THIS WEB SITE IS INTENDED TO PROVIDE GENERAL INFORMATION
TO CONSUMERS ABOUT ARIZONA MEDICAL MALPRACTICE AND PERSONAL INJURY ISSUES. IT IS NOT INTENDED TO BE A SUBSTITUTE FOR OBTAINING
LEGAL ADVICE FROM A QUALIFIED LAWYER ABOUT YOUR PARTICULAR SITUATION. YOU MUST ALWAYS DISCUSS YOUR SITUATION WITH A QUALIFIED
LAWYER TO BE CERTAIN THAT ALL LEGAL ISSUES APPLICABLE TO YOUR SITUATION ARE COMPLETELY AND PROPERLY EVALUATED TO PROTECT YOUR
RIGHTS.
What is the Statute of Limitations?
The Statute of Limitations is the body of law placing time limits on filing a lawsuit. Different types of cases have different
time limits. Failing to file suit within those time limits prevents the injured person from filing suit at all.
The time limit starts when a claim “accrues.” A claim accrues when a person knows, or should know, that he or
she has been injured by the wrongful act of another. Most medical malpractice claims accrue at the time of the negligent medical
treatment that causes the injury. Some, like failure to diagnose a disease or injury, accrue when a person suffers an injury
from the negligent treatment, even though this may be months or years after the medical negligence. Other claims arising out
of car accidents and dog bites arise on the date of the incident.
Arizona law requires suits involving bodily injuries, including most medical malpractice suits, to be filed within two years
of the date the claim accrues. The time limit can change, however, depending on who committed the negligent acts. For further
information about how the time limit can change, see “How do I make a claim against state or local government?”
and “How do I make a claim against the federal government?”
The most important thing to remember about the Statute of Limitations is that time is of the essence. Discuss your case with
a lawyer as soon as you even suspect you may have been injured by any negligent act so that the lawyer can help you determine
which statute of limitations applies to your case and that you take all actions necessary to protect your right to make the
claim.
How do I make a claim against state or local
government?
If any part of an injury was potentially caused by an Arizona state or local government, including government employees, Arizona
law requires the injured person to give written notice of the potential claim to the government agency and the responsible
employees within 180 days of the date the claim accrues. For more information about when a claim accrues, see “What
is the Statute of Limitations?” Failure to file an appropriate notice of claim within 180 days or with the proper parties
will prevent the injured person from filing a lawsuit against any parties who do not receive the notice of claim.
The government or government employee has 60 days from the date on which they receive the written notice of claim to take
action on the claim. After 60 days, the injured person can file a lawsuit against the government and any employees who received
notice of claim. Arizona law requires the lawsuit to be filed no later than one year from the date on which the claim accrues.
The most important thing to remember about making a claim against state or local government in Arizona is that the time to
do so is extremely short. Discuss your case with a lawyer as soon as you even suspect you may have been injured by any negligent
act of a state or local government or its employees so that the lawyer can help you to identify the proper agencies and people
who must receive notice of your claim and to make the claim in a proper manner.
How do I make a claim against the federal government?
Claims for injuries caused by the negligence of the federal government or federal employees are allowed by a federal law called
the Federal Tort Claims Act or FTCA. The FTCA permits certain claims for injuries caused by the federal government or its
employees and prohibits other claims. The FTCA requires the injured person to file written notice of claim with the
negligent federal agency on a special government form within two years of the date the claim accrues. For more information
on when a claim accrues, see “What is the Statute of Limitations?” Failure to properly file a notice of claim
against the negligent federal agency within two years prevents the injured party from filing suit against the federal government.
The FTCA does not permit an injured person to sue a federal employee directly for the employee’s negligent acts committed
while working on behalf of the federal agency.
The FTCA gives a federal agency served with notice of claim six months to take action on the claim. If the agency does not
take action within six months or denies the claim, the injured party can file a lawsuit, in United States District Court,
against the agency. The FTCA provides special rules for deciding the case in court.
The most important things to remember about the making a claim against the federal government is that the time to do so is
limited and the rules regulating the claim are technical and have to be followed exactly or the injured person can lose the
right to make the claim. Discuss your case with a lawyer as soon as you even suspect you may have been injured by any negligent
act of the federal government or its employees so that the lawyer can help you to identify the proper agencies that must receive
notice of your claim and to make the claim in a proper manner.
