Zachar Law Blog

What does negligence mean in a personal injury case?

Negligence has different meanings for different people but has a specific meaning in the law and as such is considered a term of art for the legal profession.  At its core, it is uniquely defined as a series of elements of proof:  (1) Duty; (2) Breach of duty; (3) Causation; and (4) Damages.  Each element must be factually proven.  Did an alleged wrongdoer have a duty to act or not act in a certain way?  Did the alleged wrongdoer fail to act or not act in that way?  Did the alleged wrongdoer’s actions or failure to act cause a victim injury or damages?  If the answer is yes to each, the alleged wrongdoer is considered to be negligent.  This uniquely defined term of art is universally known and understood by every second-year laws student and lawyer in the United States.  In Arizona courts, however, this universally understood legal concept has been slightly altered and redefined as a result of the use of another term or concept called “fault.”

Arizona courts, through the use of standard jury instructions, have introduced the word “fault” to essentially replace part of the four elements of the universally understood definition of negligence.  The term “fault” means negligence that is a cause of a victim’s injuries.  Thus, the term “fault” is synonymous with elements 3 and 4 (causation and damages) of the concept of negligence.  This has effectively relegated the concept of negligence to mean elements 1 and 2 (duty and breach) of the negligence definition. 

What does this mean?  When using the term negligence, it should be understood as answering only the following questions:  Did an alleged wrongdoer have a duty to act or not act in a certain way?  And, did an alleged wrongdoer fail to act or not act in that way?  In other words, when the concept of negligence is used, the focus is on the conduct of a person and answers the ultimate question:  Did a person do something wrong?  When we use the term fault we are not asking whether a person did something wrong- we are asking the question- did the person that did something wrong cause a victim to be injured?  It is easiest to understand it in practice and I have set forth a simple fact pattern to demonstrate the concept.

Driver A fails to control his vehicle and rear-ends Driver B.   Driver B claims he is injured and sues Driver A.  Driver A admits he is negligent but argues that he is not at fault.  Thus, Driver A admits he had a duty to control his vehicle and failed to do so.  He admits he is a wrongdoer.  However, by denying he is at fault, Driver A is asserting that despite being the wrongdoer (i.e. he is negligent) his conduct did not injure Driver B or did not cause the injuries that Driver B is claiming.  Driver A could win against Driver B, even if Driver A admits negligence, but a jury determines Driver A is not at fault (if Driver B does not prove he was injured or that if he was injured it was not due to Driver A’s negligence).

10 Tips To Keep Your College Student Safe This Spring Break

Spring break is just around the corner and we know that many college students will be found on beaches in the warm and sunny weather venues. With that relaxation being the main priority of most, many tend to forget the simple things to remember in order to keep themselves safe. Below are 10 tips to help you stay safe while on vacation during spring break:

1. Book a hotel in a central location to limit the need to drive. The closer your hotel is to the beach, downtown or other areas where you plan to spend most of your time, the less likely you'll be to get lost or to be involved in a car crash. Avoid unlicensed taxi cabs by asking your hotel, restaurant or club to summon a ride for you, and if in doubt, pass up the car and wait for another one.

2. Avoid going out and/or traveling alone at night. There really is safety in numbers, and you and your friends can watch out for each other. Walking alone or even clubbing alone can make you a vulnerable target to people whose intentions are less than pure. Even a two-minute walk can be dangerous when you're alone at night - especially if you've been drinking.

3. Never go off with a stranger. Spring break can be a great time to meet new people, but that doesn't mean you should leave your group of friends to spend time with people you don't know. Even if your new acquaintances just want to walk down the street, stick to your group or at least bring along someone you know and trust.

4. Limit alcohol consumption to a reasonable level. Overdoing it on alcoholic drinks impairs your judgment, making you more susceptible to accidents and crime. Pace yourself, and avoid drinks with high alcohol content, like shots. Not only is it safer all around, you'll feel a lot better in the morning. If you plan to drink, always designate a sober companion in your group who can make executive decisions about everyone's safety.

