Common Types of Medical Malpractice Claims in Phoenix
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.
Claims Relating to Hospital Negligence:
- 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.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.Claims Which Arise From Post Surgery Infections or Other Infections Caused by Negligent CareClaims Relating to Failure to Diagnose or Misdiagnosis of Serious Medical ConditionsWhen 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. 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.Common Misdiagnosis:
- 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.
- More specific examples of failure to diagnose or misdiagnosis include the following:
- 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
- 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.
- 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,
- Spinal Surgery Errors
- 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 syndromeOften 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.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.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.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.Claims Relating to Failure to properly prescribe and administer the right medicationsPrescribing and/or administering incorrect dosage of a medicationClaims Relating to Sexual Assault By PhysiciansNursing MalpracticeNursing Home Negligence and Elder AbuseNursing 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.Claims Arising from Lack of Informed ConsentClaims Arising From
- 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.
- 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.
- 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 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.
- 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.
- 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
- Prescribing and/or administering an incorrect medication
- 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 Plastic Surgeons
- Claims Relating to Improper Selection and Administration of Anesthesia
- Claims Relating to Failure to Administer Proper Treatment for a Disease or Medical Condition
- Claims Relating to Delayed Diagnosis of Serious Medical Conditions
Medical Malpractice Relating to Mental Health Professionals
Mental health professionals are subject to malpractice liability for their errors and omissions the same as any other health care provider. The Arizona Medical Malpractice Act requires proof that the health care provider failed to exercise that degree of care, skill, and learning expected of a reasonable, prudent health care provider in the discipline or class to which he or she belongs within the state acting in the same or similar circumstances. In addition, the provider’s failure to follow the accepted standard of care must be the proximate cause of the injuries. There are seven main groups of mental health professionals recognized under Arizona law: psychiatrists, psychiatric nurses, psychologists, social workers counselors, marriage and family therapists and substance abuse counselors.
Twelve Things A Prospective Client You Should Consider About Attorney Contingency Fee Agreements In Arizona
- Clients should understand what a contingency fee is. Generally defined, in Arizona it is a fee for services provided where the fee is payable only if there is a favorable result for the client. It is usually calculated as a percentage of the client’s gross recovery. The client is usually responsible for the costs of pursuit of the claim (administrative costs, court costs, expert witness costs, etc.), but these are often advanced on behalf of the client by the attorney and recouped at the time of settlement of the case.
- Contingency fee agreements can make sense in many cases for both the client and the attorney. A lot of people in our society are not able to afford to pay what they consider to be attorney’s expensive fees (Usual hourly fees), but they may well have valid legal claims. Having legal fees and costs assumed by the plaintiff’s attorney in exchange for a piece of the ultimate verdict or settlement is one way in which they can fund their prospective litigation. Contingency fees also in most instances provide a powerful motivation to the attorney to work hard and diligently on the client’s case. The other justification for contingency fee agreements is that the average prospective claimant, if they are attempting to represent their own interests, does not have the legal training or resources to pursue a claim on their own. They usually do not have the knowledge and experience to place a value on their claim or if they are working with an attorney on an hourly fee basis, to be able to evaluate their attorneys worth or ethics in the pursuit of the case. The contingency fee case in many cases can help to instill honesty in their dealings.
- There are certain types of cases which lend themselves well to contingency fee agreements. Others do not. They are most commonly used in personal injury and medical malpractice claims. Over the last few decades, use of contingency fees has expanded into other types of cases; commercial collections, business litigation, civil rights claims, employment claims and intellectual property claims. Contingency fee agreements are, of course, not offered in criminal, divorce or bankruptcy proceedings. Most injury cases are handled on a contingent fee ranging from 33% to 35%, plus litigation costs. Medical malpractice cases are usually handled on a 40% basis. Some attorneys will use a sliding scale for the fee which means that if the case is resolved before litigation, the fee may be lower but if the case goes all the way to trial, it will be higher. When choosing an attorney, the fee percentage should be considered, but it is not always the most important consideration. A prospective client should also make inquiry concerning an attorney’s expertise, trial experience and proven results.
- Arizona has statutes and Professional Rules of Ethics which prevent attorneys from overreaching in their implementation of contingency fee terms. Regardless of the terms of the agreement, if there appear to be significant injustices to clients in any specific case, a right of review remains to assure fee is ultimately reasonable. A.R.S. 12-568, Matter of Swartz, 141 Ariz. 266, 686 P.2d 1236 (1984) and AZ-ER 1.5(a).With respect to AZ-ER 1.5(a), the Rule out the following factors that are to be considered in gauging the reasonableness of a lawyer’s fee:
(a) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
(b) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(c) the fee customarily charged in the locality for similar legal services;
(d) the amount involved and the results obtained;
(e) the time limitations imposed by the client or by the circumstances;
(f) the nature and length of the professional relationship with the client;
(g) the experience, reputation, and ability of the lawyer or lawyers performing the service; and
(h) whether the fee is fixed or contingent
- The standard fee in most personal injury cases is 33 1/3, In medical malpractice cases, the standard is 40%. There are discount lawyers who charge less, but those contracts often have escalator clauses — 25% if it settles on demand, 30% if a complaint is filed, 40% if the case is tried, 45% if an appeal is taken, etc. Such provisions often create conflicts and even problems. To a large extent, many of the discount attorneys are more interested in turning a profit than fight for best interests of their clients. Therefore prospective clients should be cautious of increasing percentage contracts to make sure they are not being played by the attorney to potentially give up more of their recovery than they should. Such fee agreements are clearly ethical and in some cases justified, but their implementation must ultimately be fair.
