A more common problem than it should be.
Medical malpractice is an epidemic in the U.S.1 Preventable medical errors kill more than 400,000 people per year. That means, every day, 1,100 people have their lives cut short by medical malpractice. Estimates suggest, at least another 1,000 people are injured every day from their health care provider’s negligence. Historically, medical malpractice laws were designed to accomplish certain specific social objectives, including addressing poor quality care, fairly compensating patients for injuries resulting from negligence, and imposing justice in a manner that would make future occurrences less likely.2
According to the National Practitioner Data Bank, the number of payouts on medical negligence cases across the U.S. dramatically declined—going from 19,772 payments in 2001 down to 11,416 in 2019. That 42% drop likely reflects various tort reform efforts across the country and not improving health care delivery.3
Arizona statistics follow the national trend—going from 351 payments in 2001 down to 195 in 2019. The decline in paying cases clearly is associated with tort reform efforts that began in early 2000 and continued up through recent legislative changes in 2018.
In Arizona, people have the right to sue their health care providers for medical malpractice.
Medical malpractice is a legal cause of action that occurs when a health care provider deviates from standards in his or her profession, thereby causing injury to a patient. Some people use the term “medical negligence” to mean “medical malpractice,” and that is generally okay. However, technically, medical negligence is one component of a medical malpractice case.4
The requirements of a medical malpractice claim.
As the injured person, you have a burden.5 You must prove three things. In basic terms, you must prove: (1) the health care provider either did something they should not have (negligent act) or did not do something they should have (negligent omission), (2) that the negligent conduct caused an injury, and (3) your damages. A bad or suboptimal outcome does not mean the health care provider committed malpractice.
Doctors and other health care providers have a duty to their patients, to provide care and treatment that complies with the appropriate standard of care. This means the 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 belongs within the state acting in the same or similar circumstances. If the health care provider fails to acts as a reasonably prudent provider under the circumstances, then that health care provider failed to perform his or her duty and was negligent. This must be proven by presenting a medical expert within the same specialty as the health care provider.
Medical negligence becomes medical malpractice when the doctor’s negligent treatment causes injury to the patient; that is, makes the patient’s condition worse, causes unreasonable and unexpected complications, necessitates additional medical treatment, or causes death. The key is that the specific negligent act is causally linked to the injury or death. This again must be proven through expert testimony. There are many ways that health care providers can negligently cause injuries. For instance:
- misdiagnosis or failure to diagnose
- surgical errors, including unnecessary or incorrect surgery
- surgical errors, including leaving things inside the patient’s body after surgery
- premature discharge
- failure to order appropriate tests or to act on results
- failure to follow up
- medication errors
- poor infection control, including potentially fatal infections acquired in the hospital
- general negligence
Finally, you must prove the injury led to specific damages. Even if it is clear that the health care provider was negligent, you cannot sue for malpractice if you did not suffer any harm. Collectible damages6 may include:
- physical pain,
- mental anguish and suffering,
- past and future medical bills, and
- lost wages and earning capacity.
Impediments to a medical malpractice claim. In most cases, you must prove these three elements by a preponderance of the evidence. Arizona’s lawmakers raised the burden of proof in cases involving emergency room care and emergency medical services to clear and convincing evidence.7 In addition to raising the burden of proof, Arizona’s lawmakers have worked hard to interfere with your constitutional rights and impede your ability to hold health care providers accountable. These obstacles may limit your right to sue, limit your right to obtain full and fair compensation, and limit your right to the truth about what happened to you.
Medical malpractice cases rarely, if ever, resolve without hiring a lawyer. Even after hiring a lawyer, negligent doctors are reluctant to admit their mistakes. Most negligent doctors have egos and cannot accept that they made a preventable error. They often will not allow their liability insurance carriers to settle their case without litigation–most Arizona doctors have $1 million or more in liability insurance coverage, which includes a provision that does not allow the case to settle without their written consent.
Medical malpractice cases are very expensive. Expert fees are the largest cost of medical malpractice cases, usually driving the total costs of these cases over $125,000 and, in some cases, as high as $250,000. Doctors, especially local doctors, are not lining up to gratuitously provide their expert services to victims of medical negligence. Just the opposite. Most experts charge from $500/hr to $1,000/hr for their time, and local doctors will not testify against their colleagues.
Statute of Limitations
Many states have special rules and procedures for medical malpractice claims. One of the most important rules is the time limit for filing a lawsuit. In Arizona, a medical malpractice lawsuit must be filed within two years of the negligence, or within two years of when the person knew or should have known negligence occurred.8 This is called the “statute of limitations.” If you do not file the lawsuit within the allowed time, the Court will dismiss the case regardless of the facts.
