Hospital Shield Laws

Hospital Investigations and Confidentiality

By law, hospitals are required to conduct investigations when errors are committed.  The purpose is to “reduce morbidity and mortality and for the improvement of the care of patients provided in the institutions.”  (ARS section 36-445.)

“Such review shall include the nature, quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital or center.”  (ARS section 36-445.)

So, when something goes wrong in the operating room, the patient dies, or is horribly injured from a preventable mistake, the hospital has a statutory duty to conduct an investigation to find out what happened, why it happened, what steps can be taken to make sure it does not happen again, and to discipline any staff that was the cause of the mistake.

This is laudable on its face.  It is also meaningless to the public.

The same set of laws that requires the hospitals to conduct the investigations also protect the hospital from revealing to anyone the outcome of that investigation.

“All proceedings and records and materials prepared in connection with the review provided for in 36-445 …. are confidential and not subject to discovery…”

“The contents and records of the peer review proceedings are fully confidential and inadmissible as evidence in any court of law.”  (ARS section 36-445.01)

Members on the review committee who make decisions are immune from suit.  (ARS section 36-445.02)

So why do we have these laws?

The rationale is that the hospitals need to be free to conduct thorough investigations to take corrective action to avoid future preventable errors without fear of being held liable for the mistake that is being investigated.  Further rationale:  If the hospitals were afraid to investigate because the results of the investigation could be used against them, they will not investigate and the errors will continue.

Arizona laws are very anti-patient when it comes to medical mistakes.  The doctors and the hospitals have many laws that “shield” them from liability and “shield” investigations from being sued against them.

The only pro-patient language in this legal scheme is as follows:

“Nothing in this section relieves any individual, hospital or outpatient surgical center from liability arising from treatment of a patient.”

So, the hospital and the doctors are still liable if the patient can prove what happened.  The dilemma is that even if the hospital knows what happened, why it happened, and disciplined someone for a mistake by revoking or suspending hospital privileges, the patient will never know, because the investigation is shielded from discovery, and the committee members cannot reveal the outcome of the investigation to anyone other than the hospital board.  And- yes, the hospital board actions are non-discoverable as well.

The Rockafellow Law Firm has been litigating medical mistake issues since 1980.  With the right expert witnesses, and aggressive litigating, your medical case can be successful in spite of the hospital “shield law.”  We know how to work around these “shield laws.”

Please call us for a free consultation if you believe you have been injured by a medical mistake.

The Supreme Court: How a Case Can Make Its Way to the Highest Court in the Land

The Judiciary, headed up by the Supreme Court, is one of three branches of our government whose role is to put a check and balance on the powers of the Legislature (Congress) and the Executive (President) branches. A slew of highly politicized cases have brought this least glamorous of the branches into the limelight in recent years. The death of Justice Antonin Scalia, the Court’s longest-serving Justice, has further catapulted this respected institution to the forefront of the media, and the center of an ongoing war between Congress and the President. What is the Supreme Court’s function and how does a case make its way to the Court’s calendar?

There are three ways in which a case can eventually make its way to the Supreme Court.

1. An Appeal from one of the Court of Appeals in the Federal Court system

 There are eleven Courts of Appeal in the Federal Court System. Each Appellate Court serves a geographical region of District Federal Courts (See Map). If a Court of Appeals issues an opinion on a case, either party can petition the Supreme Court to hear the case. Roughly 2/3 of the Supremes Court’s calendar consists of Federal Appeals cases.

2. An Appeal from a State Supreme Court regarding an issue that is considered to be “Federal” in nature

Each State has a Supreme Court that may at times issue an opinion on a topic that is Federal in nature. In other words, the effects of the State Supreme Court’s opinion may reach beyond that State’s borders. For these cases either party may appeal the State Supreme Court’s decision to the Federal Supreme Court.

3. An “Original Jurisdiction” case where the Supreme Court acts as the trial court and no appeal is available.

Very few cases fall under this category. Where the parties are either two states or a state and the federal government, the Supreme Court is the only Court with jurisdiction.

