Arizona Medical Malpractice Complaint

COMPLAINT FOR MEDICAL MALPRACTICE — ARIZONA

Table of Contents

1. Court Caption and Parties
2. Jurisdiction and Venue
3. Statute of Limitations Compliance
4. Parties and Capacity
5. Factual Allegations
6. Cause of Action — Medical Negligence
7. Cause of Action — Lack of Informed Consent (if applicable)
8. Cause of Action — Vicarious / Corporate Liability
9. Damages
10. Compliance with A.R.S. § 12-2603 Certification
11. Jury Demand
12. Prayer for Relief
13. Verification (if required)
14. Sources and References

1. Court Caption and Parties

SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF [____________]

Case No.: [____________]
Tier: ☐ Tier 1 ☐ Tier 2 ☒ Tier 3 (presumed for medical malpractice — Ariz. R. Civ. P. 26.2)
Assigned Judge: [____________]

COMPLAINT FOR MEDICAL MALPRACTICE AND DEMAND FOR JURY TRIAL

Plaintiff [____________] ("Plaintiff"), by and through undersigned counsel, complains and alleges against Defendants as follows:

2. Jurisdiction and Venue

1. This Court has subject-matter jurisdiction under Ariz. Const. art. 6, § 14, and the amount in controversy exceeds the minimum jurisdictional threshold of this Court.

2. Venue is proper in [____________] County under A.R.S. § 12-401 because [☐ the cause of action arose in this county / ☐ Defendant resides or maintains a principal place of business in this county / ☐ the medical care at issue was rendered in this county].

3. All conditions precedent to suit, including those imposed by A.R.S. §§ 12-2602 and 12-2603, have been or will be satisfied.

3. Statute of Limitations Compliance

4. This action is timely commenced under A.R.S. § 12-542(1), which establishes a two-year limitations period for medical malpractice actions running from the date the cause of action accrued (or from the date Plaintiff knew or, in the exercise of reasonable diligence, should have known of the injury and its causal connection to the medical care).

5. The cause of action accrued on or about [__/__/____], when [☐ the negligent act occurred / ☐ Plaintiff first discovered or reasonably should have discovered the injury and its causal connection to Defendant's conduct].

4. Parties and Capacity

7. Plaintiff [____________] is and at all relevant times was a resident of [____________] County, Arizona. [If suing in representative capacity: Plaintiff is the duly appointed [Personal Representative / Guardian / Conservator] of [____________] pursuant to [____________].]

8. Defendant [____________], M.D., is and at all relevant times was a physician licensed to practice medicine in the State of Arizona under license no. [____________], and held himself/herself out as a [☐ general practitioner / ☐ specialist in [____________] / ☐ board-certified specialist in [____________]].

9. Defendant [HOSPITAL / CLINIC NAME] is and at all relevant times was an Arizona [corporation / limited liability company / non-profit] doing business in [____________] County, owning and/or operating the medical facility known as [____________] located at [____________].

10. At all relevant times, Defendant [Physician] was an [☐ employee / ☐ actual or ostensible agent / ☐ apparent agent] of Defendant [Hospital], acting within the course and scope of that relationship, such that Defendant [Hospital] is vicariously liable under the doctrines of respondeat superior and ostensible agency. See, e.g., Riedisser v. Nelson, 111 Ariz. 542 (1975).

11. The fictitious-name Defendants (Doe, Black, White) are persons or entities whose true identities are presently unknown to Plaintiff but who participated in or contributed to the negligent acts alleged herein. Plaintiff will amend this Complaint to substitute true names when ascertained pursuant to Ariz. R. Civ. P. 10(f).

5. Factual Allegations

12. On or about [__/__/____], Plaintiff [☐ presented / ☐ was admitted / ☐ underwent procedure] at [____________] for [____________].

13. Defendants undertook to provide medical care, treatment, diagnosis, and/or surgical services to Plaintiff, and a physician-patient relationship was established under Arizona law.

14. The care provided by Defendants included, without limitation: [describe with particularity—dates, providers, procedures, diagnostic studies, medications administered, surgical interventions, post-operative orders, discharge instructions]:

a. [____________________________________________________________]

b. [____________________________________________________________]

c. [____________________________________________________________]

15. As a result of the care described above, Plaintiff suffered [describe injury: e.g., permanent neurological deficit, surgical-site infection requiring multiple revision procedures, undiagnosed malignancy that progressed, retained foreign body, etc.].