What is medical malpractice?
A doctor commits medical malpractice by negligently providing medical services when that negligence causes or contributes
to injuring the patient.
The injured party must first prove that the health care provider fell below the standard of care for similar health care providers
in Arizona. That means the health care provider failed to act as a reasonable and prudent health care provider in Arizona
would under similar circumstances. The health care provider can fall below the standard of care by doing an act that is wrong
under the circumstances, for example providing the wrong treatment for an illness or injury; or by failing to act when action
was necessary, like failing to properly diagnose a disease or injury.
The injured patient must then prove that the health care provider’s breach of the standard of care was a cause of significant
injury to the patient. The health care provider’s error does not have to be the only cause of the injury, it only must
contribute to it. For example, a doctor who fails to diagnose cancer in a patient does not cause the cancer, but the doctor
can still be liable for malpractice because the delay in dealing with the cancer caused by the failure to diagnose it may
lead to a significantly higher risk of death from the cancer than had it been diagnosed and treated properly.
Determining whether a health care provider may be liable for medical malpractice requires a mix of legal and medical evaluations.
You should consult with a qualified lawyer if you suspect you have been the victim of medical malpractice so that the lawyer
can thoroughly and properly evaluate the legal and medical issues involved in your particular situation. For more information
about case evaluation, see “How does the Mercaldo Law Firm evaluate my medical malpractice case?”
What damages can be recovered for medical
malpractice?
There are several items of damages that can be recovered in medical malpractice cases. The medical expenses for treating the
injuries caused by the malpractice can be recovered. This claim can include medical expenses the injured patient can prove
will be reasonably necessary to treat the injury caused by the malpractice in the future. The jury can consider whether
the injured patient has health insurance and any payments made by a health insurer or government benefits and any claims a
health insurer or the government may have to reimbursement for payments made for treatment made necessary by the malpractice.
For more information on claims by health insurers for reimbursement, see ”Do I have to pay my insurance company back
out of a recovery for medical malpractice?” and “Do I have to pay back government benefits paid to me because
of an injury?”
Arizona law also permits recovery of lost income. An injured patient can recover money to replace income they would have earned
at their job or business if the health care provider had not injured them. This claim can include income the injured patient
can prove will probably be lost in the future because of the injuries caused by the malpractice. The jury can consider
any insurance or government benefits paid for this loss as well.
A related damage is lost earning capacity. The jury can award damages if the injured patient can prove he or she is less able
to earn a living because of the negligently caused injuries. For example, a carpenter who loses the use of one of his legs
will be less likely to be able to obtain employment in the construction industry, because he will not be as able to perform
the heavy labor required of carpenters than a normally healthy person. The injured carpenter may be able to obtain other employment
that allows him to earn almost as much as he did when he was a carpenter, however, the jury can award him damages because
he will have more trouble finding work because of his injuries.
An injured patient can also recover damages for pain and suffering. This damage is designed to compensate the injured patient
for having to endure the pain and suffering from the injury caused by the health car provider’s negligence. This damage
can be awarded for pain and suffering already endured and for that pain and suffering the injured patient can prove is reasonably
likely to be suffered in the future.
Disfigurement and disability are damages related to pain and suffering. The jury can award damages for the anguish of a disfiguring
injury, both past and future and for a disabling injury. Damages for disfigurement and disability are to compensate for the
physical and emotional distress caused by disfigurement or disability.
Damages for pain, suffering, disability and disfigurement are assessed in light of the nature, extent and length of time the
injury lasts. These damages usually account for the majority of damages an injured person recovers.
Sometimes a person is so severely injured that he or she cannot care for and support loved ones the way he or she did before
the injury. In appropriate circumstances, Arizona law permits damages to be recovered by spouses, children and parents of
negligently injured people for the loss of the love, care, affection, companionship and other pleasures of the family relationship
that are lost because of the injury. For example, a minor child whose mother is disabled suffers a significant loss
because the mother’s disability prevents her from being actively involved in raising the child. The child in that case
can recover damages to compensate for that loss.
Determining which damages a person injured by medical malpractice may recover requires a careful examination of the facts,
and the legal and medical issues involved in each case. You should consult with a qualified lawyer if you suspect you have
been the victim of medical malpractice so that the lawyer can thoroughly and properly evaluate which damages you may be entitled
to recover in your particular situation. For information about damages for death caused by medical malpractice, see “Can
anything be recovered if medical practice causes the patient to die?”
