Arizona Medical Malpractice Laws

Medical malpractice claims can be incredibly complex. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering. This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Arizona; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Arizona. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Arizona

In Arizona, a medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Arizona places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Arizona allows the defense of pure comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. Arizona is one of a few states that does not place a limit on damages that may be awarded to a plaintiff in a medical malpractice case.

How long do I have to file a medical malpractice case in Arizona?

The first step in bringing a claim for medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Arizona mandates that an action for personal injury must be filed within two years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the time period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no recourse. The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

It is important to note that Arizona law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Additionally, if the medical malpractice claim is being brought on the behalf of a minor, the statute of limitations do not begin to run until the minor turns 18 years old. [2]

In Arizona Medical Malpractice Cases, Who is Responsible?

In Arizona, you may bring a medical malpractice lawsuit for an injury you suffered against a licensed healthcare provider based upon their negligence, misconduct, errors or omissions, or breach of contract in the rendering of healthcare, medical services, nursing services or other health-related services. [3]

Those that can be held responsible due to being included in the definition of a “healthcare provider” include:

• Doctors
• Nurses
• Dentists
• Technicians
• Hospitals
• Employees of a health care providers acting within the course and scope of employment

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove by clear and convincing evidence:

• The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.
• Such failure was a proximate cause of the injury. [4]

The clear and convincing standard is the highest legal standard of proof required in a civil case.

What if I am partially to blame? Can I Still Recover Money for Arizona Medical Malpractice?

Arizona, along with 12 other states (Alaska, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington) recognizes the doctrine of pure comparative fault. [5]

Under the doctrine of pure comparative fault, any award of damages you are awarded from a court are reduced in proportion to your contribution to your own injury. This doctrine is extremely friendly to you in that you are able to recover for damages even if you are found to have been 99% at fault for your injury.

For example, imagine if a patient went to see a doctor about pain in their shoulder. During the evaluation, the doctor asks the patient if they drink alcohol and the patient lies and says that they do not. Based on that information, the doctor prescribed painkillers that are not safe to take in combination with alcohol. The patient later takes the medication while drinking alcohol and suffers severe health consequences. If the patient were to bring a medical malpractice lawsuit against the doctor for improperly prescribing medication that led to their injury, it is likely that a court would find the patient partially responsible and any award of damages would be reduced in proportion to the level of fault calculated by the court as per the doctrine of pure comparative fault.

An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. As a result, the majority of states have adopted a modified system which allows for only a partial apportionment of fault. Usually, the percentage of fault is either capped at 51% or 50%. If the plaintiff contributed to their injury in a way that surpassed the allowed threshold, they will be barred from recovering for their injury.

Are there medical malpractice recovery caps in Arizona?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two main types of damage awards you may receive:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – actual damages and general damages.

Actual damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

General damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than compensate the plaintiff. In Arizona, punitive damages may be awarded by the court only when you prove by clear and convincing evidence that the defendant’s conduct was reprehensible, and that the defendant acted with an evil hand. [6]

Article 2, Section 31 of the Arizona Constitution does not allow the state to place a limit on the amount of damages that may be awarded in a medical malpractice lawsuit. [7]

Expert witness reporting and testimony

The testimony given by an expert witness is invaluable to you if you are bringing a claim of medical malpractice. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred.

Over time, the state of Arizona has seen numerous medical malpractice claims be filed against healthcare professionals despite the fact that the claims were frivolous and lacked merit. Those cases tied up the court system and caused many sound physicians to lose their practices due to insurance increases. To help remedy this problem, Arizona has since implemented a law known as the “affidavit of merit” law, which requires you to file a statement from a qualified healthcare professional who feels your claim has merit and deserves to be heard in court. The law in Arizona requires the affidavit to be filed within 60 days from the time you file your medical malpractice lawsuit.

The law in Arizona will only allow a witness in a medical malpractice action to be appropriately deemed an expert if the person is licensed as a health professional and:

• Specializes in the same specialty as the defendant if the defendant holds themselves out to be a specialist
• The witness was either active in the same clinical practice as the defendant during the year immediately preceding the occurrence that gave rise to the plaintiff’s injury [8]

An expert witness will not be permitted to testify if the fee being paid to the witness is contingent upon the outcome of the medical malpractice case to which the witness will be providing testimony.

Are some parties immune from medical negligence cases?

The law in Arizona limited the ability for an injured person to bring a medical malpractice claim against health maintenance organizations (HMOs) in 2004. That year, the U.S. Supreme Court ruled against claimants, stating that would be unable to pursue damages for pain and suffering in state court and instead had to make their case in federal court where they would only be able to recover actual damages. [9]

Prior to the U.S. Supreme Court’s ruling, an Arizona resident was permitted to sue HMOs in an Arizona court.

