By John G. Stompoly

In Arizona, a medical malpractice action means an action for injury or death against a licensed health care provider based upon the provider’s alleged negligence, misconduct, errors, or omissions or breach of contract in rendering health care or services or for providing such health care or services without the express or implied consent of the patient.

The person bringing the lawsuit (the plaintiff) must prove that the health care provider being sued (the defendant) failed to exercise that degree of care, skill and learning expected of a reasonable, prudent Arizona health care provider in the same specialty acting in the same or similar circumstances and that such failure was a proximate cause of injury. Let me translate.

It will serve no useful purpose to explain the differences between negligence, misconduct, errors, omissions and breach of contract or why the law distinguishes between “health care” and “services”. All you need to know can be summarized as follows: Nobody guarantees perfect performance. Neither a mistake nor a bad result is necessarily malpractice. Rather, it must be the kind of mistake which not even the average health care provider would have made. I call this the “C” student standard, not the “A” student standard. As you can see, it’s pretty tough to prove malpractice. Maybe that’s why the defendant health care providers win over 90% of the cases that go to Trial.

To win the case, the plaintiff must do more than prove the health care provider failed to act reasonably and prudently (the legal word is negligence which is a fancy word for carelessness). The plaintiff must also prove that the defendant’s specific act or acts of negligence caused the plaintiff to suffer some injury he/she would not have suffered if the negligence had not occurred. For example, if someone is diagnosed with cancer and can prove the cancer should have been diagnosed a week earlier, negligence is established, but it is almost impossible to prove that the one week delay caused the patient to suffer any additional injury (I have won cases where a one week delay in diagnosing cancer did cause additional injury, even death, but that is very unusual). In other words, the negligence must be a cause of the injury or death for the plaintiff to win.

So far, I have been talking about what we call the substantive law. There are also procedural rules you have to follow. Peyton Manning knows how to call plays and throw the football, but there is a rule that says he has to move 10 yards in 4 downs to keep playing.

Similarly, in a medical malpractice case, I tell people there is a difference between knowing the truth and proving the truth. Except for a very small percentage of cases in which a rule called res ipsa loquitur applies (a Latin phrase which means the thing speaks for itself. If a surgeon accidentally leaves scissors in your stomach, you don’t need an expert to testify that’s negligence), the plaintiff must present testimony that the defendant was negligent and that the negligent treatment injured the plaintiff. That testimony must come from an expert in the same medical specialty as the defendant. This procedural rule causes a practical problem.

Health care providers are always willing to testify for their colleagues who are being sued. It is very difficult, however, to find qualified doctors who will testify against doctors. There is tremendous pressure from their colleagues to remain silent. Many doctors have told me they know the doctor I am investigating committed malpractice, but they will not say so in court for fear of being “blackballed” by the local medical community or having their ethics and even their license to practice medicine questioned by the American Medical Association.

All lawsuits must be filed within certain periods of time or the claims are forever barred. Most people and many lawyers believe that a medical malpractice lawsuit must be filed within two years from the date the malpractice occurred. That is not correct.

Although some lawyers disagree with my interpretation and claim the rule is more favorable to the defense, I think Arizona follows a discovery rule that states the two year period begins to run from the time a reasonable person (whoever that is) would have strongly suspected that he/she had been injured as a result of a particular health care provider’s negligence. That “strong suspicion” may not arise until years after the negligent event. For example, consider the person I mentioned who had abdominal surgery and the doctor accidentally left scissors in the patient’s stomach. No one tells the patient and nothing appears in the hospital record. After the surgery, the patient suffers abdominal pain, but thinks it is just adhesions as the surgeon suggested might happen. Finally, months or years later, the patient sees another doctor who decides to order an x-ray. The x-ray reveals the scissors in the stomach. The two year period begins to run from the time the patient learns of the x-ray result, not the date of the original surgery.

Since medical negligence cases are very expensive to pursue and very hard to win, they must be thoroughly investigated before the lawsuit is filed. Preparation includes obtaining an affidavit of merit from a qualified doctor willing to testify that the potential defendant doctor negligently injured you.

Because of the high cost of pursuing a medical negligence case and the difficulty of winning, if you have a complaint against a doctor or other health care provider, make sure you have the matter reviewed by an attorney with a lot of experience handling such cases. See my article on “How to Choose a Lawyer” for help.

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