Caring for an ailing child can be an overwhelming task for parents and family. While an injured or sick child’s at home needs may vary depending on the circumstances of each child’s case, in many situations the child’s needs may be beyond the parent’s abilities or skill set. Such instances may warrant a need for outside help and licensed healthcare providers to come into your home and care for your sick or injured child. Although a parent makes this decision with the best interest of their in mind, unfortunately sometimes a home healthcare provider can make your child’s situation worse, not better. This can especially be the case if the in home healthcare provider made an error or was negligent. In some cases, when a home healthcare provider’s conduct caused injury to your child, they may be legally accountable in what is known as a medical malpractice action for any resulting damages from which your child suffers.
A medical malpractice action is essentially a type of negligence case. In order to be successful in a claim for negligence, the party asserting the claim must show that they were owed a duty of care to prevent reasonably foreseeable harm, and that the duty was breached by the wrongdoer causing them harm or damages. In a medical malpractice case, the general standard of care, which is based upon the reasonableness of the everyday person, is changed to reflect a healthcare provider’s education and skill level, and how they are supposed to interact with their patients regarding things, such as, informed consent. The standard of care will vary depending on individual health care provider’s education and skill level, such that doctors will be held to the same standard as similarly situated doctors and nurses will be held to the same standard as similarly situated nurses. This follows for other licensed health care providers as well.
While medical malpractice actions find their roots in the common law, by enacting laws that govern the claim the Arizona state legislature has made a medical malpractice action in Arizona a statutory action. As such, the laws set forth who may be held accountable in a medical malpractice action, what constitutes a medical malpractice action, and what elements must be proven in order for a person asserting the claim to be successful. The development of Arizona medical malpractice law is unique to the state and each potential claim for medical malpractice, or negligence of a licensed healthcare provider, must be evaluated on an individual basis keeping state case law and statutes in mind.
At common law, a party asserting a claim against a healthcare provider for injuries sustained while under the provider’s care could chose to pursue an action against the healthcare provider for negligence or assault and battery. However, under Arizona law medical malpractice may only be asserted as a negligence claim, or on one of the grounds listed in Arizona Revised Statute 12-561.
Arizona Revised Statute 12-561 medical malpractice is defined as:
an action for injury or death against a licensed health care provider based upon such provider’s alleged negligence, misconduct, errors or omissions, or breach of contract in the rendering of health care, medical services, nursing services or other health-related services or for the rendering of such health care, medical services, nursing services or other health-related services, without express or implied consent including an action based upon the alleged negligence, misconduct, errors or omissions or breach of contract in collecting, processing or distributing whole human blood, blood components, plasma, blood fractions or blood derivatives.
As stated in Arizona Revised Statute 12-562, a medical malpractice action shall only be commenced on those grounds stated in A.R.S. 12-561. (See above.) In addition, A.R.S. 12-562 states that a claim for medical malpractice against a licensed healthcare provider cannot be based upon an assault and battery. Importantly, although Arizona law has done away with the cause of action against healthcare providers for assault and battery, A.R.S. 12-561 does include a cause of action in medical malpractice upon the grounds of failure to obtain informed consent, the cornerstone of an assault and battery case against a healthcare provider at common law.
Some actions that may constitute medical malpractice of an in home healthcare provider for your child can include things, such as:
- Failing to give required medications
- Administering unnecessary medications
- Giving injections, medications, or performing procedures without informed consent
- Failing to provide the contractually required at home care for your child
While these are some examples of what may constitute medical malpractice, there are other situations and circumstances under which a claim for medical malpractice may arise. Since medical malpractice cases are so fact specific and the law around medical malpractice can be confusing, it is prudent to contact an Arizona pediatric medical malpractice attorney if you suspect your child been injured as the result of a home healthcare provider’s conduct.
Standard of Care
As set forth by state law, in order for a licensed health care provider to be liable for damages resulting from medical malpractice, the injured party must prove that the injury resulted from the failure of a healthcare provider to follow the accepted standard of care, which occurs when:
- “The health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.
- Such failure was a proximate cause of the injury.” (A.R.S. 12-563.)
A proximate cause is defined as “that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred.” (Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 789 P.2d 1040 (Ariz., 1990), cited in Salica v. Tucson Heart Hosp.-Carondelet, LLC, 224 Ariz. 414, 231 P.3d 946 (Ariz. App., 2010).)
Establishing a Failure in the Standard of Care and Expert Witnesses
In order to prove that the healthcare provider breached the standard of care and committed medical malpractice an expert witness is generally required. This is so the jury can be properly informed of the relevant information when reaching their verdict and because the standard of care may vary depending on the healthcare providers education and whether the healthcare provider had any additional specializations or certifications. As such, in addition to other requirements listed in Arizona Revised Statute §12-2603. the expert witness who establishes the standard of care must be a similarly situated healthcare provider with the same specializations and, or certifications. (A.R.S. §12-2603.)
Furthermore, under Arizona law, a party in a medical malpractice action must certify, either yes or no, to whether they are calling an expert witness. (Arizona Revised Statute §12-2603.) A party certifying yes and calling an expert witness to testify on their behalf in a medical malpractice action must submit an affidavit to the court addressing the issues of standard of care and causation within 40 days of the defendant’s answer to the complaint, or 40 days after the final defendant’s answer if there are multiple defendants. (A.R.S. §12-2603.) When a party who certifies no, they are not calling an expert witness, the court may find that an expert witness is necessary and order them to file an affidavit with the required information, or the case can be dismissed without prejudice on defendant’s motion or of the court’s own accord. (A.R.S. §12-2603.)
