Medical Malpractice Terms and Common Claims

We have listed below several concepts and types of cases relating to Arizona Medical Malpractice Law.  If you need more information regarding these subjects or any others, please contact The Law Offices of William D. Black @602 265-2600 or Email us @ info@billblacklaw.com. We would be happy to help you!

Joint and Several Liability

Arizona has abolished the doctrine of joint and several liability. Tortfeasors are only severally liable for the amount of claimant’s damages equal to their percentages of fault, unless they were in a principal-agent relationship, acting in concert, or pursuing a common plan or design to commit a tortious act and actively taking part in it. This means if several medical providers are claimed to have been negligent and caused damage to a patient, each provider can only be responsible for his or her percentage of fault, as it relates to the larger picture. The effect of this law is to a large degree eliminate the deep pocket recoveries of the past.

Vulnerable Adult Statute. In 1989, Arizona adopted a civil version of the Adult Protective Services Act known as the VAS. The Act was intended to create a statutory civil cause of action. The statue provides that an incapacitated or vulnerable adult who has been injured by neglect or abuse can file suit in Superior Court against any person who had been employed to provide care or who has assumed the legal duty to provide for their medical care.

Vicarious Liability

Arizona courts have recognized the principle of ostensible or apparent agency in the hospital-physician context.

Arizona Is Not a Direct Action State In Arizona, in a medical malpractice case, the insurance company for the medical provider who allegedly committed the malpractice may not be named as a party defendant nor the jury be made aware that the medical provider is covered by insurance. If this information is elicited in the testimony, it can become the basis for a mistrial and the attorney who inadvertently or intentionally elicited this information may be sanctioned.

No Limitations on Attorney’s Fees

Arizona does not place a limit on the fees recoverable by an attorney in a medical malpractice action.

Collateral Source Rule

In Arizona, a defendant may elect to introduce evidence of the claimant’s receipt of collateral payments, such as disability benefits. A defendant may introduce evidence that the plaintiff may receive benefits (insurance, Social Security, etc.) that might compensate the plaintiff in some measure for the injuries he or she claims in the action. If the defendant does introduce such evidence, the plaintiff may introduce evidence that such benefits may be subject to liens or rights of reimbursement by the providers thereof. This evidence does not compel a particular result (e.g., denial of damages that are or will be reimbursed), but is given whatever weight the trial of fact chooses to give it.

Reporting Requirements

Upon settlement or upon entry of a monetary judgment by a court in a medical malpractice action, the plaintiff’s attorney and the defendant’s professional liability insurers must notify the defendant’s health profession regulatory board. This requirement applies to any heath care practitioner who was involved in a medical malpractice claim, as well as a nursing care institution involved in a claim pursuant to A.R.S. 46-455.

Confidentiality or Non-disclosure provisions in Settlement Agreements. There are many medical malpractice cases resolved through settlement agreements in Arizona where one of the conditions of settlement which the defendant medical provider requires is that the terms of the settlement be kept confidential or not be disclosed to the public in general. This obviously is an attempt to protect the reputation of the medical provider and also to prevent the public from knowing which providers may have erred. This may seem somewhat unfair to some victims that they are required to remain silent about their case. They may believe that by promising silence, they are enabling the physician to keep harming other patients in the local community. The fact is that in many cases, the medical professional has simply made a mistake in a particular situation and will not go on to repeadtedly harm other patients in the same way.

The word “mistake” may seem too light considering the repercussions of medical malpractice. Everyone makes mistakes at work, but when a physician fails to do their work properly, lives can often times be seriously jeopardized.

The medical providers, however, do not necessarily walk away without any negative repercussions on their record. The number of medical malpractice lawsuits against any doctor is on record and can be discovered by patients or prospective patients. Also, if a physician for whatever reason does continue to show incompetence and harms other patients, he or she can lose their license to practice medicine.

