Arizona Pre-Suit Medical Malpractice Framework (No Statutory Notice of Intent to Sue Required)

ARIZONA MEDICAL MALPRACTICE PRE-SUIT FRAMEWORK

(Arizona has NO statutory pre-suit notice-of-intent-to-sue requirement. The Preliminary Expert Opinion Affidavit under A.R.S. § 12-2603 is filed AFTER the complaint, with Rule 26.1 disclosures.)

Table of Contents

1. Statutory Landscape: Why No NOI Is Required in Arizona
2. Pre-Suit Investigation Checklist
3. Statute-of-Limitations and Tolling Worksheet
4. Medical Records and Authorization Protocol (HIPAA + A.R.S. § 12-2294)
5. Pre-Suit Expert Consultation Workflow (A.R.S. §§ 12-2603 / 12-2604 Compliance Plan)
6. Voluntary Pre-Suit Demand / Notice Letter (Optional Template)
7. Insurer Notification and Reservation of Rights
8. Apology-Statute Considerations (A.R.S. § 12-2605)
9. Mediation and Early Resolution
10. Filing Readiness Checklist
11. Sources and References

1. Statutory Landscape: Why No NOI Is Required in Arizona

Arizona is among the minority of states that do not impose a pre-suit notice-of-intent-to-sue requirement in medical malpractice actions. Counsel should be aware of the following framework:

Practical effect. Counsel may file a complaint immediately upon completing pre-suit investigation, subject only to (a) the two-year limitations period, (b) compliance with Ariz. R. Civ. P. 11 reasonable-investigation duties, and (c) the post-filing § 12-2603 preliminary expert opinion affidavit served with Rule 26.1 disclosures.

2. Pre-Suit Investigation Checklist

3. Statute-of-Limitations and Tolling Worksheet

Governing Statute: A.R.S. § 12-542(1) — "There shall be commenced and prosecuted within two years after the cause of action accrues, and not afterward, the following actions: 1. For injuries done to the person of another including causes of action for medical malpractice as defined in section 12-561."

4. Medical Records and Authorization Protocol

4.1 HIPAA Authorization Components

Plaintiff's records authorization must comply with 45 C.F.R. § 164.508 and Arizona Medical Records Act (A.R.S. § 12-2291 et seq.). At minimum, include:

☐ Patient name, DOB, address
☐ Specific description of records (dates, providers, facilities)
☐ Identity of recipient (counsel and firm)
☐ Purpose of disclosure ("legal review / potential litigation")
☐ Expiration date (generally 1 year from execution)
☐ Right to revoke and limitations on revocation
☐ Patient signature and date
☐ HITECH Act compliance for electronic PHI

4.2 Records Request Letter — Template

[FIRM LETTERHEAD]

[Date]

[Medical Records Custodian]
[Facility Name]
[Address]

Re: Patient: [____________]
DOB: [__/__/____]
MRN: [____________]
Dates of Service: [__/__/____] through [__/__/____]

Dear Records Custodian:

This office represents the above-named patient. Enclosed please find a HIPAA-compliant authorization signed by the patient (or legal representative) directing release of the complete medical record. Pursuant to A.R.S. § 12-2293 and 45 C.F.R. § 164.524, please provide within thirty (30) days (or such shorter time as state law requires):

1. Complete inpatient and outpatient medical records, including admission, progress, consultation, and discharge notes;
2. Operative reports, anesthesia records, and recovery-room records;
3. Nursing notes, flow sheets, MAR (medication administration records), and vital-sign records;
4. Diagnostic imaging studies (DICOM-format CDs) and reports;
5. Pathology reports and slides/blocks (pursuant to chain-of-custody);
6. Laboratory results;
7. Pharmacy records;
8. Itemized billing statements and UB-04s;
9. Incident reports, root-cause analyses, and quality-assurance documents to the extent discoverable;
10. ED triage notes and EMS run reports.

Please advise of any reasonable copying charges authorized by A.R.S. § 12-2295.

Very truly yours,

[Attorney Name], SBN [____________]

4.3 Records-Acquisition Tracking Table

5. Pre-Suit Expert Consultation Workflow

Although the § 12-2603 Preliminary Expert Opinion Affidavit is filed AFTER the complaint, counsel should retain a § 12-2604-qualified expert pre-suit to:

1. Evaluate the merit of the claim (Ariz. R. Civ. P. 11 / ER 3.1 obligations);
2. Identify the standard of care and likely breaches;
3. Confirm same-specialty and (where applicable) board-certification matching with the Defendant;
4. Confirm majority-of-time clinical-practice or accredited-teaching status during the year preceding the alleged occurrence;
5. Provide a written threshold opinion that can be converted into the § 12-2603(B) affidavit.

