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Medical Malpractice

Medical Malpractice

A more common problem than it should be.

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. 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.

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.

The requirements of a medical malpractice claim.

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. A bad or suboptimal outcome does not mean the health care provider committed malpractice.

Negligence

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.

Causation

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

Damages

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.  Collectable damages may include:

  • physical pain,
  • disability,
  • 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. 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.  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 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 Joe's team. By contacting us as soon as possible, we can help you determine if your case has merit.

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If injured by medical negligence, we are here to help you!