The Supreme Court receives approximately 7000 petitions each year. If the Supreme Court decides that a petition may have merit, it sends a “Writ of Certiorari” to the Appeals Court who then sends the entire file to the Supreme Court. Next, the Justices and their clerks review these files and determine whether or not the case should be placed on the Court’s calendar. Most cases never make it this far. Most of those that do make it to this stage are eventually declined. Only a select few actually make it onto the Court’s Calendar. Oral Argument is held and the Justices begin the process of writing their opinions and dissents. That is a complicated process that I will not explain in this article. If a petition does not result in the Court hearing the case, then the ruling from the lower court stands. Of the 7000 petitions, the Court usually hears about 80 cases per session.

The Supreme Court plays in important role in our government. Unlike any other Court in our country, it’s opinions and decision apply to the entire country, both State and Federal. For more information, visit the Supreme Court Historical Society’s website.

 

 

Slip and Fall: Do You Have a Case?

If you trip and fall or slip and fall at a store and become injured, you are not automatically entitled to receive compensation from that store. The laws in Arizona require that you prove that the store had notice of the unreasonably dangerous condition that caused you to become injured. An injured person can prove that the store had notice three different ways:

1. Prove that one of the store’s employees created the dangerous condition. For example, if there is surveillance video of a forklift knocking over some liquid as it passes by a shelf and that liquid on the floor cause you to slip and fall, you have proved notice.
2. Prove that an employee of the store knew of the condition in time to fix it. For example, if you find out that one of the store employees noticed that there was grease on the floor, reported it, then took a break without attempting to remedy the dangerous condition, then you have proved notice.
3. Prove that the condition existed for a long enough time that a reasonable person should have known about the dangerous condition. For example, if you discover that a roof had been leaking for weeks in the location where you slipped and fell, you have proved notice.

This list is taken from the Revised Arizona Jury Instructions (Civil), 5^th Premises Liability 1. In addition to proving that a store had notice of the dangerous condition, you must also prove that the store or its employees either failed to take reasonable steps to warn customers of the hazard or failed to properly fix it. Therefore, if an employee is mopping up a spill and has a caution cone placed in the area, the store will likely not be held responsible for your injuries if you ignore those warnings and become injured. In the alternative, if a store knows their roof has been leaking for weeks and didn’t fix it and didn’t warn customers of the potential hazard, then the store is likely liable for your injuries.

Of course, slip and fall cases are rarely as simple as these examples. Instead, this genre of personal injury case can quickly become complicated and all of them require an experienced attorney to ask the right questions, request the right documents, and to win your case. The Rockafellow Law Firm is one of the few firms in Tucson that has had great success fighting for injured customer’s rights. If you have been injured in a slip and fall or trip and fall incident and you think someone else is to blame, call the Rockafellow Law Firm to schedule a free consultation.

Nonparty at Fault

Arizona is a comparative fault state. Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault. A.R.S. § 12-2506. For example, if you slip on water that has accumulated on the floor in your local grocery store and fall to the ground breaking your wrist, you might decide to sue the store to recover some damages. If a jury awards you $100,000 and then determines that the store is only 40% responsible for your fall, then you will only receive $40,000 from that store. Hopefully, Plaintiff’s attorney has named a second Defendant that is responsible for the other 60% of your injuries. Assuming the correct Defendants were named in the Complaint or added at a later time, Plaintiff will recover the full award.

This comparative fault scheme incentivizes Defendants to point the blame at other people to minimize the amount of money they must pay. In order to do this, the Defendant must name a nonparty at fault. To correctly name a nonparty at fault, the Defendant must name, with some specificity, who that party is and must state facts to prove that person is in some way responsible for the Plaintiff’s injury. Scottsdale Ins. Co. V. Cendejas, 220 Ariz. 281, 205 P.3d 1128 (App. 2009) . According to the Arizona Rules of Civil Procedure, Rule 26(b)(5), the Defendant must “provide the identity, location, and the facts supporting the claimed liability of such nonparty…” The Defendant must name this non-party within 150 days of their Answer being filed with the Court. Ariz. R. Civ. P. 26(b)(5).