5. Buddy System Yes, it sounds a little like summer camp in the third grade. However having an appointed buddy while on spring break is the number one best safety precaution. Especially if you are traveling in a large group, this person should help to make sure you get from place to place and keep tabs on you at clubs and when drinking. This works both ways, so you should keep an eye out for them too.

6. Remember that sun exposure and alcohol don't mix. Spring break often involves lots of time lounging in the sun and in hot tubs, both of which can intensify the effects of alcohol in the body. Take it easy, and remember to slather up with sunscreen with an SPF of at least 15, even when it's cloudy.

7. Use appropriate safety gear for sports and other recreational activities. Whether you're driving a scooter, skateboarding or just riding on a boat, protect yourself with any necessary equipment like helmets, knee pads and life jackets. 

8. Don't Drink and Drive No kidding, but when you’re under the influence in a foreign place, people can make bad decisions. Best bet? Just take a cab.

9. Know what to do in an emergency. It's easy to forget that in foreign nations, the phone number for emergency response is not 9-1-1. A State Department website called Students Abroad provides a list of these numbers along with detailed tips for health emergencies, evacuations, natural disasters, crime victims and assistance to U.S. citizens arrested abroad.

10. If you're traveling abroad, sign up online for the U.S. Department of State's Smart Traveler Enrollment Program (STEP). The STEP program enables the State Department to contact you in case of a family emergency, or to notify you of a crisis near your travel destination. You can also download a Smart Traveler iPhone App that provides additional tips and information.

Remember, staying safe should be the main priority of anyone. Especially those who are going on vacation or just taking a break from the same routine and heading out of town for some recharging time. Be safe everyone and have a great spring break!

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Drugged driving on the rise, thousands arrested in Arizona

Study shows Insurers like Law Firm "Settlement Mills". Why?

In the article, “Run of the Mill Justice”, Nora Freeman Engstrom of Stanford Law School interviewed lawyers and paralegals at the "settlement mill" law firms,  as well as studying their not-infrequent disciplinary files. What she found would look quite familiar to anybody involved in the securities class-action business: A small group of goal-directed players who engage in repeated rounds of the same game.

Her conclusion is surprising, but logical. Law firm "settlement mills" work because insurance companies like them.  The financial "benefit" to insurance companies in just the incentive they hope for in personal injury cases.

Insurance companies choose to cooperate with settlement mills, in part because settlement mills appear willing to settle the largest claims — which present the highest chance of a catastrophic verdict — at an attractive discount. In addition, settlement mills and insurance companies share two sets of overlapping interests: speed and certainty. Insurers, it appears, cooperate with settlement mills, in even marginal cases, because cooperation is profitable.  It is attractive to insurance companies to pay a settlement mill less than they believe they would have to pay a law firm that is not a settlement mill.  

The article (hat tip to Drug and Device Law for bringing it to my attention) offers a fascinating tour through a little-scrutinized arm of the legal industry in which lawyers with little or no courtroom experience use advertising to draw in unsophisticated clients and process their claims at industrial levels of efficiency. Many of the claims involve “soft-tissue” injuries like neck sprains, which insurance-company research has shown tend to multiply in value when a lawyer is involved. 

The problems arise, and opportunity for insurance companies arise, because settlement mill lawyers have no intention of filing suit---and the insurance companies know it. (Engstrom cites one Louisiana firm that tried four cases in a year and lost all of them, before deciding that was no way to make money in the law.) As she suggests, insurance adjusters know this. So they are more than willing to pay hundreds of questionable soft-tissue claims at $2,500 or $5,000 a pop to insure that the truly dangerous accident case, the kind the right jury might decide was worth substantially more, to an injured person, gets settled along with the rest.  (Of course, the injured person never receives this information.)

Statistics show the trend. From 1992 to 2001 the number of accident suits filed in 17 states representing 53% of the U.S. population fell 14%, while the actual number of accidents rose. Insurance companies tell you that the US is "lawsuit crazy".  these statistics tell quite a different story.  the number of accidents has substantially increased, yet the number of lawsuits has substantially decreased.  Lawsuit crazy?  Hardly.

