Arizona Medical Malpractice Summary

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Statutes of Limitations

In Arizona, a medical malpractice action must be commenced within two years after the cause of action accrues. Ariz. Rev. Stat. Ann. § 12-542 (West 1992). A leading Arizona case (decided under a prior statute) held that the limitations period did not begin to run until the manifestation of the injury. DeBoer v. Brown, 138 Ariz. 168, 673 P.2d 912 (1983). A discovery rule is now routinely applied in other types of cases arising under the current two-year statute. E.g., Commercial Union Insurance Co. v. Lewis & Roca, 183 Ariz. 250, 902 P.2d 1354 (Ct. App. 1995). The statute of limitations is tolled if a claimant is under eighteen years of age, mentally incompetent, or imprisoned. Ariz. Rev. Stat. Ann. § 12-502 (West 1992 & Supp. 1997).

Wrongful death claims accrue at the date of death and must be brought within two years therefrom. Ariz. Rev. Stat. Ann. § 12-542 (West 1992); Rogers v. Smith Kline & French Laboratories, 5 Ariz. App. 553, 429 P.2d 4 (1967).

Contributory or Comparative Negligence

Arizona adheres to a pure form of comparative negligence. Ariz. Rev. Stat. Ann. § 12-2505 (West 1994 & Supp. 1997). A claimant’s award is diminished in proportion to the claimant’s relative degree of fault, but the claimant’s fault generally will not act as a bar to recovery. Id. However, a trier of fact may bar recovery if the claimant wilfully or wantonly caused or contributed to the death or injury. Id.

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. Ariz. Rev. Stat. Ann. § 12-2506 (West 1994 & Supp. 1997).

Contribution

The Arizona Supreme Court has held that under Ariz. Rev. Stat. Ann. § 12-2506, which almost completely abolishes joint and several liability, there is no right of contribution where a settling defendant’s liability is several only; however, in those limited situations in which joint liability survives, contribution is still available. PAM Transport v. Freightliner Corp. 182 Ariz. 132, 893 P.2d 1295 (1995).

Vicarious Liability

Arizona courts have recognized the principle of ostensible or apparent agency in the hospital-physician context. See Gregg v. National Medical Health Care Services, 145 Ariz. 51, 699 P.2d 925 (1985); Barrett v. Samaritan Health Services, 153 Ariz. 138, 735 P.2d 460 (Ct. App. 1987).

Expert Testimony

Expert testimony is generally required in order to establish a breach of the standard of care, unless the alleged negligence is grossly apparent, Barrett v. Samaritan Health Services, 153 Ariz. 138, 735 P.2d 460 (Ct. App. 1987), or comes within the common knowledge of laymen. Peacock v. Samaritan Health Services, 159 Ariz. 123, 765 P.2d 525 (Ct. App. 1988).

Damage Caps

Arizona does not place a cap on the amount of damages recoverable in a medical malpractice action. Article 2, § 31 of the Arizona constitution prohibits the enactment of any law limiting the damages one may recover for personal injury or death.

Statutory Cap on Attorneys’ Fees

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

Periodic Payments

An Arizona statute provides that any party to a medical malpractice action may elect to receive or pay future damages periodically. Ariz. Rev. Stat. Ann. §§ 12-582 to 12-594 (West Supp. 1997). However, the Arizona Supreme Court has held this statute to be an unconstitutional infringement of article 2, § 31 of the Arizona Constitution. Smith v. Myers, 181 Ariz. 11, 887 P.2d 541 (1994).

Collateral Source Rule

In Arizona, a defendant may elect to introduce evidence of the claimant’s receipt of collateral payments, such as disability benefits. Ariz. Rev. Stat. Ann. § 12-565 (West Supp. 1997). If the defendant elects to introduce such evidence, however, the plaintiff may then offer evidence of payments made for the collateral benefits. Id. The trier of fact is charged with the responsibility of weighing the collateral source evidence in its calculation of damages. Id.

Pre-Judgment Interest

Pre-judgment interest is available to personal injury claimants only when the damages were subject to exact computation prior to verdict. Duncan v. State, 157 Ariz. 56, 754 P.2d 1160 (Ariz. Ct. App. 1988). In Duncan, the court held that non- economic damages are not subject to exact computation prior to verdict and that, therefore, pre-judgment interest thereon is not appropriate. Id. Thus, pre-judgment interest is not allowed with respect to non-economic damages, but it remains unclear whether pre-judgment interest is available with respect to economic damages.

Patient Compensation Funds and Physician Insurance

Arizona does not have a patient compensation fund or a program of state-sponsored liability insurance for physicians.

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).

Arbitration

Arizona law does not mandate the reference of a medical malpractice action to an arbitrator.

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Revision Date: February 6, 1998