Medical negligence, also called medical malpractice, is an epidemic in the U.S. 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. The biggest problem for many victims of medical malpractice is that they cannot find a lawyer to take their case because the ultimate recovery will barely cover litigation costs. Thus, the negligent health care provider is never held accountable for their malpractice.
In Arizona, people have the right to sue their health care providers for medical malpractice. Regardless of the false narratives about how these cases impact the delivery of health care, you have a constitutional right to hold health care providers accountable for their 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.
As the injured person, you have a burden. 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.
In Arizona, juries are instructed that medical negligence is the failure to comply with the applicable “standard of care.” To comply with the applicable standard of care, the doctor must exercise that degree of care, skill, and learning that would be expected under similar circumstances of a reasonably prudent doctor within this state. What does that mean?
A bad or suboptimal outcome does not mean the health care provider committed malpractice. The health care provider must have been negligent. This could be a doctor, chiropractor, nurse, or some other health care provider (but we will refer to doctors). You must prove the doctor failed to act as a reasonably prudent practitioner under the circumstances. In other words, did the doctor deviate from the standard of care? This must be proven by presenting a medical expert within the same specialty as the defendant doctor.
Does the doctor have to be perfect? No.
Are doctors allowed to make mistakes? Yes, sometimes. Some mistakes are considered acceptable. For instance, during abdominal surgery, surgeons are often forgiven if they mistakenly cut the intestine. This is considered an acceptable risk, given the nature of surgery. However, a reasonably prudent surgeon would recognize the mistake and fix it immediately. The failure to recognize the mistake is considered negligent and below the standard of care.
Generally, the key is that there are certain rules and processes doctors must follow to comply with the standard of care. Complying with those rules and following those processes is how doctors protect their patients from preventable errors. We all want doctors to avoid preventable medical errors. We deserve doctors who are interested in protecting their patients and ensuring their safety.
The takeaway is that not all bad outcomes are the result of medical negligence. Sometimes bad things happen. However, it takes experienced medical malpractice lawyers and their experts to analyze the facts and determine if medical negligence occurred.
The second element is proving that the doctor’s negligence caused or contributed to injury or 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.
Finally, you must prove the injury led to specific damages. Even if it is clear that the doctor was negligent, you cannot sue for malpractice if you did not suffer any harm. Collectible damages may include:
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. Frankly, with the conservative nature of Arizona jurors and general deference given to health care providers, you might want to view every case as requiring clear and convincing evidence.
There are many ways that health care providers can negligently cause injuries. For instance:
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 will be addressed in future blog posts, but just know that Arizona’s lawmakers enacted several obstructionist laws that aim to 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.
These cases rarely, if ever, resolve without hiring a lawyer. Doctors who commit medical malpractice, and their liability insurers, will not knock on your door to settle a claim before you hire 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. Also, defense lawyers don’t get paid by settling cases quickly. They bill by the hour. I have a case with clear negligence that is now in its third year of litigation because of the scorched-earth defense.
Also, 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.
The hits keep coming.
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. 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. 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.
Get help for a medical malpractice claim
Medical malpractice cases are complex with several nuances. It is essential to get advice and representation from a lawyer who focuses on medical malpractice cases. Contact us if you think someone you love was seriously and permanently injured by a careless health care provider.
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