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FAQ’S

What is the Statute of Limitations?
How do I make a claim against state or local government?
How do I make a claim against the federal government?
What is medical malpractice?
What damages can be recovered for medical malpractice?
Can anything be recovered if medical practice causes the patient to die?
How does the Mercaldo Law Firm evaluate my medical malpractice case?
Do I have to pay my insurance company back out of a recovery for medical malpractice?
Do I have to pay back government benefits paid to me because of an injury?

What is the Statute of Limitations?

The Statute of Limitations is the body of law placing time limits on filing a lawsuit. Different types of cases have different time limits. Failing to file suit within those time limits prevents the injured person from filing suit at all.

The time limit starts when a claim accrues. A claim accrues when a person knows, or should know, that he or she has been injured by the wrongful act of another. Most medical malpractice claims accrue at the time of the negligent medical treatment that causes the injury. Some, like failure to diagnose a disease or injury, accrue when a person suffers an injury from the negligent treatment, even though this may be months or years after the medical negligence.

Arizona law requires suits involving bodily injuries, including most medical malpractice suits, to be filed within two years of the date the claim accrues. The time limit can change, however, depending on who committed the medically negligent acts. For further information about how the time limit can change, see and How do I make a claim against the federal government?

The most important thing to remember about the Statute of Limitations is that time is of the essence. Discuss your case with a lawyer as soon as you even suspect you may have been injured by any negligent act so that the lawyer can help you determine which statute of limitations applies to your case and that you take all actions necessary to protect your right to make the claim.

How do I make a claim against state or local government?

If any part of an injury was potentially caused by Arizona state or local government, including government employees, Arizona law requires the injured person to give written notice of the potential claim to the government agency and the responsible employees within 180 days of the date the claim accrues. For more information about when a claim accrues, see What is the Statute of Limitations? Failure to file an appropriate notice of claim within 180 days or with the proper parties will prevent the injured person from filing a lawsuit against any parties who do not receive the notice of claim.

The government or government employee has 60 days from the date on which they receive the written notice of claim to take action on the claim. After 60 days, the injured person can file a lawsuit against the government and any employees who received notice of claim. Arizona law requires the lawsuit to be filed no later than one year from the date on which the claim accrues.

The most important thing to remember about making a claim against state or local government in Arizona is that the time to do so is extremely short. Discuss your case with a lawyer as soon as you even suspect you may have been injured by any negligent act of a state or local government or its employees so that the lawyer can help you to identify the proper agencies and people who must receive notice of your claim and to make the claim in a proper manner.

How do I make a claim against the federal government?
What is the Statute of Limitations? Failure to properly file a notice of claim against the negligent federal agency within two years prevents the injured party from filing suit against the federal government.

Claims for injuries caused by the negligence of the federal government or federal employees are allowed by a federal law called the Federal Tort Claims Act or FTCA. The FTCA permits certain claims for injuries caused by the federal government or its employees and prohibits other claims. The FTCA requires the injured person to file written notice of claim with the negligent federal agency on a special government form within two years of the date the claim accrues. For more information on when a claim accrues, see

The FTCA does not permit an injured person to sue a federal employee directly for the employee’s negligent acts committed while working on behalf of the federal agency.

The FTCA gives a federal agency served with notice of claim six months to take action on the claim. If the agency does not take action within 6 months or denies the claim, the injured party can file a lawsuit, in United States District Court, against the agency. The FTCA provides special rules for deciding the case in court.

The most important things to remember about the making a claim against the federal government is that the time to do so is limited and the rules regulating the claim are technical and have to be followed exactly or the injured person can lose the right to make the claim. Discuss your case with a lawyer as soon as you even suspect you may have been injured by any negligent act of the federal government or its employees so that the lawyer can help you to identify the proper agencies that must receive notice of your claim and to make the claim in a proper manner.

What is medical malpractice?

A doctor commits medical malpractice by negligently providing medical services when that negligence causes or contributes to injuring the patient.