Immunities

In Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), the Arizona Supreme Court abolished the doctrine of sovereign immunity in Arizona. However, health care providers are immune from liability with respect to damages incurred in connection with the rendition of health care services at non-profit clinics where neither the physician nor the clinic receives compensation. Ariz. Rev. Stat. Ann. § 12-571 (West 1992). The non-profit health care provider is not afforded immunity, however, if the provider is grossly negligent. Id. In addition, both the state and its political subdivisions are afforded immunity from liability for punitive damages. Ariz. Rev. Stat. Ann. § 12-820.04 (West 1992).

Medical Malpractice Frequently Involve Claims Against Multiple Doctors and Nurses Who Share In Fault

A large percentage of the catastrophic injuries or deaths which occur resulting from medical malpractice or negligence take place in hospitals, and when due to provable negligence, most such cases usually involve multiple physicians and nurses who share the fault. Most nurses are employees of the hospital, but almost all physicians are not employees of the hospital. In most instances, the hospital is not legally liable for any negligence of the physicians. Instead, most physicians are “independent contractors”. This results in all physicians who are involved in the care of the patient in a hospital and who could be responsible for the injuries to be named as defendants, along with the hospital.

There are many circumstances, especially communication errors or other hospital system errors, which can result in a significant injury or death of a patient. Proving the connections between the negligent care and outcome of a significant injury or death can be very difficult. Another area presenting great challenges is when a patient prior to the claimed negligence was suffering from a number of pre-existing conditions

Claims Arising From Emergency Room Errors

When a person is injured or facing a critical medical condition which takes them to the emergency room, the last thing they would expect is that their condition will be worsened by the visit. Unfortunately, however, emergency rooms are the site of thousands of errors every year, many of which can cause unnecessary patient harm and at times even death. Because of overcrowding and short staffing, poorly equipped emergency rooms and poorly trained staff consisting of physicians and nurses, many emergency room patients become victims of malpractice or wrongful death while being cared for in the emergency department. Last year more than 240,000 people died from medical malpractice- related incidents across the country and almost half of those were a result of errors made in a number of emergency rooms. Emergency room errors are common and in many instances overlooked. Because of the increasing number of patients and the need to prioritize or “triage” patients by order of medical urgency, many things can go wrong in any emergency room setting. However, as long as the patient eventually receives the proper care, which usually requires admission to the hospital for further testing and treatment, the errors which take place in the emergency room seem to have little consequence. However, when the patient is improperly discharged from there and advised that there is nothing wrong, or when a diagnosis of a significant adverse condition is missed or overlooked, the initial medical errors in the emergency room can have significant consequences and repercussions.

Some of the life-threatening conditions seen in the ER most often include abdominal, chest or shoulder pain; infections and fevers; orthopedic injuries, obstetric and gynecologic emergencies and headaches.

Common Claims Relating to Hospital Negligence Are:

  • Failure of staff to observe and diagnose a serious health condition
  • Failure to properly carry out and administer a physician’s orders
  • Failure to properly read and interpret laboratory results
  • Failure to accurately report significant changes in a patient’s condition
  • Failure to properly administer prescribed treatment
  • Failure to react to and challenge questionable order from a physician
  • Failure to properly monitor patient’s conditions
  • Failure to use medical equipment in proper manner
  • Failure to provide timely treatment to a patient in need
  • Failure to become knowledgeable in and use medical equipment in right manner
  • Failure to observe and report post-surgery complications or problems
  • Negligent credentialing, retention and supervision
  • Claims Relating to Surgical Error This is a very common form of medical negligence. Examples of surgical error are:
  • Leaving instruments such as clamps, scalpels, towels, retractors, scissors and sponges or other surgical equipment in the body following surgery
  • Nicking, cutting or cauterizing vessels or organs that are not being operated upon
  • Injuries relating to laparoscopic surgery
  • Performing surgery while impaired
  • Compressing nerves and/or blood vessels during surgery causing compartment syndrome and nerve or muscle damage
  • Operating on the wrong body part
  • Orthopedic surgery errors such as failure to properly take x-rays or read x-rays properly, failure to refer to subspecialists such as hand surgeons or foot surgeons, improper casting of bones, etc.