Expert Qualification Vetting Checklist (A.R.S. § 12-2604)

6. Voluntary Pre-Suit Demand / Notice Letter (Optional)

Voluntary Demand Letter Template

[FIRM LETTERHEAD]

[Date]

VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED
AND VIA EMAIL

[Risk Management / Claims Manager]
[Hospital / Provider]
[Address]

cc: [Provider's Malpractice Carrier]

Re: Voluntary Notice and Demand for Resolution
Patient: [____________]
DOB: [__/__/____]
Date(s) of Care: [____________]
Provider(s): [____________]

Dear Risk Manager:

This office represents [____________] in connection with serious injuries sustained as a result of medical care provided by your insured/employee on or about [__/__/____]. This letter is a voluntary pre-suit communication. Arizona does not require a notice of intent to sue, and this letter should not be construed as a statutory prerequisite to litigation. It is provided in the interest of early evaluation and possible resolution.

1. Summary of Care. [Concise factual chronology — 1 to 2 paragraphs.]

2. Standard-of-Care Concerns. Based on review of the medical records and consultation with a qualified expert who satisfies A.R.S. § 12-2604, we believe the care fell below the standard of a reasonable [specialty] practitioner in the following respects: [bullet list].

3. Causation and Injuries. As a direct and proximate result, [Patient] suffered [____________].

4. Damages. Past medical specials: $[________]. Anticipated future medical care: $[________]. Lost income / earning capacity: $[________]. Plus general damages for pain, suffering, mental anguish, and (if applicable) loss of consortium / wrongful death.

5. Demand. To resolve this matter without litigation, we demand payment of $[________] within forty-five (45) days of the date of this letter.

6. Reservation of Rights. This letter constitutes a settlement communication under Ariz. R. Evid. 408 and is inadmissible to prove liability. Your statements in response, including any apologies or expressions of sympathy regarding unanticipated outcomes, are subject to A.R.S. § 12-2605 and inadmissible as admissions of liability; however, statements of fault remain admissible.

7. Litigation Hold. Please preserve all records, electronic data, communications, peer-review materials, root-cause analyses, surveillance video, equipment maintenance logs, and credentialing files relating to this care. Any spoliation will be the subject of appropriate sanctions.

8. Statute of Limitations. Plaintiff reserves all rights, including the right to file suit at any time before the running of the applicable limitations period under A.R.S. § 12-542. No agreement to toll the limitations period is implied or requested unless separately documented in writing.

We look forward to your response within forty-five (45) days.

Very truly yours,

[Attorney Name], SBN [____________]
[Firm], [Address], [Phone], [Email]

7. Insurer Notification and Reservation of Rights

☐ Identify provider's professional-liability carrier (often via Arizona Medical Board records or facility's risk-management office)
☐ Send tender letter referencing policy if known
☐ Document all communications in writing
☐ Track applicable limits, retentions, and self-insured retention layers
☐ For governmental defendants, identify state risk-management coverage

8. Apology-Statute Considerations (A.R.S. § 12-2605)

Under A.R.S. § 12-2605, statements of apology, sympathy, condolence, or "general benevolence" by a health-care provider regarding an unanticipated outcome are inadmissible to prove liability. Statements of fault, however, remain admissible. Counsel should:

☐ Distinguish in correspondence between sympathy and admission;
☐ Document any provider statements verbatim and contemporaneously;
☐ Obtain witness affidavits where possible;
☐ Preserve any recordings or written communications.

9. Mediation and Early Resolution

☐ Consider voluntary pre-suit mediation through a private ADR provider;
☐ Maricopa County Superior Court offers Civil Mediation Programs post-filing;
☐ Joint stipulation to mediation can be filed early under Ariz. R. Civ. P. 16(d);
☐ Consider Rule 68 offers of judgment after filing.

10. Filing-Readiness Checklist

11. Sources and References

• Ariz. Const. art. 2, § 31 — Damages caps prohibited
• A.R.S. § 12-542 — Two-year statute of limitations
• A.R.S. § 12-561 — Medical malpractice definitions
• A.R.S. § 12-562 — Medical malpractice grounds
• A.R.S. § 12-2603 — Preliminary expert opinion affidavit (post-filing)
• A.R.S. § 12-2604 — Expert qualifications
• A.R.S. § 12-2605 — Medical apology statute
• A.R.S. § 12-2505 — Pure comparative negligence
• A.R.S. § 12-2506 — Joint and several liability abolished
• A.R.S. § 12-821 / § 12-821.01 — Government claim deadlines
• A.R.S. § 12-2291 et seq. — Arizona Medical Records Act
• Ariz. R. Civ. P. 26.1 — Initial disclosures
• 45 C.F.R. § 164.524 — HIPAA right of access
• Maricopa County Superior Court — Civil Department
• AZTurboCourt e-filing
• Smith v. Myers, 181 Ariz. 11 (1994) (confirm scope with the current constitutional text and claim facts)
• Rasor v. Northwest Hospital, LLC, 243 Ariz. 160 (2017) (§ 12-2603 cure provision)
• Seisinger v. Siebel, 220 Ariz. 85 (2009) (§ 12-2604 constitutionality)
• Baker v. University Physicians Healthcare, 231 Ariz. 379 (2013) (specialty matching)