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The Law of Medical Malpractice in Arizona:

A Survey of Basic Considerations

This article provides an overview of Arizona medical malpractice law. Like many states, Arizona has put in place various hurdles that medical malpractice plaintiffs must overcome, including strict requirements for expert witnesses. In 2009, Arizona passed a law to make it more difficult to bring malpractice suits against emergency room physicians. But when Arizona plaintiffs are successful in their lawsuits, they can recover substantial monetary damages because the Arizona Constitution expressly prohibits any ceiling, or upper limit, on how much may be awarded in damages for personal injury.

Because it is useful for laypersons who have been injured by healthcare treatment to have some understanding of the law, this article will describe Arizona law in plain language with minimal use of legal jargon, so that the material is accessible to non-lawyers as well as legal practitioners.

Section I below summarizes broad principles and concepts. Sections II through XI examine some of the mechanics of filing and litigating a medical malpractice action in Arizona.

To jump directly to any topic in the Table of Contents, simply click on it.

I. Overview of Basic Principles and Concepts
II. Filing Deadlines for Medical Malpractice Claims
III. Expert Affidavits and Other Requirements
IV. Immunities and Limitations on Liability
V. Medical Expert Witnesses
VI. Comparative Negligence / Several Liability
VII. Limitations on Damages
VIII. Limitations on Attorneys Fees
IX. Patient Compensation Funds
X. Apologies and Sympathetic Gestures
XI. Communications with Treating Physicians
XII. Disclaimer

I. Overview of Basic Principles and Concepts

To prevail on a claim for medical malpractice in Arizona, a plaintiff must prove that the healthcare provider fell below the acceptable standard of health care and that the substandard health care caused the claimed injury. The standard of health care to which Arizona healthcare providers are held is defined in a statute, which states that healthcare providers 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.”Ariz. Rev. Stat. § 12-563; Ryan v. San Francisco Peaks Trucking Co., 228 Ariz. 42, 262 P.3d 863 (App. 2011).

Ordinarily, the standard of health care that applies in a particular treatment situation must be established by expert medical testimony. Expert medical testimony is also generally required to prove that the healthcare provider’s breach in fact caused the patient’s injury, unless a causal connection is readily apparent. Ryan, supra; Rasor v. Northwest Hosp., LLC, 239 Ariz. 546, 373 P.3d 563(App. 2016).

II. Filing Deadlines for Medical Malpractice Claims

Basic Time Limit

In Arizona, the basic time limit for filing a claim alleging medical malpractice (also known as medical negligence) is two years. Ariz. Rev. Stat. § 12-542. The two-year “statute of limitations”begins running at the time of the underlying act or omission giving rise to the malpractice claim. But as discussed below, there are certain situations in which the time limit can be extended.

Discovery Rule

Arizona has adopted the so-called “discovery” rule, which pauses the statute of limitations clock if the healthcare provider’s negligence would be difficult for a patient to discover (e.g., a sponge left in a patient’s body). But a plaintiff must exercise reasonable diligence, because the clock begins ticking once the plaintiff is on notice to investigate the possibility of negligence.Walk v. Ring, 202 Ariz. 310, 44 P.3d 990 (2002); Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 898 P.2d 964 (1995);Pawlows v. Task Services, LLC, No. 1-CA-CV-10-0588, 2011 WL 1867425 (Ariz. Ct. App. May 10, 2011) (nonprecedential).

For a good illustration of how the discovery rule operates, consider Walk v. Ring. Immediately after having some major dental reconstruction work, a patient began experiencing severe pain in her jaw, or more precisely temporomandibular joint (TMJ), but it was not until some five years later that she learned from a subsequent doctor that the dentist may have been at fault in causing her TMJ. The Arizona Supreme Court held that the lower court should not have dismissed her malpractice lawsuit as being untimely, even though she filed it more than two years after the dental work. Until the subsequent doctor indicated to her that the dental work was substandard, she did not have enough information to suggest she should investigate whether her dentist, who had assured her he ground and capped her teeth properly, was negligent. 202 Ariz. 310, 44 P.3d 990 (2002).