If the Defendant files Notice of a nonparty at fault after the statute of limitation has run, it may cause significant trouble for the Plaintiff. In this situation, the Plaintiff may have overlooked this nonparty when filing the lawsuit and the time to do so has since passed. Meanwhile, the Defendant, who did get sued will try to place all of the blame on a person that is not involved in the lawsuit. This nonparty will not have to pay any money and so therefore will have no incentive to point the finger back at the named Defendant and may simply admit to fault. If the named Defendant can convince a jury that this nonparty who is protected from paying any damages to the plaintiff, is partially responsible for the Plaintiff’s injuries, then the Plaintiff will never recover that portion of the award.

Let’s go back to the initial example. If the Jury awards $100,000 and determines that the Defendant is 40% responsible and the Non-Party is 60% responsible, then Plaintiff will only recover $40,000 in total.

It is therefore extremely important that all parties are correctly named in the initial lawsuit or that the lawsuit is filed with enough time to allow the Defendant 150 days to name a Nonparty at fault and still be able to amend the Complaint to name that party and bring him/her into the lawsuit. Failure to do so may result in some rather dire consequences for the Plaintiff.

The importance of hiring an experienced Law Firm to protect your interests is of utmost importance in any case, cccc especially when there is the potential for multiple Defendants.

Lawsuit Time Limits

In the Civil realm of the law, most claims have a statute of limitations. This means that your right to file a lawsuit against a person or entity expires after a certain amount of time. The justification for these time limits is to allow businesses and people to go about their business without having to worry about being sued for something that happened fifteen years ago. It also is meant encourage people who are going to file a lawsuit to do so quickly when memories of the events in question are still fresh and when the important people involved in the incident are available to testify.

Most negligence claims have a two-year statute of limitations. This means that if you are going to file a lawsuit, you must do so within two years of the date you discovered or should have discovered that you were injured. If, for example, you discover a year after your surgery that the surgeon left behind some debris in the surgical site, then your two years begins to run on the date of that discovery. If your case has not settled within two years, you must file suit to preserve your claim. If you miss the deadline, your case is over.

Two years is a fairly reasonable time frame that, for most cases, is sufficient time to have a good understanding of the extent of one’s injuries. However, in the state of Arizona, if the potential defendant is a public entity, public employee, or public school, you must file a Notice of Claim against that entity within 180 days of discovery of the injury. A.R.S. § 12-821.01. This diminished time frame places a huge burden on the injured person. Many people only discover this rule after it is too late. If you fail to file this Notice of Claim, your right to collect any money from said public entity completely evaporates.

There are strict rules that must be followed in order to comply with the Notice of Claim statute. One must serve the Notice on the correct person within that public entity or else the claim will be tossed. You must name a sum certain that you will accept to settle said claim or else it will be deemed invalid. If the Notice is invalid and your deadline has expired, your claim has expired with it. The stated purpose of this statute is to allow public entities the ability to know what claims are outstanding and to give them the ability to settle valid claims early on, without the need to litigate. However, the real purpose is to reduce the number of lawsuits. By making people jump through these extra hoops, public entities avoid legitimate claims simply because the law makes it more difficult to file a valid claim.

Once you have successfully filed the Notice of Claim, you must then file your lawsuit within one year of the discovery of the injury. This is yet another attempt to reduce lawsuits not by increasing safety, but by raising hurdles to successfully bring a valid claim against a public entity. The Notice of Claim statute is one of many potential landmines that could catch an injured party by surprise.

The Rockafellow Law Firm has the knowledge and experience to navigate these laws to make your case a success. Call for your free consultation today.

Diminished Value

Diminished Value

Here’s the scenario: You are driving along in your two-year old mint condition Chevrolet Suburban when suddenly a negligent driver decides to turn left and BAM! There’s a collision. This event triggers three separate and distinct claims against that negligent driver: 1) Personal Injury, 2) Property Damage, and 3) Diminished Value. Everyone knows about the first two claims. It costs money to repair your car and it costs money to repair your injuries. But Diminished Value is a lesser-known aspect of the law.

Let’s define Diminished Value as it pertains to your newly damaged vehicle. Diminished Value is the difference in the value of your post-repair vehicle when compared with it’s value pre-accident. In other words, how much value has your car lost because it has been in an accident, even if the repairs were made by a qualified body shop?

