Filing and Pursuing A Medical Malpractice Case in Arizona
Filing and pursuing a medical malpractice case in Arizona is no easy task. Here are important steps in the process.
A. Pre-law suit presentation of claim to medical provider’s malpractice carrier
Very few medical malpractice cases can be resolved without a law suit being filed. In fact many attorneys do not believe it is productive to send Demand Letters ahead of filing suit. There are several reasons for this. First, even when the injured party has a strong claim, the medical provider and his or her insurance attorney will test out the claimant to see if they are serious about proceeding and also to see whether they will hire a competent attorney and retain the necessary experts to prove the case. Second, many medical malpractice insurance policies require that the medical provider give his or her or its consent prior to agreeing to any settlement. There are many cases where the malpractice may be quite evident, but the provider does not wish to consent because of the serious impact that a finding of negligence might have on his or her professional reputation and further insurance coverage. Third, even if the injured party retains counsel, medical provider who was negligent and his insurance attorney may believe that the injured party and his attorney will not have the necessary financial strength or endurance to pay for costly litigation. There are other reasons, as well, but these are the most compelling.
B. The filing and pursuit of the medical malpractice law suit in Arizona
If the attorney reviews the underlying facts and believes there is provable negligence which caused the damages and these damages are significant, he or she can then enlist the appropriate expert witnesses to assure that the can substantiate the claim. If so, the attorney for the injured part files a lawsuit, usually in the Superior Court for the county in which the incident occurred. In a limited number of cases, the case might be initiated in the Federal District Court, but this is rare. Once the law suit is filed and served on the defendant(s), the defendants respond by filing an answer which almost always denies the plaintiff’s allegations. The parties then are required to exchange all pertinent information and records through a process called discovery. Discovery usually entails exchange of interrogatories (written questions which must be responded to), exchange of requests for documents and response thereto and depositions) Most Superior Court judges require that once discovery has been conducted, a mandatory settlement conference or mediation hearing take place to determine if the case can be resolved without proceeding through a trial. If the case cannot be settled on negotiated terms, it will proceed to trial.
If the case is tried, the plaintiff has the burden of proof to prove by a preponderance of evidence all the elements entitling him or her to an award of damages. At trial, both parties (or all parties if there are multiple plaintiffs and/or defendants) will present experts to testify as to the standard of care required, whether this standard was breached, whether this breach caused the injuries and damages alleged and what these injuries and damages were. The fact-finder (judge or jury) must then weigh all the evidence and determine which side is the most credible. The verdict or decision of the Court, if a jury is waived, will then be reduced to a judgment. The losing party may move for a new trial, but must have convincing evidence that there was prejudicial error during the trial. Either party may also appeal, if they lose the case, but the chances of success on appeal, unless there is grievous error, are generally not good.