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Affidavits / Certificates of Merit - Top
§ 12-2603. Preliminary expert opinion testimony against health care professionals; certification; definitions. A. If a claim against a health care professional is asserted in a civil action, the claimant or the party designating a nonparty at fault or its attorney shall certify in a written statement that is filed and served with the claim or the designation of nonparty at fault whether or not expert opinion testimony is necessary to prove the health care professional's standard of care or liability for the claim. B. If the claimant or the party designating a nonparty at fault or its attorney certifies pursuant to subsection H of this section that expert opinion testimony is necessary, the claimant shall serve a preliminary expert opinion affidavit with the initial disclosures that are required by rule 26.1, Arizona rules of civil procedure. If a party designates a nonparty at fault and certifies pursuant to subsection H [FN1] of this section that expert opinion testimony is necessary, that party shall serve a preliminary expert opinion affidavit within sixty days after filing the designation. The claimant or the party designating a nonparty at fault may provide affidavits from as many experts as the claimant or the party designating a nonparty at fault deems necessary. The preliminary expert opinion affidavit shall contain at least the following information: 1. The expert's qualifications to express an opinion on the health care professional's standard of care or liability for the claim. 2. The factual basis for each claim against a health care professional. 3. The health care professional's acts, errors or omissions that the expert considers to be a violation of the applicable standard of care resulting in liability. 4. The manner in which the health care professional's acts, errors or omissions caused or contributed to the damages or other relief sought by the claimant. C. The court may extend the time for compliance with this section on application and good cause shown or by stipulation of the parties to the claim. If the court extends the time for compliance, the court may also adjust the timing and sequence of disclosures that are required from the health care professional against whom the claim is asserted or the designated nonparty at fault. D. If the claimant or the party designating the nonparty at fault or its attorney certifies that expert testimony is not required for the claim or designation and the claimant, the health care professional or designated nonparty at fault disputes that certification in good faith, the claimant, the health care professional or the designated nonparty at fault may apply by motion to the court for an order requiring the claimant or the party designating the nonparty at fault to obtain and serve a preliminary expert opinion affidavit under this section. In the motion, the claimant, the health care professional or the designated nonparty at fault shall identify the following: 1. The claim for which it believes expert testimony is needed. 2. The prima facie elements of the claim.
3. The legal or factual basis for its contention that expert opinion testimony is required to establish the standard of care or liability for the claim. E. After considering the motion and any response, the court shall determine whether the claimant or party designating the nonparty at fault shall comply with this section and, if the court deems that compliance is necessary, shall set a date and terms for compliance. The court shall stay all other proceedings and applicable time periods concerning the claim pending the court's ruling on the motion to compel compliance with this section. F. The court, on its own motion or the motion of the health care professional or designated nonparty at fault, shall dismiss the claim against the health care professional or designated nonparty at fault without prejudice if the claimant or the party designating the nonparty at fault fails to file and serve a preliminary expert opinion affidavit after the claimant or designated nonparty at fault or its attorney has certified that an affidavit is necessary or the court has ordered the claimant or the party designating a nonparty at fault to file and serve an affidavit. Upon any allegation of insufficiency of the affidavit, the court shall allow any party a reasonable time to cure any affidavit, if necessary. G. A claimant or a party designating a nonparty at fault may supplement a claim or preliminary expert opinion affidavit with additional claims, evidence or expert opinions that are timely disclosed under the Arizona rules of civil procedure or pursuant to court order. A preliminary expert opinion affidavit may be used for impeachment only upon a finding of the court that the facts upon which the affidavit were based have not substantially changed and that the facts were known to the expert at the time the affidavit was prepared. H. For the purposes of this section: 1. "Claim" means a legal cause of action against a health care professional under §§ 12-561 through 12-563 or under title 46, chapter 4 or an affirmative defense or designation of a nonparty at fault to which all of the following apply:
(a) The claim is asserted against a health care professional in a complaint, answer, cross-claim, counterclaim, third party complaint or designation of a nonparty at fault. (b) The claim is based on the health care professional's alleged breach of contract, negligence, misconduct, errors or omissions in rendering professional services. (c) Expert testimony is necessary to prove the health care professional's standard of care or liability for the claim. 2. "Expert" means a person who is qualified by knowledge, skill, experience, training or education to express an opinion regarding a licensed health care professional's standard of care or liability for the claim.
Alternative Dispute Resolution (Pre-Trial) - Top
§ 12-583. Good cause hearing. A. In a hearing held to determine whether good cause exists not to try a claim under this article, the court shall consider the circumstances of the parties and all relevant factors, including, but not limited to: 1. Whether the risk that a lump sum award would be dissipated is insignificant. 2. Whether the amount of future damages is too small or the time over which the payments would be made is too short or the economic savings are not such as to warrant payment in periodic installments. 3. Whether a party responding to a claim for future damages is unable to fund a periodic installment judgment. B. If the objecting party fails to establish by clear and convincing evidence that good cause exists not to try a claim under this article, the court shall overrule the objection to the election. C. If the court finds that good cause exists not to try a claim under this article, the court shall set forth in the record the reasons for the finding.