The injured party must first prove that the health care provider fell below the standard of care for similar health care providers in Arizona. That means the health care provider failed to act as a reasonable and prudent health care provider in Arizona would under similar circumstances. The health care provider can fall below the standard of care by doing an act that is wrong under the circumstances, for example providing the wrong treatment for an illness or injury, or by failing to act when action was necessary, like failing to properly diagnose a disease or injury.

The injured patient must then prove that the health care provider’s breach of the standard of care was a cause of significant injury to the patient. The health care provider’s error does not have to be the only cause of the injury, it only must contribute to it. For example, a doctor who fails to diagnose cancer in a patient does not cause the cancer, but the doctor can still be liable for malpractice because the delay in dealing with the cancer caused by the failure to diagnose it may lead to a significantly higher risk of death from the cancer than had it been diagnosed and treated properly.

Determining whether a health care provider may be liable for medical malpractice requires a mix of legal and medical evaluations. You should consult with a qualified lawyer if you suspect you have been the victim of medical malpractice so that the lawyer can thoroughly and properly evaluate the legal and medical issues involved in your particular situation. For more information about case evaluation, see How does the Mercaldo Law Firm evaluate my medical malpractice case?

What damages can be recovered for medical malpractice?

There are several items of damages that can be recovered in medical malpractice cases. The medical expenses for treating the injuries caused by the malpractice can be recovered. This claim can include medical expenses the injured patient can prove will be reasonably necessary to treat the injury caused by the malpractice in the future. The jury can consider whether the injured patient has health insurance and any payments made by a health insurer or government benefits and any claims a health insurer or the government may have to reimbursement for payments made for treatment made necessary by the malpractice. For more information on claims by health insurers for reimbursement, see, Do I have to pay my insurance company back out of a recovery for medical malpractice? and Do I have to pay back government benefits paid to me because of an injury?

Arizona law also permits recovery of lost income. An injured patient can recover money to replace income they would have earned at their job or business if the health care provider had not injured them. This claim can include income the injured patient can prove will probably be lost in the future because of the injuries caused by the malpractice. The jury can consider any insurance or government benefits paid for this loss as well.

A related damage is lost earning capacity. The jury can award damages if the injured patient can prove he or she is less able to earn a living because of the negligently caused injuries. For example, a carpenter who loses the use of one of his legs will be less likely to be able to obtain employment in the construction industry, because he will not be as able to perform the heavy labor required of carpenters than a normally healthy person. The injured carpenter may be able to obtain other employment that allows him to earn almost as much as he did when he was a carpenter, however, the jury can award him damages because he will have more trouble finding work because of his injuries.

An injured patient can also recover damages for pain and suffering. This damage is designed to compensate the injured patient for having to endure the pain and suffering from the injury caused by the health care provider’s negligence. This damage can be awarded for pain and suffering already endured and for that pain and suffering the injured patient can prove is reasonably likely to be suffered in the future.

Disfigurement and disability are damages related to pain and suffering. The jury can award damages for the anguish of a disfiguring injury, both past and future and for a disabling injury. Damages for disfigurement and disability are to compensate for the physical and emotional distress caused by disfigurement or disability.

Damages for pain, suffering, disability and disfigurement are assessed in light of the nature, extent and length of time the injury lasts. These damages usually account for the majority of damages an injured person recovers.

Sometimes a person is so severely injured that he or she cannot care for and support loved ones the way he or she did before the injury. In appropriate circumstances, Arizona law permits damages to be recovered by spouses, children and parents of negligently injured people for the loss of the love, care, affection, companionship and other pleasures of the family relationship that are lost because of the injury. For example, a minor child whose mother is disabled suffers a significant loss because the mother’s disability prevents her from being actively involved in raising the child. The child in that case can recover damages to compensate for that loss.

Determining which damages a person injured by medical malpractice may recover requires a careful examination of the facts, and the legal and medical issues involved in each case. You should consult with a qualified lawyer if you suspect you have been the victim of medical malpractice so that the lawyer can thoroughly and properly evaluate which damages you may be entitled to recover in your particular situation. For information about damages for death caused by medical malpractice, see Can anything be recovered if medical practice causes the patient to die?

Can anything be recovered if medical practice causes the patient to die?

Arizona law provides that certain family members can recover damages for the death of a loved-one that is caused by the wrong of another. The wrongful death statutes permit the spouse, parents and children of the person who died to recover damages for the death.

