- What is the Statute of Limitations?
- How do I make a claim against state or local government?
- How do I make a claim against the federal government?
- What is medical malpractice?
- What damages can be recovered for medical malpractice?
- Can anything be recovered if medical malpractice causes the patient to die?
- How does the Wiggins Law Offices evaluate my case?
- Do I have to pay my insurance company back out of a recovery for personal injuries?
- Do I have to pay back government benefits paid to me because of an injury?
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 generally 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. Back to Top
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?” The notice of claim has become a more technical document in recent years. 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. Back to Top
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. The notice of claim form, a Form 95, has certain technical requirements that can affect the claimant’s ability to receive a full recovery of their damages. 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 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. Back to Top
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 Wiggins Law Offices evaluate my medical malpractice case?” Back to Top
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 as a normally healthy person to perform the heavy labor required of carpenters. 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 care 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. It includes damages for the loss of enjoyment of a normal life.
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 malpractice causes the patient to die?” Back to Top
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 estate of the deceased 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. Back to Top
When you call the Wiggins Law Offices 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 with which he can help you or whether other lawyers or agencies would more appropriately deal with your situation. Given 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 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. Back to Top
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 motorist coverages can be credited against those uninsured benefits in certain cases. Medical payments cannot be credited against benefits paid through under-insured motorist coverages. Similarly, medical payments benefits in excess of $5,000.00 may also be recovered against any recovery you make against the person who injured you. 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. Back to Top
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 by the bodily injuries. Medicare and medi-gap insurers do not have to file the lien to make it effective.
Medicare and medi-gap insurance should be distinguished from Medicare Plus Choice plans where the Medicare recipient elects to contract with an insurance company to receive all of their Medicare benefits. Currently, there is a strong legal argument that these plans do not have a right of recovery in Arizona. This legal argument can be used to substantially reduce or eliminate reimbursement claims from Medicare Plus Choice plans.
Social Security Benefits. Neither death nor SSD 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. On the other hand SSI social security benefits may be affected by a settlement, since those are based upon the recipient’s low income.
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. Back to Top