Additionally, the law in Arizona does not hold a healthcare provider to be held legally responsible for a patient’s injury if:

• The provider failed to comply with a decision or a direction that violated the provider’s conscience if the provider promptly made known their unwillingness and promptly transferred the responsibility for the patient’s care to another provider who was willing to act in accordance with the agent’s direction.
• The provider failed to consult a patient with a disability or incapacitated patient’s surrogate if the surrogate was unable to be contacted after the health care provider made a reasonable effort to do so or if an emergency situation existed that did not provide the health care provider with sufficient time to locate and consult with the surrogate.
• If the provider relied on a court order concerning a patient. [10]

Settling medical malpractice cases in Arizona

The law in Arizona does not require mandatory arbitration, mediation, or the submission of your medical malpractice case to a screening panel as a form of alternative dispute resolution prior to the claim reaching the trial stage of litigation.

However, if both parties are interested in reaching a settlement in lieu of going to court, a settlement conference may be sought. A settlement conference is a meeting that takes place prior to a case going to trial where both parties attempt to settle the dispute and avoid trial litigation altogether.

During a settlement conference, both sides will have the opportunity to speak in front of a court-appointed attorney, known as the judge pro tempore, and will usually cover topics like; the issues in the lawsuit; the possible consequences if your case proceeds to trial; relevant financial information; your needs and what you will be seeking in terms of damage should the case go forward to trial.

When compared with going to trial, settlement conferences can be appealing due to their low cost and expedited resolution.

If you and the opposing side are able to come to a full or partial agreement in a settlement conference, the previously set trial date will be vacated for full agreements. If you and the opposing side are unable to reach a settlement agreement during the settlement conference, you are still permitted to negotiate a settlement up until the trial stage of litigation.

Litigating medical negligence cases in Arizona

A claim for medical malpractice in Arizona is initiated by preparing a Complaint and Summons that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In Arizona, a civil action begins by filing a complaint with the clerk of the court. A complaint should include:

• The proper name of every plaintiff and of every defendant. If a defendant’s name is unknown, a complaint may identify the defendant by a fictitious name, and the complaint may be amended when the defendant’s true name becomes known. This paragraph also applies to defendants in a third-party complaint.
• In lawsuits to recover on an assigned debt, the identity of the original owner of the debt.
• A statement that the court has legal authority over the subject matter of the claim and over the defendant; and a statement that the Justice Court precinct where the lawsuit is filed is the proper location.
• A short and clear statement of the factual basis of each claim. Each claim must show that the party has a right to relief from the court.
• A demand that the court award money or another type of remedy allowed by law. If the requested remedy is an amount of money, and the amount can be calculated with certainty, the complaint must state the amount. If the amount of money cannot be calculated with certainty, a specific amount does not need to be stated, but the complaint must generally describe the damages and it must state that the amount requested does not exceed the jurisdictional limit of the court. [11]

A civil summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit. Upon receipt, the defendants have 20 days to file an Answer which admits and/or denies statements made in the complaint. [12]

The law in Arizona also requires the following disclosures to be made:

• A statement of the factual basis of the claim or defense
• The legal theory of each claim or defense
• All trial witnesses and their anticipated testimony
• The names of all persons who have given statements
• Expert witness identification, qualifications and opinions
• Lists of all relevant documents known to exist [13]

Preparing for Litigation

After the disclosures have been made and the complaint, summons and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission [14]

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. In Arizona, depositions are usually limited to 10 per side and four hours in duration, each. [15] The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

Litigation can be long, arduous and expensive. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation.

Arizona law mandates that civil lawsuits seeking damages that fall below certain jurisdictional thresholds goes to mandatory arbitration. [16]

In Maricopa County the jurisdictional threshold is $50,000. Therefore, if are seeking damages in an amount less than $50,000, your case will need to go to arbitration before it can reach the trial stage of the litigation proceedings.

Arbitration is a proceeding where a court-appointed arbitrator reviews your case and ultimately decides a resolution and award. Compulsory arbitration is not binding. Potential court-appointed arbitrators include:

• All residents in the county where the court is located who have been residents of the county for the last four years; and
• Other active and inactive members of the State Bar of Arizona residing anywhere in Arizona who are members of any other federal court or state bar and who have agreed to serve as arbitrators in the county where the court is located.

After the court appoints an arbitrator, each side will have 10 days to file a document called a Notice to Strike Arbitrator for the purposes of putting a different arbitrator in place. If a Notice to Strike Arbitrator document is not filed, the case will proceed to a hearing. After the hearing, the arbitrator will come to a decision and an award will be issued. If the arbitrator’s decision is appealed, the case will be set for trial.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Arizona: a judge or a jury. In superior court, there are eight people on the jury and agreement amongst six of the members is required to return a verdict.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Arizona, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of Arizona
• at least 18 years of age; and
• of sound mind

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The Court of Appeals differs from the lower court in that it does not hear testimony from witnesses and does not determine facts. Instead, during an appeal, the court decides whether the trial Court made an error of law or made a factual determination unsupported by any evidence which led to the rendering of the verdict.

