New Arizona Law Boosts Burden on Patients Harmed by Medical Negligence

A new Arizona law, sb1018, has shifted the burden of proof in emergency care medical malpractice cases, making it more difficult for patients harmed by emergency procedures to prove their cases.

Previously Arizona law required the injured victims demonstrate that medical malpractice occurred by a “preponderance of the evidence.” Under this standard, an injured person needed only to demonstrate that malpractice was more likely to have occurred than not.

However, under the new law the injured victim must provide “clear and convincing evidence” that malpractice occurred. This is a much higher burden, requiring that the injured person convince the court that it is substantially more likely than not that medical malpractice occurred. This makes it even more difficult for a person injured by medical negligence to prove their case. No other type of civil claim in Arizona has such a demanding standard of proof.

Legal experts say the practical effect of this change will be to reduce the odds that a patient harmed by improper medical procedures will prevail in court. Critics of the law say that as a result of this change, patients harmed by incompetence or negligence will be stuck with both the medical repercussions of the substandard treatment and the financial burdens of future reparative surgeries and therapeutic procedures. In truth, a very large number of people who are injured by a medical mistake will not be able to bring a claim at all, for want of being able to find an attorney to help them. This is the first step in closing the door to the courthouse for an injured victim or their family.

Supporters of the bill claim it will help Arizona attract more emergency room doctors and nurses to the state by lowering the costs of medical malpractice insurance. This is absurd. There is no credible evidence that hospitals cannot attract physicians for the ER, and no evidence that this might otherwise be the case due to potential liability concerns. Indeed, a 2006 study of the shortage of emergency department personnel showed that fear of a lawsuit was a minor aspect of the problem. The research shows that long hours and relatively low pay (i.e. low health insurance reimbursement) play a much larger role in doctors’ reluctance to commit to emergency room care.

The liability protection bill was supported by lobbying efforts by the Arizona Medical Association and the Arizona chapter of the American College of Emergency Physicians. Of course. Doctors, like most people, do not like being told that they have committed a wrong. The role of the civil justice system is to not only to call them out on their wrongdoing, but also to make them (actually, their insurance company) pay for the mistake. However, if they can change the law to make the burden more difficult, they are one step closer to insulating themselves from any liability at all for their mistakes. This new Arizona law takes a big step in that direction.

Doctors don’t like to be told they made a mistake. Insurance companies don’t like to pay money to injured victims. Indeed, often they will do whatever they can to avoid it. Any legislative measures that are taken to curb YOUR rights to sue or recover for the wrongs of others are called “tort reform.” Insurance companies, the medical profession, large businesses and your Congress are trying to make people think that this is a good thing. They want you to believe that they cannot run their businesses in a normal way, or that they cannot compete with other businesses in foreign countries because of the legal system in the United States that holds them accountable for their wrongdoing.

Wait----you mean that our civil justice system in the United States is a means of holding wrongdoers accountable for their conduct???? And, doctors, insurance companies and Congress want you to believe that is a bad thing??? Of course they do, because it helps pass laws like this, which insulate doctors from responsibility for their wrongs and help insurance companies save money when they might otherwise have to pay.

The doctors and their insurers will hail this as a victory. Of course they will—it is a victory for them. But at the same time, as in most things, if there is a winner there is also a loser. The losers in this scenario are the citizens and residents of Arizona. For the most part, this has barred you from the courthouse should you suffer an injury in a hospital emergency room. It always seems OK when the person affected is the other guy. It never hits home until it actually hits home. When that happens, you will surely come to know that this is a bad thing. Unfortunately, it will be too late.


**If you have any questions or comments, please feel free to email Chris Zachar directly at CZachar@zacharlaw.com, or visit our website at http://www.ZacharLawFirm.com .

Tempe Family Agrees to Settle Case Against City

After their son was killed by a speeding Tempe police officer, Jim Barker and Kelly Wilcott sued the city. They have now decided to settle their case for $1.35 million.