There are winners and losers in this game, Engstrom writes. The winners are the settlement-mill lawyers, who make nice incomes despite having subpar legal skills.  the insurance companies also win, by paying less on claims to victims represented by settlement mill lawyers.  The losers are the people injured in the accidents, and they never even know it.  they are told that their case is not worth much, that a lawsuit will be expensive and take a long time.  They end up consenting to low settlements "just to go away."  

There are now so many of these mills, whose advertising engulf both TV and radio advertising.  In addition, there are many law firms who know virtually NOTHING about personal injury cases, yet are willing to accept them in the hopes of making quick money.  

How do you know the difference between a good, experienced lawyer and the others?  The simple response:  Ask. Ask the lawyer if he is experienced. Ask what percentage of his practice is devoted to personal injury.  Ask if he files lawsuits and how many he has been involved in.  Ask if he tries cases in court--and how many.  Most importantly, ask if your lawyer is a Certified Specialist in Personal Injury and Wrongful Death.  (Note: Less than 1% of all Arizona attorneys are Certified Specialists.).

It is sometimes difficult to choose the right attorney for your case.  Most importantly, above all else, you should feel comfortable with your attorney. Asking the above questions should help. 

Related articles

Your frequently asked questions, answered by us.

How does a prior injury sustained affect the outcome of a car accident?

Some officers don’t use seatbelts. Could it be costly in the long run?

By the time his police cruiser tumbled to a halt in the underbrush beside the interstate in August, the young police officer had been flung clear of the car to his death, the same fate that had been suffered by 139 other officers nationwide who were ejected from their vehicles when not using a seat belt.  Although most state’s laws require police to use seat belts, federal data show that only about half of them do, and over the past three decades, 19 percent of the officers killed in accidents were ejected from their vehicles.

A Prince George’s County police officer who had dreamed of joining the force since he entered a law enforcement program as a teen died when his cruiser crashed on the Capital Beltway.  “We’ve been told it’s ‘I want to be able to get out of the car quickly, it interferes with my gun or it interferes with my belt, it interferes with my driving.’ All the wrong reasons,” said Geoffrey P. Alpert, a University of South Carolina professor who has studied high-risk police activities for more than 25 years. “I can understand if you’re pulling up to a scene and you undo your seat belt because you want to be able to get out quickly, but not when you’re going 100 miles an hour on the freeway.”

Prince George’s County Police Officer Adrian Morris died of head injuries Aug. 20 after being thrown from his cruiser when it left Interstate 95 during the high-speed chase of a stolen car. His partner, Mike Risher, was buckled in the passenger seat. He was treated at and released from a hospital that day.

That incident came a week after a Fairfax County police officer whose name has not been released was involved in a fatal accident. The officer was headed east on Franconia Road just before 3 a.m. Aug. 13 when a car swerved in front of his cruiser, striking it head-on. The car burst into flames, and its driver died. The officer was trapped, but he was pulled free and survived.

“Thank God he had his seat belt on,” said Capt. Susan H. Culin, who heads the county’s traffic division. “He’s very adamant that his seat belt saved his life.”

Seat belts and air bags have made the high-risk pursuit of criminal suspects less deadly than it once was, but for more than a dozen years, traffic fatalities killed more police officers than bullets did. The trend was reversed last year, when the number killed by gunfire — 68 — was four more than the number who died in traffic incidents. The question of when police should chase a fleeing suspect has been debated in public and law enforcement circles for years, leading most police departments to delineate their rules. Research has shown that 1 percent of chases end in a fatality and that an officer dies as the result of a pursuit every 11 weeks.

The National Highway Traffic Safety Administration determined that 139 officers died when ejected from their vehicles in crashes between 1980 and 2008 and that only 45 percent of the 733 officers who died in crashes during the period had their seat belts fastened.

By contrast, 84 percent of all American drivers use their seat belts, the NHTSA estimates.  In Prince George’s, the importance of officers using seat belts is stressed in the annual in-service training, a portion of which is devoted to safe driving, police said.  “You can change any policy and procedure that you want to change, reduce it to writing and stick it in your 400-500 page general order manual, but you’re not making any headway unless you change the culture,” Davis said.