Let’s say a dealership has two white 2013 Suburbans for sale with exact same options, both in very good condition. The only difference between the two is that one has been in an accident requiring $10,000 in repairs. How much less would that previously damaged car have to cost in order for you to pick it over the non-accident car? $1000? $4000? $8000? This is diminished value. When your $30,000 Sonata or 3-Series, or Explorer drops in value through no-fault of your own, that is a compensable claim. Some states do not recognize the claim. Some states have strict formulas that must be used. Some states require that you first sell the car in order for the claim to be valid. However, in Arizona, as long as you have an expert evaluate your vehicle and give his opinion regarding the loss in value, you have a valid claim.

Diminished value claims are only worth pursuing on newer vehicle with no prior accidents. The older the car, the less diminishment in value. These claims can be filed along side a personal-injury claim, or as stand-alone lawsuits. The insurance companies fight them hard. The last thing they want is to let this secret out into the open. The Rockafellow Law Firm will fight to get you paid for the diminished value of your vehicle. If you or someone you know has a diminished value claim, call the Rockafellow Law Firm today to schedule a free consultation. The insurance companies are not going to voluntarily offer your money. You need an experienced lawyer to get the money you deserve.

Insurance Bad Faith and Your Stolen Car

Insurance Bad Faith and Your Stolen Vehicle Claim

We purchase insurance to protect us from many unforeseen and unwelcome possibilities, including vehicle theft. Lately, insurance companies seem to be investigating stolen car claims with additional scrutiny and increasing skepticism. This may very well be considered bad faith.

In 1981 Arizona adopted the independent bad faith claim. In Noble v. National American Life Insurance Company, the Arizona Supreme Court held there is an implied duty in all insurance contracts that the insurance company must act in good faith when handling the claims of its insured. This case granted an individual the right to sue their insurance company if that insurance company was acting in bad faith.

But what does it mean for an insurance company to act in bad faith? In Arizona, the insured must prove that the insurance company did not have a reasonable basis for denying a claim. In determining whether an insurance company acted in bad faith, a jury must decide whether the potential harm to the insured person outweighed any potential debatability of the claim’s validity.

An insurance company may commit bad faith by refusing or delaying payment to their insured for a stolen vehicle. It is now common that insureds are asked to jump through many hoops in order to prove they played no role in the theft of their own vehicle. Insurance companies demand multiple years worth of tax returns, employment records, cell phone records, bank accounts and more. The list is so exhaustive that it often takes many months before an insurance company is satisfied. By requesting a seemingly endless supply of personal documents, an insurance company is looking for the slightest shred of evidence that the insured was in dire financial straights and so arranged for the car to be stolen in order to collect money. As this is fraud, the insurance company will often deny the claim. Even if the claim is eventually paid, it often takes a year or more of investigation. This places an incredible hardship on an individual who has been without a car for such a long period of time.

As stakeholders continue to demand higher and higher profits from massive insurance companies, these companies continue to look for ways to reduce payouts to their customers. With this increased scrutiny, bad faith cases are surely set to rise in the next few years.

Claims against an insurance company are often considered both a contract and tort claim. This means that damages can be very large. Juries will often have no problem awarding substantial sums to someone they believe has been wronged when they know the money will come from a massive insurance company.

Contact the Rockafellow Law Firm today if you feel an insurance company is acting in bad faith.

Settlements for Minors

Settling a Personal Injury Claim for a Minor

Minor Personal Injuries

A minor is legally incapable of making a determination of whether or not to settle a claim. Therefore, a judge of the Superior Court must approve any personal injury settlement on behalf of the minor if the amount is $10,000 or more. This adds time, cost, and complexity to a settlement. However, there is good reason to requiring Court approval.

Arizona has a vested interest in protecting a minor when a settlement is reached. While an attorney may work with the minor’s parents throughout a case, at the end of the day, it is the minor who suffered the injury and the pain and suffering. The Court approval requirement is meant to protect a minor from a settlement that may not be made in that minor’s best interests. The Court is meant to act as an extra layer of protection to avoid the minor being taken advantage of by accepting a low settlement or by funneling the money to other interests.