In McGrady v. Wright, the court found that party alleging medical malpractice had provided sufficient evidence of the standard of care and causation when they had an expert witness who was also a doctor specializing in the same field with similar experience testify as to how other similarly situated doctors would have treated the patient, highlighting the differences in the defendant-doctor’s course of treatment and the standard of care. (McGrady v. Wright, 729 P.2d 338 (Ariz. Ct. App. 1
Who Can Be Held Liable For Your Child’s Injuries
There are a variety of parties who may be held responsible if your child suffers injury as the result of the conduct of an in home health care provider. Under A.R.S. 12-561 who may be held accountable in a medical malpractice actions is limited to licensed healthcare providers, including:
- A person licensed or certified by the state to provide health care, medical services, nursing services or other health-related services
- A corporation or institution licensed or certified by the state to provide health care, medical services, nursing services or other health-related services
- Officers, employees, and agents working under the supervision of a person, corporation or institution in providing health care, medical services, nursing services or other health-related
- A federally licensed, regulated or registered blood bank, blood center or plasma center collecting, processing or distributing whole human blood, blood components, plasma, blood fractions or blood derivatives for use by a licensed health care provider and includes the officers, employees and agents working under the supervision of the blood bank, blood center or plasma center. (A.R.S. 12-561.)
Having a sick child at home who needs medical attention, likely means they have been visited by people, such as doctors, nurses, physical therapists, pharmacists, and support staff. These individuals and others who come to your home to treat your child are generally held to the same levels of professional responsibility and duty of care as those who treat patients in more formal settings, such as hospitals or other institutions. As such, if your child is injured by a healthcare provider while being treated at home, your child and family may have legal recourse against them.
In situations where a child is already being treated for an illness or injury, it may be difficult to determine if subsequent ailments are a result of medical malpractice or the underlying condition. This is another area where expert medical testimony will be essential to establish the damages. In addition, it may be difficult to determine who is at fault when there may be multiple parties responsible for caring for your child. Arizona courts have adopted the substantial factor test in establishing liability when there are multiple parties who contributed to a victim’s injuries or damages. This allows a wronged party to recover even if they cannot identify exactly which defendant caused what harm, but all defendants shared in causing the result that harmed the victim. (Salica v. Tucson Heart Hosp.-Carondelet, LLC, 224 Ariz. 414, 231 P.3d 946 (Ariz. App., 2010).)
In addition, to medical malpractice claims against healthcare practitioners, A.R.S. 12-561 also identifies a cause of action for “breach of contract in the rendering of health care, medical services, nursing services or other health-related services.” This may mean a company or institution that fails to provide at home care treatment for a child when they are contractually obligated to so may share some liability for any resulting damages their breach of contract caused.
Statute of Limitations
The statute of limitations is the time limit a wronged, or harmed person or entity has to commence a legal action against those who caused them damages.
Under Arizona Revised Statute 12-542 a cause of action for medical malpractice as defined in section A.R.S. 12-561 must be commenced within two years after the cause of action accrues. This generally means that a person who was injured, or should have reasonably realized they were injured by a licensed healthcare provider has two years from the time of their injury to pursue a legal claim against the party causing injury.
However, there is an exception to this general rule for minor children. A minor child injured by a healthcare provider has until two years after their 18th birthday to file a medical malpractice lawsuit against the licensed healthcare professional who caused their damages. (See, Barrio v. San Manuel Div. Hosp., Magma Copper, 692 P.2d 280 (Ariz. 1984).)
A person injured due to medical malpractice may be able to recover compensatory and punitive damages.
Compensatory damages are intended to compensate the victim for the harm they suffered and “make them whole.” Compensatory damages may be awarded for things, such as:
- Past and future medical bills and treatment
- Pain and suffering, both physical and mental
- Loss of future earning capacity and lost wages
On the other hand, the intention of punitive damages is to punish the wrongdoer. Generally in a medical malpractice case, punitive damages will only be awarded when the wrongdoer’s conduct was particularly outrageous or egregious.
While some state legislatures have passed laws limiting the amount of money people harmed as a result of medical malpractice may be awarded by capping damages at a set amount, the Arizona Constitution prohibits the legislature from placing caps on the amount of compensation victims of medical malpractice can receive. Article 18 Section 6 of the Arizona Constitution states that “[t]he right of action to recover damages for injury shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”
No parent wants to see their child suffering. When a parent needs home health care for their child they seek assistance in hopes that their child will get better, and expect that the healthcare providers will competently treat their children in an effort to help them heal. When a home healthcare provider fails in their duties to your child, the consequences can be challenging. Mounting complications can overwhelm an already delicate situations.
At Thompson Law Firm, we do not believe that you should have to go through this difficult period by yourself. We are here to help you fight for your child’s rights and ensure that those responsible for wrongdoing are held accountable. To discuss your potential claim and speak with an experienced and compassionate Arizona pediatric home health care provider medical malpractice attorney contact Thompson Law Firm today by calling (480)-634-7480.