Can anything be recovered if medical practice
causes the patient to die?
Arizona law provides that certain family members can recover damages for the death of a loved-one that is caused by the wrong
of another. The wrongful death statutes permit the spouse, parents and children of the person who died to recover damages
for the death.
Arizona law permits the survivors to recover reasonable expenses of burial and medical expenses for the death causing injury
or illness. The jury can consider any insurance or government benefit payments that have been made for these expenses when
they award these damages along with any claims the insurance companies make for reimbursement of those payments. For more
information on claims by insurers and the government for reimbursement, see ”Do I have to pay my insurance company back
out of a recovery for medical malpractice?” and “Do I have to pay back government benefits paid to me because
of an injury?”
Arizona law permits the survivors to collect the income that the person who died would have earned to support them. Lost income,
however, does not include that part of the money the person who dies would have earned to support himself or herself. The
jury can consider any insurance or government benefits paid to survivors in assessing this damage. For more information
on claims by insurers and government benefits for reimbursement, see ”Do I have to pay my insurance company back out
of a recovery for medical malpractice?” and “Do I have to pay back government benefits paid to me because of an
injury?”
Arizona’s wrongful death statutes permit the survivors to recover for their grief, sorrow and suffering resulting from
the loss of a loved-one. This type of damage compensates both past and future emotional suffering.
The survivors can also recover damages for the loss of the love, care, affection, companionship and other pleasures of the
family relationship that are lost because of the death of a loved-one. For example, a surviving spouse suffers a significant
loss from the death of a spouse because that person is no longer there to share the joys and burdens of raising a family and
living a life together.
The wrongful death statutes have special rules for who can file suit for wrongful death, how that suit must be filed, and
how any money recovered can be distributed to the survivors. You should contact a qualified lawyer if you believe you lost
a loved-one because of the wrongful act of another.
How does the Wiggins Law Firm evaluate
my case?
When you call the Wiggins Law Firm to seek advice on any case involving personal injury, you will speak directly with Mr.
Wiggins. He will discuss the important facts of your situation to determine whether it is a case that the he can help you
with or whether other lawyers or agencies would more appropriately deal with your situation. Given the Mr. Wiggins’s
commitment to place all of his firm’s resources into each injury case it takes, many potential cases are declined at
this point. Mr. Wiggins is always willing to recommend other capable lawyers for cases that he declines.
If the case is one in which Mr. Wiggins might be able to help, an appointment is set for you to meet with him and John Murphy,
his legal assistant to discuss the situation in more detail and to review any information you have already gathered about
your potential case. During that meeting you will discuss medical and legal issues that might be involved in your situation
and the fees and costs involved in pursuing your case. If you and Mr. Wiggins agree that the case merits further investigation,
you will usually be asked to sign a retainer agreement at this meeting.
In general personal injury cases, including car accidents, dog bites and similar cases, the Firm will obtain reports from
investigating agencies, interview witnesses, examine the scene and obtain any other information relevant to proving that the
person who injured you was negligent. We will stay in touch with you and gather your medical records and bills to evaluate
your treatment. Mr. Wiggins will meet with your doctors when necessary to properly evaluate your injuries and any long-term
effects of those injuries on your ability to work or to live your normal life. We will also gather information from
your employer to prove the amount of income you lost as a result of your accident. Because of the extremely adversarial positions
taken by most insurance carriers today, the Firm will only take cases it is willing to litigate and take to trial if necessary.
If your potential case is a medical malpractice case, one of the most important steps in evaluating a potential case is gathering
medical records relevant to the treatment that might be negligent. This step can take anywhere from a few days if you
have few relevant records and you decide to collect them, to several weeks if there are many records and Mr. Wiggins orders
them. No medical malpractice case can be pursued without reviewing the relevant records.
Once all of the records are gathered, Mr. Wiggins will have a nurse-paralegal perform the medical review of the case. The
nurse reviews the record thoroughly, researches appropriate medical literature, and draws some preliminary conclusions about
what acts, if any, might have been medical malpractice. The nurse also will begin a preliminary evaluation of the damages
caused by the malpractice.
