Medical Malpractice in Arizona, By Brian Strickman Courtesy of Strickman Law Office, PLLC June 19, 2013 Rev.

. June 27, 2013 According to a correspondence in the New England Journal of Medicine, the average cost to defend a medical malpractice claim is $22,959+/-$41,687. Claims in which an indemnity payment was involved costs more than twice as much.12 Indemnity payments occur when a physician must indemnify another physician, or oftentimes their employer (hospital) for the damages that those parties incurred as a result of the physicians malpractice. Approximately 3% of all medical spending goes towards defending malpractice claims.3 Furthermore, approximately 7% of all physicians face a malpractice claim, on average, per year.4 First, there are a variety of simple methods that physicians and healthcare professionals alike can employ in their daily routines to help avoid the possibility of a malpractice claim. Documentation, consulting colleagues for advice, and maintaining appropriate professional boundaries are just some of the easy ways to help protect you from committing malpractice. 5 In addition to the every-day methods there are also contractual and legal, procedural ways that a physician can protect themselves against medical malpractice claims. Incorporating a binding arbitration provision in their contracts is one method.6 However, if these provisions are not prepared correctly it is likely that a court will strike them down.7 Arbitration provisions must be clear, and the patient must have time to read them. The use of such provisions in emergency situations will generally result in a court setting the arbitration clause aside. 8 The arbiter is a neutral third party. Arbitration can be performed by a single arbiter or a panel. The arbiter can be decided by the physician, the patient, or both. Permitting the patient to have a

Seth Seabury, Amitabh Chandra, Darius Lakwalla & Anupam B. Jena, Defense Costs of Medical Malpractice Claims, N Engl J Med, April 5, 2012, http://www.nejm.org/doi/full/10.1056/NEJMc1114805. 2 Ezra Klein, Medical Malpractice Costs, The Washington Post, September 23, 2009, http://voices.washingtonpost.com/ezra-klein/2009/09/medical_mapractice_costs.html. 3 Id. 4 Doug Gavel, Study Sheds New Light on Medical Malpractice Costs and Trends, Harvard John F. Kennedy School of Government, August 17, 2011, http://www.hks.harvard.edu/news-events/news/articles/chandra-study. 5 Thomas G. Guthell, MD, A Pocket Guide to Avoiding the Most Common Boundary Pit falls, Psychiatric Times, March 03, 2011, http://www.psyciatrictimes.com/articles/pocket-guide-avoiding-most-common-boundarypitfalls. 6 Michael Sacopulos & Jeffrey J. Segal, Limiting Exposure to Medical Malpractice Claims and Defamatory Cyber Postings via Patient Contracts, Clin Orthop Relat Res 467:427-433 (2008). 7 AMERICAN LAW OF MEDICAL MALPRACTICE (THIRD) 7:5 (2005). 8 Id.

choice between several potential arbiters selected by the physician can assist in avoiding a courts decision to set aside the arbitration clause. A claim for malpractice must be brought within the statute of limitations. The statute of limitations in Arizona is 2 years.9 The statute of limitations begins to run at the time of injury.10 In other words the accrual time is when the patient suffers injury, and not at the time the actual malpractice is committed. This means that a patient would have a cause of action even if the malpractice were committed 5 years ago, but the patient did not suffer harm until last year, because last year is within the statute of limitations. Furthermore the statute of limitations is tolled (does not begin to run) until the claimant is 18 years of age. The statute of limitations does not run if the claimant is imprisoned or mentally incompetent. 11 If the statute of limitation has run then this serves as a defense to a medical malpractice claim. A medical malpractice claim in Arizona cannot be based upon either assault or battery.12 A medical malpractice claim that is brought based on breach of contract requires that the contract have been in writing.13 However, most medical malpractice claims will be brought under the grounds of negligence.14 Negligence is a tort that occurs when a standard of care has been breached.15 A medical malpractice claim in negligence consists of four elements. The first is the duty of care owed to the patient.16 The duty for a medical professional requires that the medical professional provide a minimum standard of care consistent with their medical training. 17 In other words they must act as a reasonable physician, in good standing, in the same situation; otherwise they will breach that duty of care. A breach of the duty of care is the second element of negligence. For a specialist the standard of care is determined by other specialists in good standing. In order to bring a medical malpractice claim in negligence the plaintiff (patient) must show that the physician breached the duty of care owed to their patient, and that the breach caused the plaintiffs injury. 18 Causation and damages are the third and fourth elements of negligence. 19 Causation consists of two elements, a but for causation, and a proximate causation. The but for causation requires that but for the physicians conduct the patient
9

Ariz. Rev. Stat. 12-542(1) (2013). DeBoer v. Brown, 138 Ariz. 168, 673 P.2d 912 (1983). 11 Arizona State Senate Issue Paper, Medical Malpractice, June 22, 2010. 12 Ariz. Rev. State 12-562(A). 13 Ariz. Rev. State 12-562(B). 14 rd Marcia M. Boumil & Paula A. Hattis, Medical Liability 39-80 (West Publishing Co., 3 ed 2011).. 15 PROSSER AND KEETON ON TORTS (FIFTH) 30 (1984) 16 Id. 17 Id.at 32. 18 Supra note 13, at 43-52. 19 Supra note 14.
10

would not have been harmed. The proximate causation requires that the patients injuries are foreseeable. 20 Foreseeability can be affected by the patients individual medical problems and the physicians training. Damages may include everything from financial loss due to inability to work or medical expenses, and pain and suffering. The important fact in negligence damages is that the patient was actually harmed.21 In order for the patient to make their case as a plaintiff in medical malpractice actions, evidence is typically provided via expert witnesses. Since the burden is on the plaintiff, if the plaintiff fails to make their case then the physician can simply move for a directed verdict.22 A directed verdict is a procedural tool that permits the defense to move for a verdict in their favor after the plaintiff has presented their case. A physician can defend against negligence claims in several ways. One is the fact that the burden is on the plaintiff as discussed above. Another is under the grounds of comparative negligence. If a patient fails to follow doctors orders and that failure has incr eased the patients damages then the physician is not responsible for those damages. 23 Medical malpractice claims can raise a variety of issues. In Arizona the relevant statutes derive from the Medical Malpractice Act which can be found in A.R.S. 12-561 594. If you have questions about medical malpractice please contact Strickman Law Office, PLLC at 480316-8113.

20 21

Id. Id. 22 Id. at 52-54. 23 Supra note 6, at 7:2.