He calls the three reasons most officers give for eschewing the seat belt — it gets tangled with their gun belt, it delays their exit from the car and it hampers their ability to dodge a bullet — “absolutely absurd.”  “It’s a bunch of garbage, and I just don’t buy it,” he said.

This writer agrees. I don’t buy it either. To me it is pure laziness and a blatant violation of the traffic laws. As a Phoenix Car Accident Lawyer, no one is truly safe from an accident; not even our Police Officers. So why wouldn't they wear their seat-belts. It is after-all the law isn't it?

They don’t wear it “in case they have to chase a fleeing suspect”?  Yeah right. That happens often.

I have the greatest respect in the world for police officers, but cannot respect a hypocrite. 

DO AS I SAY, NOT AS I DO?  That works with my kids, but not with police officers who are much better trained in safety procedures and maneuvers than almost any other segment of society. 

Come on guys, get real.  Obey the same laws that the rest of us obey, and that you are more than happy to write a ticket for

That life you now “serve and protect” might just be your own.

Fan violence, unruly behavior and drinking excessively: Our national past time?

Going to the ball game isn’t what it used to be. Not only because the rising costs of tickets, but also because of the rising incidents that occur because of alcohol. A recent study conducted by the University of Minnesota, 362 adults exiting 13 baseball games and three football games were asked to complete a survey and submit to a breathalyzer test to determine their Blood Alcohol Concentration (BAC).  This study was the first ever conducted to measure blood alcohol content immediately after professional sporting events in the United States.

Results of the BAC revealed:

• 60% of participants exiting the game had zero BAC
• 40% showed a positive BAC
• Nearly 8% were legally drunk

The study also showed that people under the age of 35 were eight times more likely to be legally drunk than other fans, and those who "tailgate" before the game were the worst offenders. Tailgaters were shown to be 14 times more likely to leave a game intoxicated.  In an anonymous survey following the breathalyzer test, one in four tailgaters admitted to consuming at least five alcoholic beverages. Those with the highest BAC range consumed an average of 6.6 drinks.

The study also showed that one out of every 12 fans attending a football or baseball game will leave the stadium legally drunk. Let’s do the math. If 60,000 people show up to a football game and one out of 12 leaves drunk, that’s 5,000 intoxicated people on their way home.  The most alarming thing is a good percentage of these intoxicated fans will probably get behind the wheel and drive home.

In an effort to minimize alcohol related incidents many sports stadiums and arenas have set their own policies. For example at the University of Phoenix Stadium, where the Arizona Cardinals, play they strongly encourage all fans to exercise responsible consumption of alcoholic beverages.  A few of their rules include:

• Any fan that shows signs of impairment and/or intoxication will not be allowed to enter or will be removed from University of Phoenix Stadium and subject to arrest.
• Any attempt to bring alcohol inside the stadium or possession of an alcoholic beverage not purchased from the University of Phoenix Stadium concessionaire may result in ejection.
• Concessionaire staff members reserve the right to deny service to fans that show signs of impairment and/or intoxication.
• A maximum of two alcoholic beverages or 32 ounces of beer will be sold per person per transaction.
• Alcohol sales in the general seating areas of University of Phoenix Stadium will stop at the conclusion of the third quarter.

Angel Stadium of Anaheim, home of the Los Angeles Angels, takes it a step further by not even allowing people to bring alcohol into the parking lot or consume it there.  They also stop the sales of alcohol inside the stadium at the conclusion of the 7th inning.  Indeed, MOST professional baseball ballparks cease sales of alcohol at the end of the 7th inning.

Unfortunately not all sports facilities have strict policies regarding alcohol. As a Phoenix Personal Injury Lawyer, they all should have them.

THE QUESTION: 

If someone drinks too much at a game, and causes an accident later that hurts someone, who is liable?

THE ANSWER:

In addition to the at-fault party, the stadium authority, the team and the vendor ALL may be at fault. At these stadiums, just like every restaurant and bar, a liquor license is needed to sell alcohol.