Collateral Source Rule - Top
§ 12-565. Health care actions; collateral source evidence. A. In any medical malpractice action against a licensed health care provider, the defendant may introduce evidence of any amount or other benefit which is or will be payable as a benefit to the plaintiff as a result of the injury or death pursuant to the United States Social Security Act, any state or federal workers' compensation act, any disability, health, sickness, life, income-disability or accident insurance that provides health benefits or income-disability coverage and any other contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of income-disability or medical, hospital, dental or other health care services to establish that any cost, expense, or loss claimed by the plaintiff as a result of the injury or death is subject to reimbursement or indemnification from such collateral sources. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any such benefits or that recovery from the defendant is subject to a lien or that a provider of such collateral benefits has a statutory right of recovery against the plaintiff as reimbursement for such benefits or that the provider of such benefits has a right of subrogation to the rights of the plaintiff in the medical malpractice action.
B. Evidence introduced pursuant to this section shall be admissible for the purpose of considering the damages claimed by the plaintiff and shall be accorded such weight as the trier of the facts chooses to give it. C. Unless otherwise expressly permitted to do so by statute, no provider of collateral benefits, as described in subsection A, shall recover any amount against the plaintiff as reimbursement for such benefits nor shall such provider be subrogated to the rights of the plaintiff.
Compensation / Stabilization Fund - Top
Currently, there are no active compensation or stabilization funds.
Contribution - Top
§ 12-2506. Joint and several liability abolished; exception; apportionment of degrees of fault; definitions. A. In an action for personal injury, property damage or wrongful death, the liability of each defendant for damages is several only and is not joint, except as otherwise provided in this section. Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be entered against the defendant for that amount. To determine the amount of judgment to be entered against each defendant, the trier of fact shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant's fault, and that amount is the maximum recoverable against the defendant. B. In assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury, death or damage to property, regardless of whether the person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice before trial, in accordance with requirements established by court rule, that a nonparty was wholly or partially at fault. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of the named parties. Assessment of fault against nonparties does not subject any nonparty to liability in this or any other action, and it may not be introduced as evidence of liability in any action. C. The relative degree of fault of the claimant, and the relative degrees of fault of all defendants and nonparties, shall be determined and apportioned as a whole at one time by the trier of fact. If two or more claimants have independent claims, a separate determination and apportionment of the relative degrees of fault of the respective parties, and any nonparties at fault, shall be made with respect to each of the independent claims. D. The liability of each defendant is several only and is not joint, except that a party is responsible for the fault of another person, or for payment of the proportionate share of another person, if any of the following applies: 1. Both the party and the other person were acting in concert. 2. The other person was acting as an agent or servant of the party. 3. The party's liability for the fault of another person arises out of a duty created by the federal employers' liability act, 45 United States Code § 51. E. If a defendant is found jointly and severally liable pursuant to subsection D, the defendant has the right to contribution pursuant to this chapter. In an action arising out of a duty created by the federal employers' liability act (45 united states code § 51), a person or entity, other than an employee of the defendant, whose negligence or fault caused or contributed to the plaintiff's injury or death shall contribute to the defendant pursuant to this chapter. An action for contribution shall be adjudicated and determined by the same trier of fact that adjudicates and determines the action for the plaintiff's injury or death. The trier of fact shall adjudicate and determine an action for contribution after the court enters a judgment for the plaintiff's injury or death. On motion before the conclusion of the trial, the plaintiff is entitled to an award against the defendant for actual expenses the plaintiff incurred as a direct result of the defendant's claim for contribution. The expenses shall include reasonable attorney fees as determined by the court. F. For the purposes of this section: 1. "Acting in concert" means entering into a conscious agreement to pursue a common plan or design to commit an intentional tort and actively taking part in that intentional tort. Acting in concert does not apply to any person whose conduct was negligent in any of its degrees rather than intentional. A person's conduct that provides substantial assistance to one committing an intentional tort does not constitute acting in concert if the person has not consciously agreed with the other to commit the intentional tort. 2. "Fault" means an actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all of its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability and misuse, modification or abuse of a product.
Contributory or Comparative Negligence - Top
§ 12-2505. Comparative negligence; definition. A. The defense of contributory negligence or of assumption of risk is in all cases a question of fact and shall at all times be left to the jury. If the jury applies either defense, the claimant's action is not barred, but the full damages shall be reduced in proportion to the relative degree of the claimant's fault which is a proximate cause of the injury or death, if any. There is no right to comparative negligence in favor of any claimant who has intentionally, wilfully or wantonly caused or contributed to the injury or wrongful death. B. In this section, "claimant's fault" includes the fault imputed or attributed to a claimant by operation of law, if any.
Damage Caps - Top
Punitive
A.R.S. Const. Art. 2 § 31 Damages for death or personal injuries. 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.
HISTORICAL AND STATUTORY NOTES
Proposition 103, based on an initiative measure, proposing amendments to the Constitution of Arizona in Article 2 by amendment of § 31 and in Article 18 by amendments of §§ 5 and 6, relating to damages for death or personal injuries, contributory negligence and assumption of risk, and recovery of damages for injuries, was rejected by the electors at the November 8, 1994 general election as proclaimed by the governor on November 28, 1994.
Non-Economic
A.R.S. Const. Art. 2 § 31 Damages for death or personal injuries. 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.
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