To appeal the decision of a lower court, you must file a Notice of Appeal in the superior court that issued the judgment no later than thirty (30) days from the date of the original judgment. [17]

How to find the best Arizona Medical Malpractice Lawyer for your case

Initiating any legal proceeding can be daunting and overwhelming, especially if it is being brought against a high-powered doctor or hospital. It is likely that you would rather focus on healing your injury and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. After all, why should you be forced to go out-of-pocket for an injury that was caused by someone else? In order to increase your chances of success in your medical malpractice case, it is very important to find competent and highly skilled legal representation.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your time table, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from Arizona

These cases represent awards to plaintiffs in medical malpractice cases in Arizona. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Sandretto v. Payson Healthcare Management, Inc.

The plaintiff, Lori Sandretto, slipped and fell on a wet floor, injuring her right knee in April 2008. Sandretto was forced to undergo a surgical procedure to repair a torn meniscus.

After the first surgery failed to alleviate her pain, the plaintiff moved on from her original surgeon and met with Dr. Charles Calkins. After an examination, Dr. Calkins determined that plaintiff’s meniscus was still torn even after undergoing the first surgery and stated that a second operation would need to be performed and the plaintiff agreed.

The plaintiff’s knee improved initially after the second procedure but later became swollen. A physician’s assistant prescribed antibiotics as a remedy and two weeks later the plaintiff was admitted to the emergency room where Dr. Calkins diagnosed the plaintiff with a skin infection which prompted him to change the antibiotic prescription. Ten days after the emergency room visit, fluid was drained and tested which showed that the plaintiff was infected with Staphylococcus aureus. As a result, the plaintiff was forced to undergo three additional surgeries with the purpose being to flush out the drug-resistant bacteria. A knee replacement was eventually the last and final option.

The plaintiff brought a medical malpractice claim based on that fact that she might not have needed the knee replacement or developed the chronic pain condition if Dr. Calkins tested for the source of the infection before he did.

Dr. Calkins settled for $900,000 while Payson Healthcare Management, Inc. opted to take the case to court. A $7.3 million verdict was ultimately awarded by the court. The case was appealed and the Arizona Court of Civil Appeals upheld the award finding that there was no error in the admission of the expert testimony and that the verdict was based on substantial evidence and not excessive.

Brandon Orosco v. Maricopa County Special Healthcare District and District Medical Group

The plaintiff, Brandon Orosco, was severely burned in a workplace accident and treated for his injuries at Maricopa Medical Center. During the treatment, a wire was used to place a central line catheter in the plaintiff’s vein. However, the doctor mistakenly placed the wire in an artery instead of a vein.

The doctor recognized the error and tried to put in a different line. After the new line was put in, the doctor and the nurse could not find the wire that was accidentally put in the plaintiff’s artery. Ultimately both the doctor and nurse incorrectly determined that the wire must have been thrown away. However, the wire was later seen on a CT scan inside of the patient but by that time damage had already been caused. The damage was very severe as the plaintiff suffered permanent weakness and chronic pain which requires the daily use of narcotic pain medication.

The plaintiff brought a medical malpractice lawsuit claiming that Maricopa Medical Center was negligent for leaving the wire in his body and that District Medical Group’s radiologists failed to report viewing the wire on his X-rays and should have discovered the wire sooner which would have minimized the damage that he ultimately suffered.

Maricopa Medical Center admitted its negligence but argued that it did not cause the wire to be embedded in his leg and argued that the plaintiff’s injuries were exaggerated and were mostly due to his workplace burn injury. District Medical Group defended that it was never asked to inspect X-rays for a wire,that it would not normally do so unless it was notified that a wire may be misplaced in the body.

The jury awarded the plaintiff $3,675,000, plus $500,000 to his wife and $25,000 to each of his three children. The jury found Maricopa County Special Healthcare District 99% at fault and District Medical Group 1% at fault.

Footnotes

[1] ARS. § 12-542

[2] ARS. § 12-502

[3] ARS § 12-561(2)

[4] ARS § 12-563

[5] A.R.S. § 12-2505.

[6] ARS § 12-557

[7] Ariz. Const. Art. 2, § 31

[8] ARS § 12-2604

[9] Aetna Health Inc. v. Davila, 2004 U.S. LEXIS 4571, at 3 (U.S., 2004).

[10] ARS § 36-3205

[11] ARCP 8(a),(g),10(f)

[12] ARCP 12(a), 4.2(m)

[13] ARCP 26.1

[14] ARCP 26(a)

[15] ARCP Rule 30

[16] ARS 12-133

[17] ARCP Rule 9