In selling liquor with a license, the same rules exist for all:

You cannot sell to a minor;

You cannot sell to a person who is intoxicated, or obviously intoxicated;

You cannot sell more than a certain amount to any one person.

The sale of alcohol, as all things, requires observation and common sense.

Question: Well, what if the person who got drunk and caused the accident didn’t make the actual purchase—they had someone else buy it all for them?

Under the Arizona liquor laws, it makes no difference. If they obtained and consumed alcohol on the premises of a liquor licensee, got drunk and later caused harm, there is liability on the licensee.

What would be the contrary result? The “I didn’t know” defense?

Too convenient and too easy. The burden rests on the liquor licensee.

Alcohol is a drug. Those who consume must be responsible, and those to make a living selling it must be responsible. 

The contrary result is scary… 

Child Care in Gyms. Why it's a horrible idea

You’ve seen them before. Child care centers in workout gyms that help parents get a few minutes away to exercise, while their child is being supervised by someone.  Gyms like LA Fitness are a perfect example of this. You wouldn’t really think about it, but what would happen if a child or even your child somehow was injured due to someone else’s negligence in these child-care facilities?

You would normally think that surely you could, file a complaint with the child-care center and some recourse would come about.  But the truth is these day-care centers in gyms like LA Fitness aren’t regulated by the Health Department Services or any other service for that matter in Arizona.  Gym child-care centers do not fall under the jurisdiction of the Arizona Department of Health Services.

So who does govern these child-care centers? Cara Christ, DHS assistant director of the division of licensing services, says it is up to the companies offering these services to set their own requirements. She said the state regulates only facilities that watch children on "a regular and routine basis for compensation."

The following link illustrates what can happen: click here

Now, is there any recourse should something happen?  Does the gym have ANY responsibility? Liability?

As a Phoenix Personal Injury Lawyer, the answer here simply is yes, of course they do.

Generally, no matter what the task, when a person voluntarily assumes a duty to act, they take on the duty to act in a responsible, non-negligent manner.  Even more so, when a fee is paid for their services, the duty to act responsibly becomes even more paramount.  

 

Thank God this little girl was only wandering through the gym.  I will not even surmise the other possible, horrific scenarios. Regulated or not, when a exercise facility assumes the responsibility to care for your child, and charges a fee to do so, they better return your little boy or girl just as he or she was delivered to them.   

Missouri Supreme Court tosses out state's caps in medical malpractice cases

The Missouri Supreme Court has tossed out the state’s caps on malpractice claims, touching off a strong reaction from supporters and opponents of the caps, put in place in 2005.  The Missouri State Medical Association issued a strongly worded statement saying that the ruling “eviscerates one of the nation's most successful tort reform laws” and could result in physicians leaving the state.

My response:  Hogwash!!!!!!!

Whenever a “tort reform” measure goes down in flames, the advocates resort to scare tactics.  Doctors will leave the state.  No good doctors will come to Missouri.  Doctors will refuse to treat patients for fear of being sued. Fearmongers, and complete crap!

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The president of the Missouri Association of Trial Attorneys lauded the court's action as "a good day for anyone in Missouri who believes in the constitution."  In the 4-3 ruling, written by Chief Justice Richard B. Teitelman, the state court ruled that Missouri’s cap on non-economic damages violates the state constitution’s right to a fair trial because courts would have to reduce such jury-awarded damages if they were larger than the state’s cap.

The case that prompted the decision was Watts vs. Cox Medical Center, in which a woman gave birth to a son in 2006 with serious brain damage. She sued the medical center and her doctors, proving that there were clear warning signs several days before the birth that should have prompted swifter medical action.  The jury agreed and awarded the woman $3.37 million to help pay for the extensive medical bills for her son. 

Missouri's legislature enacted a cap of $350,000 in 2005.  The Missouri Supreme Court said that a reduction of the jury verdict to $350,000 would not be anywhere near enough for the medical bills the woman would incur for her son. 