If a healthcare provider fraudulent hides or conceals faulty medical care, the concealment will serve as an independent basis for pausing the statute of limitations. In Walk v. Ring, discussed immediately above, the dentist allegedly covered up his negligence by falsely assuring the patient that the dental work was properly performed. Because a jury could potentially find fraudulent concealment, the Arizona Supreme Court held that, for this reason too, the plaintiff’s lawsuit should not have been dismissed, regardless of the fact that it was filed more than two years after the dental work was completed.

In fraudulent concealment situations, the time limit for filing a claim is paused(or“tolled”) until the concealment is discovered or reasonably should have been discovered.Walk v. Ring, supra.

Injured Patients Who Are Minors

Minors who are injured by healthcare treatment generally have until their 20th birthday to sue for medical malpractice.Ariz. Rev. Stat. § 12–502. At one time, Arizona had a stricter rule about when minors injured as infants or small children must bring suit, but the Arizona Supreme Court struck down the former statutory rule on the ground that it ran afoul of a provision of the state constitution pertaining to the right to sue for injuries.Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 692 P.2d 280(1984); Ariz. Const. art. 18, § 6;see also Nur v. Eckel, No. 1-CA-CV-15-0269, 2016 WL 5389252 (Ariz. Ct. App. September 27, 2016) (nonprecedential).

III. Expert Affidavits and Other Requirements

Arizona requires most malpractice plaintiffs, at an early stage of the lawsuit, to present a medical expert opinion certifying that the claim has some merit.More specifically, at the time the lawsuit is filed,the plaintiff must certify whether expert opinion testimony is necessary to prove the malpractice claim. If so, the plaintiff must then, within a certain time period—i.e., with the initial disclosures that are required by rule 26.1 of Arizona’s rules of civil procedure—serve on the other parties a preliminary expert affidavit setting forth the expert’s opinion that the standard of care was breached and that it contributed to the damages sought by the plaintiff.Ariz. Rev. Stat. § 12-2603(B); St. George v. Plimpton, 241 Ariz. 163, 384 P.3d 1243(App. 2016).

If a plaintiff believes that expert testimony is not required to prove the claim, the plaintiff must say so at the time the lawsuit is filed. In response, the defendant healthcare provider may dispute the issue, arguing that expert testimony will be required, and apply to the court for an order requiring the plaintiff to serve a preliminary expert affidavit. Ariz. Rev. Stat. § 12-2603(D). If the court agrees with the defendant that expert testimony is necessary, the court will set a deadline for providing the expert affidavit, and the plaintiff’s claim will be dismissed if the deadline is not met. Ariz. Rev. Stat. § 12-2603(E).

Some examples will help clarify these rules. In Romero v. Hasan, a plaintiff certified that expert testimony would not be needed to prove his claim that his doctor prescribed the wrong dosage of a certain medication. His doctor disputed that contention, insisting that expert medical testimony was necessary, and asked the court to order the plaintiff to present an expert affidavit. Agreeing with the doctor, an Arizona superior court directed the plaintiff to provide the requisite affidavit within nine weeks.When the plaintiff was unable to obtain an expert affidavit by the court-imposed deadline, his malpractice claim was dismissed. The state appeals court upheld the dismissal, rejecting the plaintiff’s request to be excused from submitting the affidavit if his treating physicians agreed to testify.241 Ariz. 385, 388 P.3d 22(App. 2017).

Not only must a plaintiff serve an expert affidavit but the affidavit must also satisfy certain standards. In Gorney v. Meaney,a doctor defeated a plaintiff’s malpractice claim by arguing that the preliminary expert affidavit lacked the statutorily mandated elements—including a statement of the factual basis for the claim, a list of those acts the expert believed fell below the applicable standard of health care, and an opinion that the healthcare provider’s acts caused the plaintiff’s injuries.As the Arizona Court of Appeals observed in rejecting the medical expert’s affidavit as inadequate, “an expert must apply the facts of the particular case at hand to the applicable standard of care and issue an opinion as to whether the defendant’s specific actions met or fell short of that standard.”214 Ariz. 226, 150 P.3d 799 (App. 2007).

Presuit Notice

Unlike some other states, Arizona does not require a plaintiff to give advance notice to a healthcare provider before filing a malpractice suit.

