Important Information about your law suit

Every medical malpractice lawsuit requires the proof of a duty owed to the patient (that is the healthcare provider was somehow bound to perform the medical care), breach of that duty (medical negligence), causation (the breach of the duty owed to the patient is the direct or sufficient cause of the patient's unexpected outcome), and damages (the unexpected outcome and various other damages). Below is a more detailed description of each element, followed by a brief overview of the fundamentals of medical malpractice litigation.

If you are interested in learning more about medical malpractice or your potential medical malpractice claim, please call Patton Law Practice at 480.905.9208 or 1.888.905.9208 (toll free). We are here to help you

Duty Toward The Patient:

The first element in any medical malpractice lawsuit is that of a duty owed to the patient. Thus, the first question to address in a medical malpractice lawsuit is whether the medical professional owed any duty to the plaintiff.

Often this question is easily answered. When a patient goes to a physician with a problem and the physician agrees to treat the patient, the physician has assumed a duty to treat the patient with that degree of skill, care, and diligence possessed or exercised by competent and careful physicians. By agreeing to diagnose or treat a patient, the physician has indicated that s/he has the appropriate training and skill to adequately care for the patient and has assumed a duty to use that skill and training to treat the patient.

breach of Duty (The Accepted Standards of Practice):

Medical malpractice results if the physician injures his or her patient by using skill or rendering care that is less than that which could be expected from a reasonably competent physician diagnosing or treating the same condition.

In most cases, a plaintiff must present expert testimony on what the standard of care is and the manner in which the defendant departed from that standard. Medical malpractice lawsuits often become battles in which each side has expert witnesses declaring different acceptable medical standards. Therefore, it is imperative that an attorney for a person bringing a malpractice case states the case in clear, understandable terms so that any juror can comprehend what the physician did wrong.

Causation:

Causation frequently involves two inquiries-whether the professional's actions in fact caused the harm to the patient, and whether the professional's actions were the proximate cause of the patient's harm.

The "cause-in-fact" inquiry is usually answered with a "but-for" test. A physician's action caused the patient's harm if, but for that action, the patient would not have been harmed. The proximate cause inquiry asks whether, if the action did in fact cause the harm, the professional ought to be held responsible for his or her actions. In some rare instances, the physician's actions are so removed from the final harm to the patient that the law cuts off liability for those actions by saying that the tortious conduct was not proximate to the harm. In other words, there is not a close enough connection between the action and the harm to say there is proximate causation.

Damages:

A person who is the victim of medical malpractice can pursue litigation for the injuries and the consequences of those injuries. A partial list of damages follows.

GENERAL DAMAGES:
Also called "non-economic damages" are generally limited to such non-economic losses as:

• Physical Pain and suffering
• Emotional distress/mental suffering
• Inconvenience
• Loss of society
• Loss of consortium

SPECIAL DAMAGES
Also called economic damages these include:

• Loss of future income
• Lost wages
• Loss of earning capacity
• Past medical bills
• Future medical bills
• Wrongful death
• Funeral and burial expenses
• Loss of business opportunity/ loss of employment
• Property losses
• Property repair and replacement
• Substitute domestic services

PUNITIVE DAMAGES:

• Despicable conduct
• Fraud and malice
• Conscious disregard for the safety of others
• Oppression

CONSENT:

Physicians and hospitals have tried to protect themselves from medical malpractice lawsuits by having patients sign consent forms before they receive treatment. These consent forms typically include warnings that medicine is an imperfect art and not an exact science, and that patients must assume all the risks of any procedures. By signing a consent form, a person does not give up all his or her rights to sue the medical professional if things go wrong. First, such an agreement may not be valid if the physician does not fully inform the patient of the risks associated with the particular procedure. In other words, only a complete and informed consent is valid. However, even a valid consent form is no protection for a physician who either acted beyond the scope of the consent or who failed to perform the procedure according to accepted medical standards. A patient also may properly sue a medical professional if a person other than the one named on the consent form performs the procedure.

Limited Time To File A Lawsuit (Statute of Limitations)

The statute of limitations is two (2) years from when the patient (or sometimes a particular family member or guardian) either knows, or should know with the exercise of reasonable diligence, that an injury has occurred and there is a reasonable possibility that it was caused by medical malpractice.