Kyle Barker was crossing Baseline Road near Rural Road at 2:00 on the morning November 26, 2005. At the same time, Officer William Cullins was rushing westbound on Baseline to provide backup to another officer when he struck and killed Barker. (Cullins was charged with criminal speeding and issued a civil citation for which he later paid a fine of $491).

According to the autopsy report, Barker was well over the legal blood alcohol level, at .18. According to an internal police investigation, Cullins was driving 95 mph five seconds before the accident.

Cullins was suspended without pay for one month after the investigation determined that he was driving recklessly, and that he violated no less than three (3) city policies related to obeying traffic laws and the safe operation of vehicles. The suspension was the maximum allowed by the department.

We all know police officers have to make split second decisions, which at times may cause dangerous circumstances. However, the police and fire officials are subject to the same driving laws as are ordinary citizens. Their responsibilities include, at ALL times, to use reasonable care and caution, no matter what the circumstances. The same standards of reasonable care form the basis for tort or injury law in Arizona.

Some may place blame on Kyle Barker for being intoxicated, but, being intoxicated is not a criminal offense. However, if Kyle Barker’s level of intoxication was substantial enough that he could no longer act in a reasonable fashion to provide himself basic levels of protection, then he too might have been partially to blame here. The City would have to prove that Barker’s intoxication would have prohibited him from getting to safety had he been alerted to Cullins--by the cars lights and sirens—had Cullins been using them (which he was not).

This is another sad and preventable accident. We respect the police for what they do for us every day, however, we cannot lose sight of the fact that they are not allowed to perform their duties with disregard to the same laws that we are required to follow.


If you have any questions or comments, please feel free to email Chris Zachar directly at Czachar@zacharlaw.com, or visit our website at www.ZacharAssociates.com.

Skaters Exposed to Carbon Monoxide at Phoenix Ice Arena

Phoenix firefighters were called to the Arcadia Ice Arena at 38th Street and Thomas on Sunday night when someone complained of feeling sick. By the time the firefighters arrived, dozens of people were complaining they felt sick, and eight were actually vomiting.

The arena was evacuated due to high carbon monoxide levels. Officials are still investigating, but according to a police spokesperson, the machine used to resurface the ice was left running.

Arena management has indicated that the facility will remain closed until the environment is proven safe. OSHA is now investigating.

Although this may seem like a rare incident, apparently it happens often enough to have been reported by ESPN’s “E:60” as recently as April this year. According to E:60, nearly 200 people have been sickened in the last six (6) months by gases emitted from poorly maintained ice resurfacers. Well, Phoenix can add another 33 to that total. At present, only Minnesota, Massachusetts and Rhode Island have laws regulating air quality at indoor ice rinks.

It is unknown whether injury claims will be presented, or any legal action will result from any of those sickened by the incident. The value of any such claims would depend upon the nature and extent of the injuries.

Under Arizona law, this type of claim would be known as a “premises liability” claim. When injuries occur as a result of some dangerous or defective condition of someone else’s property or premises, the case is classified as “premises liability”. In this type of claim, an injured guest would have to prove that the Arena was negligent in the maintenance of its facilities. Leaving on the resurfacing machine with guests present in the Arena could certainly fit this bill.
At the Zachar Law Firm, we regularly meet with clients, evaluate and handle premises liability claims. These can be difficult claims. The old adage that says “if you get hurt on another’s property, they are automatically liable”----not true. Not even close to true. You must prove negligence. In this case, whether anyone was injured seriously enough to warrant a claim, and whether the Arena was negligent, remain to be seen.

$11 Million Awarded in Assisted Living Case

Lydia Scherrer’s life changed in 1996 when her husband, Earl, was in a car accident and suffered a severe traumatic brain injury. Earl was not expected to recover but after 16 months in a coma he began to show signs of life. His wife gave everything she could to help his recovery. She loyally committed many hours working with him every week. Unfortunately she had to work, as most of us do, and in the end she had to find a facility that could provide care 24/7.