6. First Cause of Action — Medical Negligence

17. Plaintiff incorporates paragraphs 1 through 16 as though fully set forth herein.

18. Defendants owed Plaintiff the duty to exercise that degree of care, skill, and learning expected of a reasonable, prudent health care provider in the same or similar circumstances. See A.R.S. § 12-563; RAJI (Civil) Medical Negligence 1.

19. Defendants breached the applicable standard of care by, inter alia:

a. ☐ Failing to timely and properly diagnose [____________];

b. ☐ Failing to order, perform, or interpret appropriate diagnostic studies, including [____________];

c. ☐ Failing to perform [procedure] in a manner consistent with accepted standards of practice;

d. ☐ Failing to recognize and respond to clinical signs and symptoms of [____________];

e. ☐ Failing to consult or refer to an appropriate specialist;

f. ☐ Failing to obtain informed consent (see separate count below, if alleged);

g. ☐ Failing to monitor, supervise, or follow up;

h. ☐ Departing from accepted protocols and guidelines, including [____________];

i. ☐ Other: [____________________________________________].

20. Defendants' breaches of the standard of care, individually and collectively, were direct and proximate causes of the injuries and damages suffered by Plaintiff.

21. As provided by A.R.S. § 12-563, Plaintiff will establish through qualified expert testimony complying with A.R.S. § 12-2604 (a) the applicable standard of care; (b) Defendants' departure from that standard; and (c) the causal relationship between the departure and the injuries sustained.

7. Second Cause of Action — Lack of Informed Consent (Optional)

22. Plaintiff incorporates the foregoing paragraphs.

23. Defendants undertook to perform [procedure / treatment] on Plaintiff and had a duty to disclose all material risks, alternatives, and reasonably foreseeable outcomes that a reasonable patient in Plaintiff's position would consider material to the decision whether to undergo the procedure. See Hales v. Pittman, 118 Ariz. 305 (1978).

24. Defendants failed to disclose [identify undisclosed material risk / alternative], and a reasonable patient in Plaintiff's position would have declined the procedure had the risk or alternative been disclosed.

25. The undisclosed risk materialized and proximately caused Plaintiff's injuries and damages.

8. Third Cause of Action — Vicarious / Corporate Liability

26. Plaintiff incorporates the foregoing paragraphs.

27. Defendant [Hospital / Practice] is vicariously liable for the acts and omissions of its actual, apparent, and ostensible agents, including the individual physician Defendants, under the doctrines of respondeat superior and ostensible agency.

28. Independently, Defendant [Hospital] is directly liable for [☐ negligent credentialing / ☐ negligent supervision / ☐ negligent retention / ☐ corporate negligence as recognized in Purcell v. Zimbelman, 18 Ariz. App. 75 (1972)], in that it [____________].

9. Damages

29. As a direct and proximate result of Defendants' negligence, Plaintiff has suffered, and will continue to suffer, damages including but not limited to:

a. Past and future medical expenses, including hospitalization, surgical, rehabilitative, pharmaceutical, and home-health expenses;

b. Past and future lost wages, lost earning capacity, and loss of household services;

c. Past and future physical pain, mental and emotional suffering, anguish, disfigurement, and loss of enjoyment of life;

d. Permanent impairment and disability;

e. [If applicable: loss of consortium, companionship, and society];

f. [If wrongful death: damages recoverable under A.R.S. §§ 12-611 et seq.];

g. Punitive damages, on a showing by clear and convincing evidence of an "evil mind" under Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326 (1986), if supported by the evidence.

30. No statutory cap on damages applies. Article 2, Section 31 of the Arizona Constitution provides: "No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person." This constitutional bar prohibits any legislative cap on compensatory or noneconomic damages in personal-injury and wrongful-death actions, including medical malpractice. See Smith v. Myers, 181 Ariz. 11 (1994); Kilpatrick v. Superior Court, 105 Ariz. 413 (1970).

31. Damages allocation will be governed by Arizona's pure comparative-negligence regime under A.R.S. § 12-2505 and the several-only liability provisions of A.R.S. § 12-2506. Plaintiff anticipates that the trier of fact will allocate fault among the parties and any nonparties at fault designated under Ariz. R. Civ. P. 26(b)(5).