Spinal surgery errors

Some common injuries resulting from surgical errors relate to foreign fluids such as urine, bile, or feces that enter the abdominal cavity, through a cut intentionally made during surgery. This can lead to serious infections and sepsis, or septic shock, all of which in some instances can cause a patient’s death. These kinds of mistakes should never happen, but they do. Hospitals do not always have systems in place to prevent these types of surgical accidents or they may not properly implements what systems they do have.

Many cases of surgical negligence also occur as a result of poor post-operative care, including a failure to diagnose a complication or problem which develops from the surgery itself. My surgeons believe once the surgery it done it is done. May be so in spite of the fact a patient is bleeding,

Claims Which Arise From Post Surgery Infections or Other Infections Caused by Negligent Care

If an infection is not diagnosed and treated right away, it can lead to the bacteria taking over the body and causing a reaction in and damages to the vascular system. This can lead to very low blood pressure and lack of blood and oxygen to the major organs such as the brain heart, lungs, kidneys, liver and extremities.

Claims Relating to Failure to Diagnose or Misdiagnosis of Serious Medical Conditions

Diagnosing and treating an injury or ailment can be difficult, even when the correct treatment plan is administered. When medical professionals administer an improper treatment, the patient’s recovery may be further complicated and their health may be put at serious risk. At the very least, an incorrect treatment will delay the patient from getting the correct treatment. In the worst case scenarios, the new treatment plan could cause additional health complications and lead to serious injuries or even death. Misdiagnosis can also lead to the wrong drugs being prescribed

When an attorney evaluates a possible case of failure to diagnose or misdiagnosis, he or she should complete a full investigation of the medical records and the treatment timeline to determine exactly when a prudent physician exercising reasonable care should have diagnosed a disease or referred the patient to a specialist. This will help to determine whether there is a provable case.

More specific examples of failure to diagnose or misdiagnosis include the following:

Misdiagnosis of Cancer The failure to properly diagnose cancer can result in considerable pain and suffering and the need for extensive treatments that may not be necessary otherwise. It is important to determine not only that cancer is present but specifically what kind of cancer is involved. Successful recovery in this type of medical malpractice case requires evidence that an earlier diagnosis would have led to a significantly different and improved outcome from what actually occurred.

Fortunately medical providers and research specialists continue to make advancements in cancer diagnosis and treatment. There are now many effective options for treating almost all types of cancer. The fact these treatments are available, however, does not always mean they are implemented or if so, implemented correctly.

Common Misdiagnosis:

  • Misdiagnosis of stroke
  • Misdiagnosis of pulmonary embolism
  • Misdiagnosis of heart attack
  • Misdiagnosis of closed head injury
  • Misdiagnosis of diabetes
  • Misdiagnosis of tuberculosis
  • Misdiagnosis of spinal or bacterial meningitis
  • Misdiagnosis of appendicitis
  • Misdiagnosis of rectal or colorectal cancer
  • Misdiagnosis of mesothelioma
  • Misdiagnosis of diabetes
  • Misdiagnosis of metabolic syndrome

Claims Relating to Delayed Diagnosis of Serious Medical Conditions

Often times a medical condition or injury becomes more difficult to treat or address as time passes. It is critical that a proper medical diagnosis be made within a reasonable time period, so that the best treatment can be prescribed and administered.

Claims Relating to Failure to Administer Proper Treatment for a Disease or Medical Condition

Often times a physician may prescribe treatment for a patient, but fail to follow up with it and monitor the patient’s progress or to adjust or terminate the treatment when appropriate.

Claims Relating to Improper Selection and Administration of Anesthesia

Errors in the administration of anesthesia often times cause a high risk of injury to the patient during a surgical procedure. Anesthesia errors can lead to brain injuries, organ failures or other serious health problems. In some instances they lead to death by asphyxia or heart failure. Anesthesiologists must be fully advised and knowledgeable about all aspects of anesthesia to properly administer it. They must also be completely aware of the patient’s health condition and other medications being prescribed. Many say the anesthesiologist is the most important doctor in the operating room, since his or her orders can supersede those of the surgeon. It is a recommended procedure for a potential surgical candidate to interview and check the references not only of the surgeon, but also of the anesthesiologist to be used. The anesthesiologist’s responsibilities pertain not only to the operating room, but also to the recovery room, since it is not uncommon for patients to develop certain problems post-surgery.