Tim Dollar, president of the Missouri Association of Trial Lawyers, said the Missouri court's decision reflected what his members has been saying for years -- that the cap on non-economic damages was unfair to the victims and families in malpractice cases where health care services may be needed indefinitely.  "The legislature attempted to encroach on our constitutional rights,'' Dollar said, and failed to comprehend "what this (cap) means to children, such as this boy, whose lives are forever altered'' by a mistake in medical care.

Final Thoughts:

The ruling places and keeps the responsibility for the harm caused this young child on the people who caused it, and little doubt, there was more than enough private insurance to pay.  This is why people buy insurance.  Otherwise, the burden to pay this child’s medical care would fall to the taxpayers.  That is not the way the justice system is supposed to work.

If you break it, you should have to pay for it.  However, many would prefer to escape responsibility, and have someone else (the government/taxpayers) pay for their mistakes.  That is exactly what “damage caps” accomplish. 

This is a great ruling for this family, consumers and every American. 

What do you think?

What if people couldn't be held responsible for Harm?

If you haven’t heard the story about Dr. Yasser Awaad of Dearborn, Michigan, let me summarize it for you:

This neurologist took advantage of as many as 255 of his patients – maybe more – by diagnosing them with diseases they didn’t have and prescribing medication they didn’t need. Why?  Apparently to cash in on large insurance payouts for the needless treatment. Not only was the treatment unnecessary, it was often harmful, as the side effects of the powerful medications ruined the lives of some of his patients.

Dr. Awaad denies any wrongdoing, saying he was just “exercising his professional judgment”. And if a package of bills currently being considered by the Michigan Senate Insurance Committee is ultimately passed, Dr. Awaad and those like him will never be held accountable for their actions.

Michigan Senate Bills 1110, 1115, 1116, 1117, and 1118 would essentially grant immunity doctors.  Injured victims and their families would have no legal recourse in the vast majority of cases. In the few that could potentially be pursued, the amount of compensation that could be recovered would be so drastically limited that no one could financially justify bringing a claim or filing a case in court.  In short, the voices of victims would be silenced. People would be completely denied their day in court for personal injury at the hands of others.

Then, the taxpayers (YOU), rather than wrongdoers, will be paying for the ongoing treatment of these injured people through Medicaid and Medicare.

Would you feel safe going to a hospital where an emergency room doctor can be negligent but not responsible for his or her actions?  Would you be comfortable having a baby delivered by your OB doctor who can’t be held accountable for his or her mistakes?

Indeed, would you be comfortable doing ANYTHING, ANYWHERE, if the people in charge could not be held accountable if they harmed you or your family?

This is what is meant by “Tort Reform”.  “Reform” literally means taking away or in some way limiting your rights to seek redress or recovery for the harms caused by another.  It sometimes may sound like a good idea---until it happens to you.  It is never as important, until it happens to you. 

Remember:

First they came for the communists,
and I didn't speak out because I wasn't a communist.

Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.

Then they came for the Jews,
and I didn't speak out because I wasn't a Jew.

Then they came for me
and there was no one left to speak out for me.

The laws of the United States, and each of the states, hold people accountable for their wrongdoing. 

Just stop and think for a minute:  If people could not be held accountable and liable for their wrongdoing in causing personal injury to you, what type of country/world would we live in?  It would be complete anarchy.  It is a world that I cannot envision, and never want to. 

If the proposed bills pass in Michigan, would you ever want to go there?  What if something happens to you or a family member while there, and you need medical care?  Is that a chance you want to take?

This is a very bad idea. The potential results are catastrophic for residents of Michigan. 

Please feel free to comment. 

Heading out on the road for Spring Break? Know the rules of the road

Are you traveling out of Arizona for Spring Break?

AAA Arizona is urging drivers to know the laws before they head out on the road across the U.S. and Mexico.

For instance, did you know you can be stopped by law enforcement officers in California for 1) holding and talking on a cell phone or 2) for texting while driving?  It is my understanding that this is pretty strictly enforced. 

It's the same in Nevada; if you're going to use a cell phone while driving you must use a hands free device or you will get pulled over.

 

Arizona, however, does not have a law prohibiting cell use by drivers.  (Actually, there is Phoenix City ordinance prohibiting texting while driving, but it is not enforced.)

