Hot Topics in Medical Malpractice

Table of Contents

• The Reality of the Medical Malpractice Climate in Arizona
• The "Blame the Patient Defense" Is Common in Medical Malpractice Cases. Careful Preparation Can Confront It and Overcome It At Trial.

The Reality of the Medical Malpractice Climate in Arizona

Here are some interesting facts and statistics concerning medical malpractice cases in Arizona taken from an article published in the Arizona Attorney, May 2007 and entitled Arizona Civil Verdicts 2006 by Kelly Wilkins MacHenry:

During the past three years, 111 medical malpractice cases have been tried by a jury and have gone to verdict in Arizona. Of that total, defendants (the medical providers) have won 80 percent, and plaintiffs (the injured parties) have won 20 per cent.

However, when plaintiffs prevail, these types of cases can generate large awards. Eleven medical malpractice cases in that time period had verdicts of $1 million or more, including four that were $5 million or more. thus although it appears that liability may be a difficult hurdle for our juries in these cases, once established, they will award sizeable damages.

Arizona juries conservative results in medical malpractice cases are a result of several factors, according to Kay Cooper who wrote an informative article in the February 2007 of the Arizona Attorney. The high costs of pursuing such claims, hostile juries and new restrictions imposed by the courts and legislature make many otherwise meritorious cases impractical to file. As she states, some blame the Bush Administration, some insurance companies and some say it is just a natural cycle. The pursuit of such claim are also made difficult because many of the medical provider's insurance policies contain provisions authorizing the physicians to have the final say concerning whether a claim is settled or tried.

These statistics should not necessarily be discouraging for claimants who believe they have meritorious claims, but they should at least create some picture of the reality of the Arizona climate. With significant meritorious claims, jury verdicts can be very substantial. Hopefully the pendulum will swing back to allow more compassion to and compensation for victims of medical malpractice. Population growth throughout the state should result in better jury verdicts and what Ms. Wolf refers to as "treadmill medicine"- the practice of moving patients through the system without taking time to list to them or react to their needs- should result in the recognition by the public that medical malpractice awards in certain instances are fully justified.

The "Blame the Patient Defense" Is Common in Medical Malpractice Cases. Careful Preparation Can Confront It and Overcome It At Trial.

Health care providers routinely assert the plaintiff's contributory negligence as an affirmative defense in medical negligence cases. The "blame the patient" defense can take many forms. It may be an open claim of contributory fault that caused the bad outcome, such as a failure to provide a complete and accurate medical history. It may be an assertion that the plaintiff's failure to comply with instructions either prevented an opportunity for correction or aggravated the consequences of improper care. It may even include an assertion that the plaintiff's negligence caused the condition for which the negligently provided medical care was required. In short, the defense may try to use "throw in the kitchen sink defenses" in an effort to overcome the plaintiff's claims.

Examples of this type defense come up often in failure to diagnose or delayed diagnosis cases and in 'informed consent' cases (you gave us permission to do the procedure - so what follows is not our problem) Defense attorneys often argue patients would have been fine if they had not failed to follow medical instruction. The simple fact is- sick people deserve the same care whether they smoke, drink, drive too fast or engage in socially unacceptable behavior.

A good plaintiff's attorney will develop a plan to demand or undermine the basis of such defenses in discovery and prevent assertion of them by pretrial motion or at lease request appropriate limiting instructions at trial. There is, of course, no guarantee of a favorable outcome in the trial of any medical negligence case. However, with proper analysis, preparation and execution, a good medical malpractice attorney can minimize the potential for mischief posed by the "blame the patient" defense. [Information taken in part from Trial magazine, May 2006, How do I blame thee? Let me count the ways, by Lynn R. Laufenberg