventually recovery from the defense is subject to a lien, or that the provider of the collateral source payment has a right of reimbursement.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Arizona a cause of action for malpractice must be filed within two years of the act or omission alleged to give rise to the injury.
The time period before a minor's eighteenth birthday is not counted toward the statute of limitations, such that an injured minor must file suit within two years of his or her eighteenth birthday.
Additional rules affecting malpractice litigation in the State of Arizona include:
Limits on Attorney Fees
At the request of any party, a trial court may review each party's attorney fees for reasoanbleness.
Preliminary Expert Opinion Affidavit
If a plaintiff in a malpractice action believes that expert testimony is necessary to prove the governing standard of care or liability for the claim, the plaintiff must serve a preliminary expert opinion affidavit on the defendants for each area of expert testimony. The affidavit must describe the expert's qualifications to prepare the opinion, the factual basis of the claim, the errors or omissions ascribed to the defendant, and an explanation of the manner in which those errors or omissions caused or contributed to the plaintiff's damages.
If a defendant believes that a plaintiff has denied the need for expert testimony in bad faith, the defendant may petition the court to order the plaintiff to submit affidavits necessary to support the claim.
Medical Expert Witness Restrictions
In order to testify as an expert on the standard of care in a medical malpractice case, the proposed expert must be duly licensed, at the time of occurrence must have practiced in the same specialty that was then claimed by the defendant (if any), and must be board certified in any specialties in which the defendant was certified at the time of the act or omission underlying the claim. In the year prior to testifying, the majority of the proposed expert's time must have been devoted either to the active clinical practice in the same health profession as the defendant and, if relevant, the same specialty; or in the instruction of students in an accredited professional school, residency program, or clinical reseach program in the same profession and, if relevant, specialty as the defendant.
Arizona has a rule pursuant to which a statement of apology, responsibility, sympathy, commiseration or similar sentiments from a health care professional cannot be used as a statement against interest as evidence of that health care provider's liability.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.