If you live in Arizona and you're thinking about suing a health care professional or facility over medical malpractice, you have a lot to think about. These cases are notoriously complicated, so you’ll almost certainly need to find a qualified medical malpractice attorney to represent you and handle all of the details. Even so, you should have a basic understanding of the process. This article gives you an overview of the most important rules in Arizona for medical malpractice cases, including:
A “statute of limitations” is a law that sets a deadline for filing a lawsuit in court. In Arizona, the statute of limitations for medical malpractice cases is two years “after the cause of action accrues” (Ariz. Rev. Stat. § 12-542(1) (2021)). Usually, this means that the facts justifying the lawsuit happened when the plaintiff (the person suing) sustained an injury as a result of the defendant health care provider’s alleged medical negligence.
However, Arizona courts have consistently applied what’s known as the “discovery rule” in medical malpractices cases. Under this rule, the two-year statute of limitations begins when plaintiffs knew (or should have known with the exercise of “reasonable diligence”) that their injuries were caused by medical negligence.
Of course, it’s not always clear when a patient who is experiencing some harm after medical care should know that a health care provider’s negligence was the reason for that injury—or at least, in the words of the Arizona Supreme Court, should be “on notice” to investigate that possibility (Walk v. Ring, 44 P.3d 990 (Ariz. Sup. Ct. 2002)). This could happen as soon as the patient experiences an unexpected negative outcome after medical treatment.
So if you file a medical malpractice more than two years after you received the medical care or diagnosis that apparently caused your injuries, the defendant will probably ask to have your case dismissed. Then it will be up to the judge (or the jury) to look closely at the facts and decide whether you waited too long. If you want to avoid that uncertainty—and the potential for having your case thrown out—you should consult a lawyer as soon as you have any suspicion that you’ve suffered from medical malpractice.
In Arizona, the two-year period for filing a medical malpractice lawsuit is “tolled” (legalese for paused) under certain circumstances, including:
(Ariz. Rev. Stat. §§ 12-501, 12-502 (2021).)
When you file a medical malpractice lawsuit in Arizona, you (or your lawyer) must attach a certification stating whether testimony from a medical expert will be necessary to prove the defendant’s negligence.
If the certification indicates that the testimony will be necessary, you or your attorney will then need to submit at least one preliminary affidavit from a qualified medical expert witness that includes the expert’s opinion as to the defendant health care provider’s actions, mistakes, or omissions that violated the appropriate standard of care, as well as how those actions or inactions caused your injuries and other damages. The affidavit must be filed and served on the defendant no later than 30 days after the defendant filed a response to your complaint (the initial document that starts the lawsuit).
If the certification says that expert testimony is not required, the defendant may ask the judge to order you to submit an expert affidavit before your lawsuit may proceed. The judge will then decide if the affidavit is necessary and, if so, issue the order.
If you don’t file the expert opinion affidavit (after certifying that it’s necessary or after being ordered to submit one), the judge will dismiss your lawsuit “without prejudice.” That means that you could start all over and file a new lawsuit based on the same alleged malpractice, as long as the time to do so hasn’t run out. (Ariz. Rev. Stat. § 12-2603 (2021).)
Some states place a cap on the amount of the damages that plaintiffs may collect in medical malpractice cases. Arizona is not one of those states. In fact, Arizona's state constitution specifically prohibits any limits on damages in civil cases for personal injury (Ariz. Const., art. II, § 31).
In some medical malpractice cases, the plaintiffs may be partially to blame for some of their damages even if the defendant’s negligence caused their injuries in the first place. For instance, this could happen if a patient didn’t follow a doctor’s instructions after surgery, which worsened the medical condition caused by the doctor’s negligence during the operation.
In this type of situation, Arizona follows what’s known as the “pure comparative negligence” rule to split up liability for the damages. Under this rule, if the jury finds that the defendant committed medical malpractice but that you were partly at fault for your losses, your award would be reduced in proportion to your share of the blame. So, for example, if the jury awarded you $100,000 in damages but found that you were 20% at fault, you would receive $80,000. (Ariz. Rev. Stat. § 12-2505 (2021).)