- Any attorney’s decision concerning whether to handle a case on a contingency fee basis should be based on the merits of the case and the overall economic circumstances present in the case. An attorney should evaluate the likelihood of victory on liability issues and determine whether, if successful, the claimed damages justify the economic risks. In many contingency fee cases, clients are asked to pay and even advance costs so that the client has some skin in the game. This also makes the attorney more willing to take risks in representation that he or she might not take otherwise. It puts some control or limit on the potential financial losses an attorney might take of his or her time and money invested if the case ends up going south. Some of the most dedicated professional in the legal profession work on contingency fees and show great dedication and perseverance in pursuing their clients’ causes.
- If the prospective client is asking the attorney to explore untested legal issues or test out the nuances of existing case law, it will be difficult to get an attorney to consider taking the case on a contingency fee basis. In these types of cases, clients are generally asked to advance all costs and attorneys, unless they have their own personal reasons for committing or agree to bill at an hourly rate, generally will refuse representation.
- If an attorney agrees to take a case on a contingency fee basis, he or she must keep the client informed of all developments to make sure the claim remains worthy of pursuit. If not, the attorney may help you gain an early dismissal to reduce the risk of the case turning on you. Sometimes if the case starts developing badly, the attorney may decide to file a motion to withdraw. If this occurs, you may want to revisit your decision to proceed. An attorney under most state professional ethics codes is not required to pursue a case where the client is being unreasonable. In Arizona under the Rules of the Supreme Court, Regulation of Practice, E.R. 1.16 certain rules are set up which can become the basis for an attorney’s withdrawal. If representation is terminated, the attorney must follow certain steps set forth in these rules to make certain the client’s interests are properly protected.
- In deciding whether to undertake contingency fee representation in a case, attorneys may highly selective concerning the character and integrity of the client since both of those qualities will be scrutinized by opposing parties, opposing counsel and ultimately the judge and jury if the case ends up being tried.
- Prospective clients should not hire attorneys on a contingency fee basis who are inexperienced in handling the type claim being pursued. This can backfire severely with potential cost assessments or sanctions being levied by the court against the plaintiff, counterclaims being filed and possibly even abuse of process claims being pursued if the case ends up being dismissed for lack of merit or because the attorney is inexperienced.
- If you plan to or have retained an attorney to replace a former attorney, make certain you have the new attorney explore whether there are attorney and cost liens existing from the former attorney which could undercut your recovery and that of the current attorney. Your current attorney should also be fully aware of and keep you posted regarding any other liens and their possible effect on the economics of the case.
- Any settlements or awards should be paid through your attorney’s trust account in order to ensure accurate accounting regarding your recovery, costs and the attorney’s fees. The best practice is to review a proposed Settlement Breakdown Statement prior to authorizing the settlement to eliminate possible misunderstandings. Paying the settlement through his or her Trust Account will oftentimes avoid unnecessary disputes which could result in Bar Complaints or further law suits.
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Medical malpractice cases can be very complicated and expensive and prosecution of a claim requires a team of experienced professionals. The Law Offices of William D. Black is committed to helping our clients rebuild their lives if they have been victimized by malpractice. We have the knowledge, experience, and financial resources needed to successfully pursue medical negligence cases. If a medical provider has committed malpractice and you or a loved one have been seriously injured as a result thereof, we can build a strong and persuasive case on your behalf and get you the award or settlement to which you are entitled.
The fact that a medical procedure has a bad outcome does not necessarily indicate that medical malpractice caused the result. But when a personal injury or wrongful death occurs because of ignorance, negligence, or improper use of method and practice, the victim or the victim’s family deserves answers. Our attorneys at The Law Offices of William D. Black work diligently to obtain those answers, reasonable compensation, and ultimately justice.
If you believe you or a loved one are the victim of malpractice and have suffered significant injuries and damages relating thereto, please contact the Law Offices of William D. Black. If the facts justify it, we will review your medical records to determine if there is a provable case and if it is economically feasible to proceed. We have qualified medical personnel on staff. For a consultation with a Phoenix, Arizona medical malpractice lawyer at the Law Offices of William D. Black, call 602-265-2600, 844-224-0054 or contact us online.