However, in some instances, the statute of limitations is significantly shorter. If the lawsuit involves a public entity (e.g., the State of Arizona, City, County, or school) or a public employee of one (e.g., a medical student, resident, or teacher), then a Notice of Claim must be served on the appropriate entity(-ies) within 180 days after the negligence.9 After serving the Notice of Claim and allowing sixty days for a response, a lawsuit must be filed within one year of the alleged negligence. These are strict deadlines with very few exceptions. Failure to file a lawsuit within the allowed timeframe can result in permanently losing the ability to pursue the lawsuit. Similarly, if a Notice of Claim is required and not timely served, the claim will be lost.
How much does it cost to hire a medical malpractice attorney?
Like other personal injury cases, medical malpractice attorneys work on a contingency fee basis. That means the firm is paid a percentage of what it recovers for you. Some firms may also charge you a sliding scale percentage, ranging from 40% to 50% of your settlement or verdict. Also, some firms may charge you to investigate your claim. Gage Mathers is different. First, if your case does not result in payment, you owe us NOTHING. We are only paid if you are paid. Second, Gage Mathers charges a single fee (40%) that will not change during the duration of your case. Third, Gage Mathers does not charge up-front costs. We only recover costs advanced if your case is successful.
How much money can I get from a medical malpractice lawsuit?
We do not have a crystal ball and cannot predict the future. Case values vary greatly based on numerous factors. We can tell you that we do not take cases unless we think a jury would award enough money to sufficiently compensate us for our time, then cover the hundreds of thousands of dollars we advance in costs, then pay any liens or reimbursement claims, and finally provide you with a fair amount to compensate you for your economic losses and non-economic damages (e.g., pain and suffering, mental anguish, impairment, emotional and psychological injury, and disfigurement).
Unlike many other states, Arizona’s constitution prohibits caps on damages.10 That means juries are free to award you as much money as it believes you are entitled to based on the facts of your case.
National Statistics on Payments
According to the National Practitioner Data Bank, from 2000 to 2020, the majority of payments on medical negligence claims are under $250,000.
During this same timeframe, Arizona had a significant number of payments between $250,000 and $499,999.
In 2019, Arizona showed a significant shift in medical negligence payouts. By percentage, there were numerous more payments between $500,000 and $1,999,999.
In 2016, John’s Hopkins issued a report showing the number of deaths from medical errors, across the U.S., is 400,000.11 That means preventable adverse effects of medical care kill more Americans than unintentional injuries, chronic lower respiratory diseases, stroke, Alzheimer’s disease, and diabetes.12 Experts estimate that 65 million people are victims of medical errors.13
Total national costs (e.g., lost income, lost household production, disability, health care costs) are estimated to be between $37.6 billion and $50 billion for adverse medical events and between $17 billion and $29 billion for preventable adverse events.14
Extrapolation of the data suggests that medical errors kill more than 3,000 people in Arizona hospitals.15 By analogy, that means medical errors impact over 300,000 Arizonans every year. So, while the shift in medical negligence payments was encouraging, the more worrisome statistic is that there were only 195 payouts for all of these preventable injuries and deaths.
Get help for a medical malpractice claim
Medical malpractice cases are complex with several nuances. It is essential to get advice and representation from an experienced team, like us. If you believe that you or a loved one has been injured by a health care provider’s negligence, then you need Gage Mathers. By contacting us as soon as possible, we can help you determine if your case has merit. We are here to help you and answer your questions. Call (602)-258-0646 or contact us via email to discuss your case.
- Young, Matthew. Medical Errors – The Third Leading Cause of Death in the US. Bill of Health. 14 October 2016.
- Kenyon v. Hammer. Justia US Law. 1984.
- Trend: Medical Malpractice Tort Reform. FindLaw. 3 December 2018.
- Arizona Revised Statutes 12-561. Arizona State Legislature.
- Arizona Revised Statutes 12-563. Arizona State Legislature.
- Personal Injury Damages. Revised Arizona Jury Instructions (Civil), 6th. Arizona State Bar. July 2013.
- Arizona Revised Statutes 12-572. Arizona State Legislature.
- Arizona Revised Statutes 12-542. Arizona State Legislature.
- Arizona Revised Statutes 12-821.01. Arizona State Legislature.
- Arizona Revised Statutes Section 31. Arizona State Legislature.
- Daniel, Michael. Study Suggests Medical Errors Now Third Leading Cause of Death in the U.S. Johns Hopkins. 3 May 2016.
- Leading Causes of Death. CDC. 2018.
- ArtiModi. Just How Many People are Injured or Killed Every Year by Medical Errors? MedLeague. 25 January 2018.
- Errors in Health Care: A Leading Cause of Death and Injury. Institute of Medicine (US) Committee on Quality of Health Care in America; Kohn LT, Corrigan JM, Donaldson MS, editors. Washington (DC): National Academies Press (US); 2000.
- Gonzales, Angela. Medical errors result in 3,000 patient deaths in Arizona hospitals, report says. Phoenix Business Journal. 21 May 2019.