Claims Relating to Plastic Surgeons

Plastic surgery has become a very profitable business in Arizona and throughout the United States. An increasing number of people are seeking cosmetic and plastic surgery. In the past, individuals to a large extent were required to accept their physical appearance and did not have the option to have it modified through surgery. Cosmetic and reconstructive surgery now make it possible for the appearance of men and women to be greatly improved or modified and more and more people are taking advantage of these procedures. Psychologically, plastic surgery can give good confidence and self-image boosts to a number of people.

Plastic surgery is usually an elective procedure and is used by many to fight off the aging process. It can also be used for reconstructive purposes after a person has been in an accident which has resulted in skin damage involving lacerations, abrasions and severe burns. This has led to an increase in the number of physicians undertaking this specialty. Not all of these surgeons, however, seek or are given an adequate amount of training. Unfortunately, this means that many of these physicians in practice do not have the experience and expertise necessary to successfully perform these delicate procedures. Examples of common surgeries are breast augmentation, breast reduction, tummy tucks, eye lifts, face lifts, liposuction and nose jobs.

Claims Relating to Failure to properly prescribe and administer the right medications

Prescribing and/or administering an incorrect medication

Prescribing and/or administering incorrect dosage of a medication

Claims Relating to Obstetrical/Gynecological Malpractice Resulting In Birth Injuries- Birth injury caused by delayed delivery, forceps and vacuum injury, hypoxia and other delivery complications

Claims Relating to Sexual Assault By Physicians

Sexual relations between a mental health professional and a client is one of the leading causes of tort litigation against mental heal professionals. Such sexual relations are strictly forbidden and may result in criminal liability as well as disciplinary action against the professional’s license. It seems unthinkable that a psychiatrist, psychologist or other mental health professional would consider taking advantage of a patient who comes to them because they are weak or vulnerable, but unfortunately it happens more than you think. The duty to refrain from sexual relations with a client in some instances may even extend to a period after treatment with the mental health professional concluded. There are several Arizona statutes relating to this subject. Claims relating to sexual assault by a physician in general are generally not covered by medical malpractice insurance.

Nursing malpractice

Nursing malpractice occurs when a nurse fails to adequately perform his or her medical duties and that failure harms the patient. Some of the most common examples of nursing malpractice are failure to follow physician’s orders in caring for patients or administering medications, failure to properly monitor and assess a patient’s condition and injuring a patient with medical equipment. Nurses are generally not popular targets in malpractice cases because if they are not covered by hospital insurance, their collectability is sometimes limited. Generally there is some greater sympathy for a nurse as well, since they are ordinarily dedicated and hardworking. There are many hospital insurance policies which do cover them, however, as agents and/or employees of the hospital so there are some cases where they are important defendants.

Nursing Home Negligence and Elder Abuse

Nursing home negligence/abuse may be like other medical malpractice claims, but depending on the facts, not necessarily. Arizona enjoys a strong and successful reputation as a retirement state, and thus there are many nursing homes housing many of our senior citizens. As a result the Arizona state legislature has added certain statutes to the law relating to nursing homes which when combined with the medical malpractice law provide significant protections for the elderly or dependent adults. The Arizona statutes say that families of patients who die as a result of negligent care in a nursing home can sue for damages for the pain and suffering experienced by the decedent before death. In all other types of wrongful death cases, the family cannot collect any damages for such pre-death pain and suffering. However, recovery for pain and suffering in a nursing home or elder abuse case is permitted. In determining whether problems exist, an attorney must carefully study the facility’s history of violations of both federal and state law to determine if there is a pattern of neglect. Staffing and training deficiencies can often be proven to be the underlying cause of nursing home injuries.