Lydia continued to visit her husband regularly and on April 7, 2006 she transferred him to the 24-hour care facility, Liberty Manor Residency, in Phoenix, Arizona. One month later Earl was dead and the medical examiner decided it was due in part to several foreign objects found in his stomach and small intestines. These foreign objects included plastic bags, paper towels, and unopened catsup packets.

Lydia Scherrer sued Liberty Manor Residency for abuse and neglect, wrongful death, and punitive damages. She received the largest verdict ever awarded against an assisted living facility, $11 million.

We do our homework and we investigate and we ask all the important questions and we take tours and so on and so on and then we finally make what we think is an informed decision. We entrust these places with our loved ones and we walk away, hoping and praying that we have made the right decision, one of the most important decisions we will ever make. We walk away believing that the place we have chosen will provide everything they have promised. Yet, we continue to see too many of these tragedies in the news.

When you or a loved one is placed into a medical facility, ANY medical facility (hospital, nursing home, extended care facility, rehab, etc..), it is of paramount importance that you visit as regularly as you can, and that you keep your eyes and ears open. As lay people we understand little about medicine, but we truly don’t need to be health care professionals to often see when our loved ones are receiving less than adequate treatment. Everyone needs a friend, and when a medical inpatient, everyone needs an advocate---an extra set of eyes and ears to watch what is happening. Never be afraid to ask questions to gain a full understanding of policies and procedures. Never be afraid to voice concerns of the treatment of a loved one. If you believe that mistreatment is happening, demand to see the patient advocate or director of the clinic. If you are not satisfied, call the Arizona Attorney General’s office, which has the obligation and authority under Arizona law to investigate patient abuse. Lastly, keep in mind there are attorneys who specialize in personal injury and nursing homes cases, who can help during, and after neglect or abuse has occurred.

We hear and see too many stories of neglect and abuse of the infirm and elderly. As our population grows older, we need to be much more careful, mindful and observant of our loved ones who require these facilities. We never want the neglect or abuse to come to a lawsuit. Hopefully, this verdict will make it clear to these facilities that we will continue to hold them accountable for the care of our family members and loved ones.

Does Arizona Need New ATV Legislation?

Arizona has always been a great place for outdoor activities, including riding ATV’s. Over the years, the popularity of ATV’s has continued to increase followed by the increase of related injuries and deaths to children, yet state legislatures still have not enacted sufficient legislation to ensure their safety.

Children under 16 years old are legally allowed to operate an ATV on a dirt road as long as they wear a helmet. Over 136,000 Americans each year are injured or killed on ATV’s and more than 33% are under 16 years of age. That is over 45,000 children every year. Just this past weekend a 9-year-old died when the ATV she was on with her 11-year-old sister rolled. Her sister, who was thrown from the vehicle before it flipped, received non-life-threatening injuries.

ATV’s continue to get bigger and faster and therefore more dangerous yet parents are still allowing their children to operate the adult versions. I don’t know if that is what happened in this case but it is what happened to children in 90% of the cases in 2005.

Pediatricians, orthopedic surgeons, and other professionals want children under 16 to be banned from riding ATV’s due to how often they are injured or killed while doing so. Dr. T.S. Park, pediatric neurosurgeon-in-chief at St. Louis Children’s Hospital and his colleagues believe the following guidelines would reduce ATV-related injuries and deaths to children:

1. Banning children 16 and under from riding ATV’s.
2. Mandatory helmet laws.
3. Mandatory instruction and certification programs for owners and operators.
4. Prohibiting ATV’s from all public streets and highways.

Do we really need tougher legislation to tell us, as parents, when something isn’t safe for our kids? Children, especially those under 16, might and probably do need someone to tell them something isn’t safe for them. However, when we still have parents allowing their young children to operate these powerful vehicles despite all the warnings it seems maybe we do need the legislation.

Please exercise every caution when allowing your children to enjoy recreational activities and remember that even if your child has exhibited exceptional skills in operating ATV’s, the adult models are often too heavy and too powerful for children.

It is my opinion that we don’t necessarily need more laws, just more common sense. What do you think?