Heading south for Spring Break? Remember that speed limits in Sonora, Mexico are in kilometers and that if you are arrested for any reason you may be jailed until you can prove your innocence. In Mexico you are assumed guilty until proven innocent. That little thing known as a “tourist visa” you can get when you cross the border?  Get one.  Without it, the State Department may now recognize your rights as an American citizen, and any assistance could be substantially delayed (while you sit in a Mexican jail)

Also, U.S. auto insurance is generally not valid in Mexico, so be sure to pick up a Mexico auto policy before heading over the border.  These can be obtained at the border also.  They are not real expensive, and can be the best money you spend should something happen to you while down there. 

In Texas and New Mexico, seat belts are required for the driver and all passengers.  On that note, seat belts are required throughout AZ, and the driver must ensure that all passengers under the age of 16 are belted no matter where they are sitting in the vehicle. 

AAA has more information on driving laws throughout the U.S. on their website.

I remember my Spring Break travels very well.  Rarely was a better time had than a Spring Break trip with friends.  (And remember, what happens on Spring Break stays on Spring Break.)  Just remember to keep your head, maintain some degree of common sense and be careful.

Also, please be sure to download our Glove box safety card created by Phoenix Personal Injury Lawyer, Chris Zachar. These are instructions on how to stay safe!

HAVE A GREAT AND SAFE SPRING BREAK!!!!

When a Doctor Says "I'm Sorry" -- What Does That Mean in Arizona?

One Arizona medical malpractice law that deals with a doctor’s admission of negligence is called the “I’m Sorry” law. This Arizona medical malpractice law is designed to shield doctors from unwarranted lawsuits brought by individuals that would use a physician’s admission of regret and feelings of sorrow as affirmative statements of fault or negligence. The Arizona medical malpractice law was created to limit the amount of claims brought against physicians.  It is believed that if physicians can simply apologize for their mistakes, it will diffuse an otherwise injured or damaged victim from deciding to file a lawsuit for their injuries. 

Medical malpractice occurs when a healthcare provider delays or fails to diagnose needed treatment.  It also occurs when a healthcare provider makes a mistake that the medical community would not make.  This is called “standard of care”. Examples of medical malpractice include misreading or misinterpreting tests, mistakes made in surgery, administration of the wrong medication or wrong dosage, or simply failure to notice a problem. Generally, when these types of errors cause serious injury or wrongful death, it is considered medical malpractice.

Thirty-five (35) states including Arizona have “I’m Sorry” laws that protect health care providers who express sympathy to a patient for an unanticipated outcome, from having such statement used against the physician in an ensuing lawsuit. The purpose of the “I’m Sorry” law is to encourage open communication between patients and physicians without fear of reprisal in the form of a medical malpractice lawsuit. The types of expressions covered by the “I’m Sorry” Arizona medical malpractice law and their level of protection vary among the states. In Arizona, a physician is protected from a statement, gesture, or expression if it is related to the discomfort, pain, suffering, injury or death of the alleged victim.

The Arizona medical malpractice law provides that the communication is inadmissible as an admission of liability or an admission against interest. Thus, if a person is further injured or dies in a medical setting, and you believe that medical malpractice is involved, the conveyance of regret and being sorry for the outcome is generally not admissible in court to prove negligence or fault by the physician. However, if the physician communicates more than just a general feeling of regret and communicates that he is sorry for performing or failure to perform an action that constitutes medical malpractice, the Arizona medical malpractice law does not completely protect the physician

Medical malpractice cases are always difficult, and always hard fought by the physicians and their attorneys.  Since the Arizona medical malpractice law is fairly complicated and can be tricky in applying to a certain situation, contacting an experienced attorney that specializes in medical practice is advised. An attorney familiar with the Arizona medical malpractice law will be in the best position to determine whether or not the “I’m Sorry” law applies and whether the statements by the physician can be admissible in a medical malpractice lawsuit.

The attorneys at Zachar Law Firm are experienced specialists in Arizona medical malpractice cases.  You can call for a free, no-obligation consultation at (602) 494-4800 or visit www.ZacharAssociates.com.