Arbitration

Arbitration is a method of resolving disputes outside of a courtroom. That is, the parties agree they will have their dispute heard by an arbitrator, rather than a judge and jury, and will follow less formal procedures than would apply in court and have limited appeal rights.Unlike some states, Arizona does not have a statute that imposes specific rules and procedures for medical malpractice arbitrations.

IV. Immunities and Limitations on Liability

Emergency Room Care

In 2009, Arizona passed a law to make it more difficult to bring malpractice suits against emergency room physicians, based on the idea that emergencies require healthcare professionals to provide treatment under extreme time pressure and often without benefit of a patient’s medical history. Under the Arizona law, a plaintiff who suffers injury from emergency room treatment must show by “clear and convincing” evidence that the physician or other healthcare provider was negligent.Ariz. Rev. Stat. § 12-572. This is a higher burden of proof than applies in non-emergency contexts, where the basic test is whether it is “more likely than not” that the healthcare provider was negligent. The more demanding malpractice liability standard for emergency room situations adds a significant additional hurdle for plaintiffs who sue over deficient emergency room care.

Sometimes parties clash over whether or not a medical situation is covered by this emergency room statute. In Stafford v. Burns,a patient died after visiting the emergency room for a methadone overdose,and his parents brought suit for medical malpractice and wrongful death. The Arizona Court of Appeals interpreted the emergency room liability statute to mean that even if the patient had stabilized at the time of the allegedly negligent care, he was still receiving emergency medical treatment for purposes of the statute. In other words, even if there was no longer a true emergency at the time of the alleged negligence, the emergency room liability statute required a higher threshold of proof of negligence. Thus his parents needed to prove their malpractice claim by “clear and convincing” evidence, not merely show that there was “more likely than not” negligence.241 Ariz. 474, 389 P.3d 76 (App. 2017).

Arizona also has a second, narrower statute that heightens the burden of proof in emergency situations. It applies to malpractice suits brought against a physician who is called in to deliver a baby on an emergency basis after not having been involved in treating the patient for the pregnancy. Ariz. Rev. Stat. § 12-573.See also Harvest v. Craig, 195 Ariz. 521, 990 P.2d 1080(App. 1999).

Nonprofit Health Clinics

Arizona also makes it difficult to sue health professionals who provide uncompensated services at nonprofit clinics. Such health providers are not liable in a medical malpractice action unless they are “grossly negligent”(an especially flagrant form of negligence); there is no liability for “ordinary” negligence.The nonprofit clinics covered by this statute include offices, homeless or other shelters, and health or screening fairs where treatment or screening is provided at no cost to the patient. Ariz. Rev. Stat. § 12-571.

Government Defendants

Because governments usually cannot be sued without their consent, issues may arise about whether a government-owned entity such as a state or county hospital, or a healthcare professional who works at such a facility, has immunity from a malpractice claim. Government immunity is addressed by Arizona statute. Ariz. Rev. Stat. § 12-820.01 et seq.

In addition, if the defendant is a government entity, special notice requirements may need to be met. In Little v. State, a member of the University of Arizona women’s basketball team died after collapsing in a training room. Her mother’s medical malpractice suit was held barred on procedural grounds for failing to comply with a requirement that anyone wishing to sue a public entity first must file a notice of claim within 180 days after the cause of action accrues. 225 Ariz. 466, 240 P.3d 861 (App. 2010); Ariz. Rev. Stat. § 12-821.01.

V. Medical Expert Witnesses

Medical malpractice cases typically depend heavily on the testimony of medical experts, who aid the court and the jury in understanding the applicable standard of health care, whether it was breached, and whether the breach caused the plaintiff’s injury. In Arizona, there are strict rules about who may give expert testimony in a medical malpractice case.

Most importantly, the expert witness’s training and experience must resemble that of the defendant healthcare provider. The specific rules regarding the degree of similarity required depend on whether or not the defendant healthcare provider is a specialist.

When Defendant Is A Specialist

An expert witness testifying against a defendant who is a specialist must specialize in the same field of medicine. If the defendant is board certified, an expert witness must be board certified in the same specialty.In addition, an expert witness testifying against a specialist must have devoted a majority of his or her recent professional time to practicing or teaching in that specialty. Ariz. Rev. Stat. § 12-2604(A)(1), (2).