Nursing home abuse can also constitute elder abuse. It can also take a variety of other forms: Illegally taking, misusing or concealing funds, property or assets. Signs of elder abuse can frequently be subtle. Seniors who are being abused oftentimes fail to report it or are not physically able to do so. Unexplained injuries, bedsores, a broken hip or frequent falls can become reasons to suspect elder abuse or nursing home negligence. If these facts are present, it would be advisable to contact an attorney to discuss and explore pursuing a potential claim on the victim’s behalf.

Common Types of Injuries Caused by Medical Malpractice

In Arizona wrongful death is a specific type of medical malpractice claim. Arizona provides by statute that certain family members of someone who dies as a result of medical malpractice can recover for their losses as a result of the decedent’s wrongful death. The personal representative of the decedent’s estate can also bring a wrongful death claim, either on behalf of those family members or, if no survive the decedent, on behalf of the decedent’s estate. The purpose of the Arizona Wrongful Death Statute is to provide procedures for compensating survivors for the loss of the deceased. In such a claim, the plaintiff must still be able to prove the basic elements that there was a medical or hospital negligence, and that the negligence caused the death of the patient. However, the nature of the damages that can be recovered as a result of the death differ from other types of medical malpractice claims. The plaintiffs in any wrongful death case are the heirs of the decedent.

Revised Arizona Jury Instructions summarize the various damages that a statuory beneficiary may recover for wrongful death:

The loss of love, affection, companionship, care, protection, and guidance since the death and in the future:
The pain, grief, sorrow, anguish, stress, shock, and mental suffering already experienced, and reasonably probable to be experienced in the future.
The income and services that have already been lost as a result of the death, and that are reasonable probable to be lost in the future
The reasonable expenses of funeral and burial, and
And the reasonable expenses of necessary medical care and services for the injury that resulted in the death.
The Importance of An Autopsy or Medical Examiner’s Report Relating To Proof that Claimed Medical Malpractice Was Proximate Cause of Death

An autopsy is a comprehensive examination of a dead person by a physician. The physician who performs the examination is usually a pathologist whose objective is to determine exact cause of death.

This may be essential when proving a person’s death occurred as a result of medical error. Don’t necessarily want to rely on informal opinions which may even change as time passes or as other facts become known. Physician who once offered favorable opinion may later change and give some inaccurate or benign reason for death. You may discover that the cause of death you thought was so clear before is no longer the supported or supportable. In performing an autopsy, the physician examines all areas of the body to determine what contributed to or caused that person’s death. Securing an autopsy can be crucial to proving a wrongful death case. It can also establish evidence that the loved one did not die as a result of claimed wrongdoing.

An autopsy should definitely be strongly considered when death occurs outside of a hospital or clinical setting as in instances following discharge from a hospital, emergency department or clinic. It should also be strongly considered in the hospital setting when a death is unexpected or unusual.

At times there may be significant religious or personal reasons dictating against the autopsy, but all factors should be weighed and balanced so the parties don’t regret that they gave up their opportunity to gain important proof of negligence. The need to know the cause of death in successfully proving malpractice should be given considerable weight when making the decision. Ultimately it would be recommended an attorney be consulted to help make this decision, since he or she can help explain the procedural steps which will be controlling, if an autopsy is sought.

Claims Arising from Lack of Informed Consent

Lack of informed consent occurs when a physician fails to inform his or her patient about all of the risks and ramifications of a procedure before the procedure is done. Many states require written consent, what about Arizona. Whether a physician in Arizona has a duty to disclose a particular risk depends on the circumstances. It is a question of medical judgment and must be established by expert medical testimony. A good medical malpractice attorney should be able to review and evaluate the validity and/or enforceability of the informed consent document which may have been signed by the patient.

Claims Arising From Battery

Battery occurs when a physician performs or initiates a particular procedure or therapy to which the patient has not consented. Lack of consent and lack of informed consent are different issues. The critical issue in a battery claim is whether a patient gave consent. Consent defeats a batter claim, even if undisclosed complications occur.

 

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