If the patient in question is under the age of eighteen (18) at the time of the medical treatment, then the two (2) year statute of limitations does not start running until s/he reaches eighteen (18).

Disclosure and Discovery
(ARCP Rule 26 - 37)

The discussion of disclosures and discovery is a general discussion only. There are many procedural rules applicable to each procedure. One must consult the applicable rules.

During the period while a case is pending, the parties engage in a process called discovery to determine what the issues of the case are and what evidence exists that relates to the case. This process is generally governed by the Arizona Rules of Civil Procedure, Rules 26 through 37.

Arizona has also adopted disclosure rules that require each party to affirmatively disclose all facts and witnesses the parties are aware, whether helpful or harmful, to all other parties. This includes the names and addresses of witnesses or people who may have knowledge or relevant information. One must also disclose what information these potential witnesses may have. One must identify the existence, location, custodian and general description of any relevant tangible evidence and documents the party plans on using at trial.

Each party must disclose the legal theories they are asserting, as well as the factual basis for such theories. Any expert(s) each party plans to call at trial must also be disclosed, including the expert's name, address, qualifications, subject matter, and the substance of the expert's opinions and basis for those opinions. The parties are to exchange disclosure statements of all known information within 40 days of the filing of the Answer. As additional information becomes known, the parties are under a continuing duty to make reasonable supplemental disclosure of the additional information within 30 days of its discovery. The purpose of these disclosure requirements is to speed up the pretrial process and reduce the costs of litigation.

Beyond the affirmative disclosure requirements, there are certain procedures available to obtain specific information from the other parties or witnesses. Some of these procedures are described as follows:

Depositions: ARCP Rules 27 to 32 A deposition is a procedure where a witness is required to appear at a specified location for the purpose of providing information regarding a matter under litigation. The witness can be compelled to bring documents or other tangible evidence to the deposition. At the deposition, the attorneys for the parties place the witness under oath for the purpose of answering questions. The questions and answers are taken down by a court reporter, which then prepares a written transcript of the deposition. After the transcript is prepared the witness has the opportunity to review and make corrections to the transcript. The deposition can be used later at trial to impeach the witness with any inconsistent statements or can be read to the jury instead of calling the witness in person at trial. Depositions can also be videotaped so the jury can see the witness as the witness is testifying. Depositions can also be done with written questions and answers.

Interrogatories: ARCP, Rule 33 The parties can send to one another written questions that the other side must answer. The party receiving the interrogatories has 40 days in which to answer the questions or make an objection to the questions. The answers to the interrogatories can be read to the jury, as admissions of the answering party, besides its primary function of finding out information.

Request for Production or Inspection: ARCP, Rule 34 A party may request another party to produce tangible evidence for review and copying or to go on to a property to inspect the premises. The party receiving the request has 40 days to comply with the request or file an objection to the request. Any item with the possession or control of the party can be requested, subject to an objection for the production or inspection.

Physical or Mental Examination: ARCP, Rule 35 When a party's physical or mental condition is at issue or in controversy another party can have that party examined by the appropriate physician or psychologist. The party being examined may have a representative present during the examination and may also record it by audiotape. A copy of any record made of the examination shall be made available to any party upon request. In addition, the party being examined can request that the examiner make a report of the examination and the report is due 20 days after the request for the report is made.

Request for Admission: ARCP, Rule 36 - Any party can send requests for admissions to any other party. The request for admission sets forth statements that the receiving party must admit or deny or object to within 40 days of receipt. If no response by way of admission, denial or objection is made within 40 days, the statement is deemed admitted. The party, in responding to a request for admission, must make reasonable inquiry of information that is known to or readily obtainable by the party.

Sanctions: ARCP, Rule 37 Failure by a party to comply or respond to a discovery request or to disclose information may result in a sanction to the non-responding party. The range of sanction is quite broad and can range from financial sanctions to striking a party's pleadings. The type of sanction imposed is left to the sound discretion of the Court.

If a governmental facility or a facility affiliated with the government (e.g., Maricopa Integrated Health Systems, University Medical Center) is involved, you must file a proper "notice of claim" within 180 days of alleged malpractice. If the VA hospital is involved you must file a properly completed standard form 95 within two years from the accrual of the claim.