In addition, any settlement funds going to the minor must be placed in a conservatorship. This means a person must be assigned conservator to look after the funds until the minor reaches the age of eighteen (majority). The funds can be placed in a restricted, interest-bearing account. This account can either be left to accrue interest or can be managed by the conservator. The conservator can be anyone, so long as they meet certain requirements by the Court. Typically, for smaller sums, a parent is assigned to be the conservator. A probate attorney can be hired to manage larger accounts. The conservator must be bonded and must report to the Court annually to ensure that the money is being properly managed. The money can be used for non-essential items. For example, if the minor wants to go to summer camp, the conservator parent can submit a request to the Court to withdraw money for that purpose. If an attorney has been hired to manage the money, that attorney can determine whether the request is reasonable and can disperse the money accordingly without Court approval. The money can’t be used for clothing, shelter, or food, as parents are expected to pay for these essentials.

Settling a minor’s personal injury claim can be complicated and time consuming. However, these safeguards exist to protect the minor’s best interests. The Rockafellow Law Firm has more than forty years of experience with minor’s personal injury claims. We can help guide the minor and parents through the process.

Contributory Negligence

Negligence is commonly defined as the failure to exercise the care and caution that a reasonably prudent person would in the same or similar circumstances.

Negligence forms the basis for a majority of the claims that the Rockafellow Law Firm handles. Some claims involve a negligent driver causing a collision, others involve the negligent design of a roadway that caused a pedestrian to be struck. Some of our clients were injured through the negligence of a doctor.

In a simple rear-end collision, negligence is often implied and nearly always assigned only to the driver who rear ended another car. However, when more than one person is at fault in an incident, juries must use the doctrine of comparative negligence.

In Arizona, we follow a pure comparative negligence scheme. This means that a negligent person is only responsible for damages and injuries proportional to his percentage of fault. Therefore, if three people cause an injury and the jury decides that each individual is 33% at fault, then each defendant must pay the injured party 33% of the total award. If the injured person is in any way at fault, his award is reduced by his percentage of fault. A.R.S. § 12-2506 .

A jury can assign fault to parties not involved in the lawsuit. This makes it important to name every potential defendant in your lawsuit. Otherwise, a jury could potentially find a non-party to be at fault and the injured party would then have no one from which to collect the award.

Modern Streetcar Carnage

Are these warning signs sufficient?

Perhaps the cornerstone of downtown Tucson’s current growth spurt, the installation of the modern streetcar is being hailed as a boon to the downtown economy and a catalyst for future growth. No one will be able to measure the economic growth this modern streetcar line will bring to the economy until at least the end of next year as cars are not expected to be running until midsummer of 2014.
However, some negative effects of the modern streetcar have already begun to appear. Beyond the stress placed on businesses along the route that have faced months of closed streets and limited access to their store fronts, cyclists have started to feel the pain of having dangerous tracks set into some of Tucson’s most popular biking routes.
A lawsuit has already been filed against the city by a cyclist who suffered a traumatic brain injury from a fall on the tracks. The problem occurs when a narrow bicycle tire becomes wedged in the groove of a track inset into the road. Once this occurs, it is all but a certainty that the rider will be thrown from her bike.  Similar lawsuits have been filed in Seattle and many known incidents have occurred in Portland, both cities that also feature modern streetcars.
The City has responded by installing permanent warning signs as well as a healthy spattering of green paint designed to aid riders over the tracks at a safer angle. However, despite these efforts to warn, more tracks have undoubtedly created a higher probability of bicycle crashes along this route. Unfortunately, some of the carnage could have been avoided had the City chosen to use a style of track that is safer for cyclists, albeit more expensive to install.
Who is responsible for these crashes and the injuries they cause? The law basically places responsibility on the person best equipped to handle these dangers. When a dangerous condition is “open and obvious” the city is not responsible for injuries caused when someone fails to recognize the danger and becomes injured. Presumably, one could argue that tracks, simply by existing, are not an open and obvious danger to inexperienced cyclists that frequent the streets of downtown Tucson and the University area. However, the City, while slow to do so, has now erected permanent warning signs along the route alerting riders to the danger of the new tracks.  As the tracks are new and so is litigation, it is still unclear if the City could be liable for failing to use a track style that is safer for cyclists, knowing the tracks would be installed over some of Tucson’s most popular cycling streets.
Stay safe, be aware, and always cross the tracks at an angle as close to perpendicular as possible.  Most importantly, wear your helmets. If you are injured in a bicycle crash caused by these tracks, call the Rockafellow Law Firm today.