The nurse-paralegal and Mr. Wiggins will meet to evaluate the case. They will review the medical records and discuss these
issues in some detail and reach a consensus about whether the case merits review by expert witnesses of the negligent health
care provider’s specialty to determine whether the injuries were caused by medical negligence. We will then discuss
our evaluation and recommendations with you and obtain your authorization for any expert consultations we recommend. This
evaluation meeting usually costs you nothing. Some cases are declined at this time because of the Mr. Wiggins’s commitment
to his clients injured by medical malpractice.
The Firm then submits the cases meriting further review to qualified medical experts for their opinions on the questioned
care and on the cause of the injuries. These experts usually require payment. The Firm will usually advance payment of the
expert fees for this review, but that expense ultimately remains the client’s responsibility. We will then inform you
of the expert’s opinions. If the experts are willing to testify that the health care provider fell below the standard
of care and that medical negligence caused the damages, we will usually recommend that litigation proceed.
Once a lawsuit has been filed on your behalf, the Wiggins Law Offices will apply all of its resources to pursue your case
vigorously to conclusion. We will normally advance all funds necessary to prosecute the case.
Do I have to pay my insurance company back
out of a recovery for personal injuries?
Arizona law establishes that you do not have to pay an insurance company for benefits it pays under your insurance policy
because of the wrongful act of another. There are two exceptions to this rule in Arizona. First, medical payments benefits
paid to you by an automobile insurance carrier that later pays you benefits under uninsured or under-insured motorist coverages
can be credited against those uninsured or under-insured benefits in certain cases. Similarly, medical payments benefits in
excess of $5,000.00 may also be recovered. Second, workman’s compensation benefits paid on account of an on-the-job
injury must be repaid out of any recovery you receive from the person who hurt you.
If the policy of insurance is properly issued under a federal law governing employee benefits, the insurer may have a right
to reimbursement from any recovery you receive for your injuries. The federal law that permits an insurance company to recover
benefits paid is complicated and the policy must comply with all requirements of that federal law before the insurer can attempt
to recover benefits paid to you. This federal law applies in place of Arizona law if the insurer complies with the federal
requirements.
You should always consult with a qualified lawyer before signing anything in which you agree to reimburse an insurer for benefits
paid under your policy.
Do I have to pay back government benefits
paid to me because of an injury?
Each government benefit is distributed under its own particular rules and laws. As a result, some benefits must be repaid
if you recover damages from a person who injured you, and others do not have to be repaid. The following discussion will highlight
some common government benefits for payment of medical expenses or disability income. The rules may be different for other
types of benefits. You should consult with a qualified lawyer to determine your rights regarding any benefits you receive
when you recover damages for bodily injuries.
Arizona Health Care Cost Containment System (AHCCCS). AHCCCS is Arizona’s equivalent of the Medicaid program in other
states. The state and the counties participate in paying medical expenses for indigent people under this program. AHCCCS also
covers some disabled people. State law gives AHCCCS and the county health care agency a lien against the proceeds of any recovery
for bodily injuries only to the extent that the AHCCCS system paid for medical expenses made necessary by that bodily injury.
Medicare
and medi-gap insurance. Medicare is a health care program for people 65 and older. Medicare also covers some disabled people.
Medi-gap insurance is insurance Medicare recipients can purchase to fill gaps in coverage in the Medicare program. Federal
law gives Medicare and medi-gap insurers a lien against the proceeds of any recovery for bodily injuries only to the extent
that Medicare and medi-gap paid for medical expenses made necessary for that bodily injuries. Medicare and medi-gap insurers
do not have to file the lien to make it effective.
Social Security Benefits. Neither death nor disability benefits paid by Social Security have any lien for repayment that can
be enforced against the proceeds of a recovery for bodily injuries. These benefits are based solely on the payroll taxes paid
by a worker and the worker’s employer and are paid regardless of the financial status of the beneficiaries.
The medical care liens for AHCCCS, Medicare and medi-gap insurance are controlled by complicated laws and rules. The agencies
administering these programs will sometimes reduce their lien claims in appropriate cases. The agencies may also mistakenly
claim liens for medical expenses that are not related to the bodily injuries for which you recover money. You should always
consult with a competent lawyer to make sure that a lien applies to your particular situation and that you pay only as much
as the law or the agency requires to satisfy the lien.