Explaining these rules in Baker v. University Physicians Healthcare, the Arizona Supreme Court noted that a judge must make several determinations before deciding whether a medical expert witness is qualified to testify. First, the court must determine if the medical treatment involved the identified specialty. If it did, testifying experts must share the same specialty as the treating physician. The judge then must determine if the treating healthcare provider is board certified within that specialty. If so, any testifying expert must also be board certified in that specialty.

Defendants often use these rules to attempt to disqualify the plaintiff’s expert witnesses.For instance, in Baker the defendant physician pointed out that the plaintiff’s expert witness(board certified in hematology and medical oncology) was certified in a different specialty from the defendant (pediatric hematology-oncology).Because their board certifications were different, the trial court ruled that the expert could not testify in the case.On appeal, the Arizona Supreme Court found no error in this ruling, stressing that by statute the plaintiff’s expert needed to be board certified in the same specialty as the defendant, even if the plaintiff’s expert would have been competent to provide the medical treatment at issue in the case.231 Ariz. 379, 296 P.3d 42(2013).

In another lawsuit, St. George v. Plimpton, a certified nurse midwife who allegedly botched the delivery of a baby was successful in disqualifying an obstetrician/gynecologist from testifying as an expert witness. Under the Arizona statute, explained the Arizona Court of Appeals, any expert testifying as to the standard of health care in this case needed to be a certified nurse midwife. This meant the obstetrician/gynecologist could not testify as to the standard of care applicable to a certified nurse midwife, even if he had supervised nurse midwives throughout his career. 241 Ariz. 163, 384 P.3d 1243(App. 2016).See also Lo v. Lee, 231 Ariz. 531, 298 P.3d 220(App. 2012).

When Defendant Is A General Practitioner

Different rules apply if the defendant is a general practitioner rather than a specialist. In that event, a medical expert witness must be a licensed healthcare provider who,at the time of the events giving rise to the lawsuit, devoted a majority of his or her professional timeeither to active clinic practice as a general practitioneror teaching ofstudents in the same health profession as the defendant.Ariz. Rev. Stat. § 12-2604(A)(3).

Statewide Standard of Care

Arizona uses a statewide standard of care, meaning that healthcare providers are expected to exercise the degree of care that would be expected of a reasonable, prudent similar health professional within the state. Ariz. Rev. Stat. § 12-563. However, in some cases a national minimal standard may be used to establish the minimal degree of health care expected in Arizona.Also, as some courts have noted, standards in medicine increasingly have become nationalized over the years due to standardized textbooks in medical schools, certification boards, and so forth. See McGuire v. DeFrancesco, 168 Ariz. 88, 811 P.2d 340(App. 1990); Smethers v. Campion, 210 Ariz. 167, 108 P.3d 946 (App. 2005); see also Ariz. Rev. Stat. § 12-2604(A) (permitting medical expert witnesses to be licensed in a state other than Arizona).

Daubert Challenges

Arizona also permits expert witnesses to be disqualified from testifying for reasons other than the ones discussed above, including, in particular, that the testimony does not satisfy the requirements of the Arizona Rules of Evidence. Ariz. Rev. Stat. § 12-2604(C); Seisinger v. Siebel, 220 Ariz. 85, 203 P.3d 483 (2009).

Number of Expert Witnesses

In Arizona, each party ordinarily is permitted to call only one expert for any given issue. Ariz. R. Civ. P. 26(b)(4)(D) (each side “presumptively entitled to call only one retained or specially employed expert to testify on an issue”).Before this restriction was imposed,it was common in malpractice cases to present testimony from multiple physicians as to the standard of care and causation, but,due to the rule change, parties now are required to pare down the number of expert witnesses. See generally Smethers v. Campion, 210 Ariz. 167, 108 P.3d 946 (App. 2005).

