“The blunders of a doctor are felt not by himself but by others.”
Here’s what we cover:
Medical malpractice is negligence by a health care provider. (Included within the definition of a health care provider are physicians, nurses, physician’s assistants, dentists, chiropractors, hospitals, and health care clinics.) Medical negligence means that the health care provider failed to exercise that degree of care, skill, and learning that would be expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state of Arizona, acting in the same or similar circumstances.
Standard of Care
The Arizona statute adopts a statewide standard of care for all health care providers. Thus, a family practice doctor in one city or town is held to the same standard of care as a family practice doctor in any other city or town in Arizona. (For ease of reference, the terms “doctor” and “health care provider” may be used interchangeably.)
A doctor has a duty to refer a patient to another doctor or to a specialist if the standard of care requires such a referral under the circumstances.
A doctor who undertakes diagnosis or treatment outside his recognized field of practice is required to comply with the standard of care for physicians practicing in the field of medicine in which the diagnosis or treatment is undertaken.
Burden of Proof
In a medical malpractice case, the patient has the burden of proof. The party who has the burden of proof must persuade the jury, by the evidence, that the claim is more probably true than not true. This means that the evidence favoring the patient must outweigh the opposing evidence.
In medical malpractice cases involving certain treatment:
- rendered in an emergency department,
- rendered by on-call providers, or
- related to the emergency delivery of infants, the patient must persuade the jury by the evidence that the claim is highly probable.
This standard is more exacting than the standard of more probably true than not true, but it is less exacting than the standard of proof beyond a reasonable doubt.
In every case, the patient must prove that his doctor failed to comply with the standard of care. To prove this element, the patient must retain a standard of care expert. This expert will be a doctor familiar with the required standard of care, who will testify on behalf of the patient at trial. The doctor being sued undoubtedly will also have a standard of care expert testify on his behalf. (In the author’s experience, the experts rarely agree on much of anything, yet alone the applicable standard of care.) It is up to the jury to decide the winner in the “battle of the experts.”
Before a doctor can be found at fault, the patient must also prove that the doctor’s negligence was a cause of his injury. The patient may also use an expert witness to prove this element of his claim. Negligence causes an injury if it helps produce the injury, and if the injury would not have happened without the negligence.
If a doctor is found to be at fault for medical negligence, he will be ordered to pay damages to his patient. The amount of damages will take into account the nature, extent and duration of the injury, the pain and suffering experienced by the patient, the patient’s medical expenses, and the patient’s lost earnings. If the patient has received any medical or disability benefits, the jury may consider that evidence in evaluating the patient’s claim for damages. If the patient is married, the patient’s spouse may be awarded damages for loss of love, care, affection, companionship and other pleasures of the marital relationship.
In any trial involving a claim for future damages arising out of medical malpractice, any party may elect to receive or pay future damages for economic losses in periodic installments. There are rules governing the election to pay or receive future damages in installments.
A health professional who provides medical or dental treatment at a nonprofit clinic where neither the professional nor the clinic receives compensation for the treatment generally is not liable for medical malpractice, unless the professional was grossly negligent. A health professional who provides previously owned prescription eyeglasses free of charge through a charitable, nonprofit or fraternal organization generally is not liable for injury to the recipient if:
- the recipient has signed a medical malpractice release form, and
- the injury was not a direct result of the health professional’s intentional misconduct or gross negligence.
If you are the victim of medical malpractice, you must generally file a lawsuit against the negligent health care provider within two years from when the malpractice occurred, or when you discovered or reasonably should have discovered the malpractice. If a lawsuit is not filed within this two-year period, it will be barred by the statute of limitations. There are shorter time periods and claim requirements for malpractice actions against public entities and public employees.
The above article is an excerpt from Arizona Laws 101: A Handbook for Non-Lawyers, 2nd Edition (Fenestra Books, 2012), by Donald A. Loose, republished with the author’s permission.
Disclaimer: Laws change constantly. Specific legal advice should be obtained regarding any legal matter. The information contained on this website does not constitute legal advice and no attorney-client relationship is created.
Don likes to target shoot, scuba dive, and pilot airplanes. Most recently, he has been working on his golf handicap. Don enjoys writing, reading, and spending time with his wife, twin sons, and golden retriever, Lucy.