32. The collateral source rule remains intact in Arizona medical malpractice cases; payments from collateral sources are not admissible to reduce Plaintiff's damages. See Lopez v. Safeway Stores, Inc., 212 Ariz. 198 (App. 2006).

33. Apologies, expressions of sympathy, or expressions of benevolence by health care providers regarding unanticipated outcomes are inadmissible to prove liability under A.R.S. § 12-2605, but the underlying conduct and statements of fault remain admissible.

10. Compliance with A.R.S. § 12-2603 Certification

34. Certification of Necessity of Expert Opinion Testimony. Pursuant to A.R.S. § 12-2603(A), Plaintiff hereby certifies that expert opinion testimony IS necessary to prove the standard of care, breach, and/or causation against the health care professional Defendants in this action.

35. Plaintiff will serve a Preliminary Expert Opinion Affidavit conforming to A.R.S. § 12-2603(B) with Plaintiff's initial disclosures required by Ariz. R. Civ. P. 26.1, or within such other time as ordered by the Court or stipulated by the parties under § 12-2603(C).

36. Plaintiff's expert(s) will satisfy the qualifications of A.R.S. § 12-2604, including (where applicable) same-specialty and board-certification matching, majority-of-professional-time devoted to active clinical practice or accredited teaching during the year preceding the occurrence, and the prohibition on contingent fees.

11. Jury Demand

37. Plaintiff demands trial by jury on all claims and issues so triable, pursuant to Ariz. R. Civ. P. 38 and Ariz. Const. art. 2, § 23.

12. Prayer for Relief

WHEREFORE, Plaintiff respectfully prays for judgment against Defendants, jointly and severally to the extent permitted by A.R.S. § 12-2506, as follows:

A. For general and special compensatory damages in an amount to be proven at trial, exceeding the minimum jurisdictional threshold of this Court;

B. For past and future medical expenses, lost earnings, and loss of earning capacity;

C. For past and future pain, suffering, mental anguish, disfigurement, loss of enjoyment of life, and (if applicable) loss of consortium;

D. For punitive damages, upon a showing by clear and convincing evidence;

E. For pre-judgment interest on liquidated damages from the date of accrual at the rate set by A.R.S. § 44-1201, and post-judgment interest from entry of judgment;

F. For taxable costs of suit;

G. For attorneys' fees as authorized by contract, statute, or the private attorney general doctrine where applicable; and

H. For such other and further relief as this Court deems just and equitable.

DATED this [____] day of [_______________], [______].

[FIRM NAME]

By: __________________________________
[Attorney Name], SBN [____________]
[Firm Address]
[City], Arizona [Zip]
Telephone: [____________]
Email: [____________]
Attorneys for Plaintiff [____________]

13. Verification

14. Sources and References

• A.R.S. § 12-542 — Two-year limitation
• A.R.S. § 12-561 — Medical malpractice definitions
• A.R.S. § 12-562 — Medical malpractice actions; grounds
• A.R.S. § 12-2505 — Comparative negligence
• A.R.S. § 12-2506 — Joint and several liability abolished
• A.R.S. § 12-2603 — Preliminary expert opinion affidavit
• A.R.S. § 12-2604 — Expert witness qualifications
• A.R.S. § 12-2605 — Apology statute
• Arizona Constitution Article 2 § 31 — Damages caps prohibited
• Arizona Rules of Civil Procedure (current)
• Arizona Supreme Court Civil Jury Instructions (RAJI)
• Smith v. Myers, 181 Ariz. 11, 887 P.2d 541 (1994) (constitutional bar on damages caps)
• Kilpatrick v. Superior Court, 105 Ariz. 413, 466 P.2d 18 (1970)
• Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975) (vicarious liability)
• Purcell v. Zimbelman, 18 Ariz. App. 75, 500 P.2d 335 (1972) (corporate negligence)
• Hales v. Pittman, 118 Ariz. 305, 576 P.2d 493 (1978) (informed consent)
• Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 723 P.2d 675 (1986) (punitive standard)
• Rasor v. Northwest Hospital, LLC, 243 Ariz. 160 (2017) (§ 12-2603 cure provision)