VI. Comparative Negligence / Several Liability

Sometimes a healthcare provider will attempt to pin blame on the patient, insisting that the patient caused his or her own injury by, for instance, neglecting to follow post-surgery instructions or supplying inaccurate health history information. To address situations in which a plaintiff bears some degree at fault, Arizona applies the doctrine of “comparative negligence.” Under this doctrine, a patient’s lawsuit is not barred, but the full damages are reduced in proportion to the relative degree of the patient’s fault that contributed to causing the injury. For example, if the healthcare provider was 75 percent at fault for the injury and the plaintiff 25 percent at fault, the plaintiff can recover a monetary judgment but the amount of it will be reduced by 25 percent. Ariz. Rev. Stat. § 12-2505; Englert v. Carondelet Health Network, 199 Ariz. 21, 13 P.3d 763 (App. 2000).

On a separate issue, if there is more than one negligent healthcare provider, it becomes necessary to decide who pays what share of the monetary damages. Under Arizona law, each defendant is liable for only so much of the plaintiff’s damages as are allocated to that defendant in proportion to that defendant’s percentage of fault.For example, if one defendant bore 30 percent of the fault, that defendant pays 30 percent of the monetary damages. Under Arizona’s system, it is generally unnecessary for defendants to sue other defendants for “contribution,”because Arizona has abolished the doctrine of “joint and several” liability in this context.Ariz. Rev. Stat. § 12-2506; see also§ 12-2504. And see Law v. Verde Valley Medical Center, 217 Ariz. 92,170 P.3d 701 (App. 2007); Neil v. Kavena, 176 Ariz. 93, 859 P.2d 203(App. 1993).

VII.Limitations on Damages

Compensatory and Punitive Damages

Money claimed by a plaintiff as compensation for a loss is referred to as “damages.” Unlike many states, Arizona does not impose a statutory upper limit, or “cap,” on the amount of damages that may be awarded on a personal injury claim. In fact, the Arizona Constitution expressly prohibits any such ceiling, stating: “No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person….”Ariz. Const. art. 2, § 31.

Arizona’s constitutional provision outlawing caps on personal injury damages is “almost unique” among states, the Arizona Supreme Court observed inSmith v. Myers, 181 Ariz. 11, 887 P.2d 541 (1994).

Mandatory Periodic Payments

If a plaintiff is awarded future(i.e. forward-looking) damages for medical expenses or lost earnings, defendants often prefer to make these payments at defined intervals rather than as one lump-sum payment.In 1989, the Arizona Legislature passed a law mandating that damage awards be structured as periodic payments in certain circumstances. But in Smith v. Myers, supra, the Arizona Supreme Court struck down the statute, holding that it violated the Arizona Constitution’s provision outlawing caps on personal injury damages, because the statute limited medical malpractice victims “to a significantly less valuable remedy than would otherwise be available.”

VIII.Limitations on Attorneys Fees

Unlike some states, Arizona does not have a medical malpractice statute that specifically limits attorneys fees.

However, any party in a malpractice case may ask a court to determine the reasonableness of a party’s attorneys fees. In the event a party makes such a request, the court is required to complete the determination within 20 days.Ariz. Rev. Stat. § 12-568. There is little case law interpreting this provision.

IX. Patient Compensation Funds

While some states have created compensation funds to reimburse particular categories of patients injured by healthcare treatment, Arizona has not done so.

X. Apologies and Sympathetic Gestures

If a healthcare provider apologizes or expresses responsibility for an unanticipated treatment outcome, those statements or comments cannot be used as an admission of the healthcare provider’s liability or as evidence of an admission against interest.Ariz. Rev. Stat. § 12-2605.

XI. Communications with Treating Physicians

In Arizona, defense counsel in a medical malpractice lawsuit generally may not communicate directly with a plaintiff’s treating physicians without the plaintiff’s consent. This means defense counsel may not pose questions to the plaintiff’s treating physicians prior to trial except through the formal methods of discovery available to litigants in a civil action. But this rule does not prevent a defendant hospital’s attorney from communicating with the hospital’s own employees who provided treatment to the plaintiff. Duquette v. Superior Court, 161 Ariz. 269, 778 P.2d 634 (App.1989); Phoenix Children’s Hosp., Inc. v. Grant, 228 Ariz. 235, 265 P.3d 417 (App. 2011).

XII. Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

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