Arizona law permits the survivors to recover reasonable expenses of burial and medical expenses for the death causing injury or illness. The jury can consider any insurance or government benefit payments that have been made for these expenses when they award these damages along with any claims the insurance companies make for reimbursement of those payments. For more information on claims by insurers and the government for reimbursement, see, Do I have to pay my insurance company back out of a recovery for medical malpractice? and Do I have to pay back government benefits paid to me because of an injury?

Arizona law permits the survivors to collect the income that the person who died would have earned to support them. Lost income, however, does not include that part of the money the person who dies would have earned to support himself or herself. The jury can consider any insurance or government benefits paid to survivors in assessing this damage. For more information on claims by insurers and government benefits for reimbursement, see, Do I have to pay my insurance company back out of a recovery for medical malpractice? and Do I have to pay back government benefits paid to me because of an injury?

Arizona’s wrongful death statutes permit the survivors to recover for their grief, sorrow and suffering resulting from the loss of a loved-one. This type of damage compensates both past and future emotional suffering.

The survivors can also recover damages for the loss of the love, care, affection, companionship and other pleasures of the family relationship that are lost because of the death of a loved-one. For example, a surviving spouse suffers a significant loss from the death of a spouse because that person is no longer there to share the joys and burdens of raising a family and living a life together.

The wrongful death statutes have special rules for who can file suit for wrongful death, how that suit must be filed, and how any money recovered can be distributed to the survivors. You should contact a qualified lawyer if you believe you lost a loved-one because of the wrongful act of another.

How does the Mercaldo Law Firm evaluate my medical malpractice case?

When you call the Mercaldo Law Firm to seek advice on a medical malpractice case, you will speak with a member of our malpractice team. That person will discuss the important facts of your situation to determine whether it is a malpractice case that the Firm can help you with or whether other lawyers or agencies would more appropriately deal with your situation. Given the Mercaldo Law Firm’s commitment to place all of its resources into each malpractice case it takes, many potential cases are declined at this point. The Firm is always willing to recommend other capable lawyers for cases the Firm declines.

If the case is one in which the Firm might be able to help, an appointment is set for you to meet with at least one of the lawyers and with Barbara, our nurse paralegal to discuss the situation in more detail and to review any information you have already gathered about your potential case. During that meeting you will discuss medical and legal issues that might be involved in your situation and the fees and costs involved in pursuing a medical malpractice case. If you and the Firm agree that the case merits further investigation, you will usually be asked to sign a retainer agreement at this meeting.

One of the most important steps in evaluating a potential case is gathering medical records relevant to the treatment that might be negligent. This step can take anywhere from a few days if you have few relevant records and you decide to collect them, to several weeks if there are many records and the Firm orders them. No medical malpractice case can be pursued without reviewing the relevant records.

Once all of the records are gathered, Barbara begins the medical review of the case. She reviews the record thoroughly, researches appropriate medical literature, and draws some preliminary conclusions about what acts, if any, might have been medical malpractice. She also will begin a preliminary evaluation of the damages caused by the malpractice.

At this point a meeting will take place with our part-time medical doctor, nursing staff and the attorneys to evaluate the case. They will review the medical records and discuss these issues in some detail and reach a consensus about whether the case merits review by expert witnesses of the negligent health care provider’s specialty to determine whether the injuries were caused by medical negligence. We will then discuss our evaluation and recommendations with you and obtain your authorization for any expert consultations we recommend. This evaluation meeting costs you nothing. Some cases are declined at this time because of the Firm’s commitment to its clients injured by medical malpractice.

The Firm then submits the cases meriting further review to qualified medical experts for their opinions on the questioned care and on the cause of the injuries. These experts usually require payment. The Firm will usually advance payment of the expert fees for this review, but that expense ultimately remains the client’s responsibility. We will then inform you of the expert’s opinions. If the experts are willing to testify that the health care provider fell below the standard of care and that medical negligence caused the damages, we will usually recommend that litigation proceed.

Once a lawsuit has been filed on your behalf, the Mercaldo Law Firm will apply all of its resources to pursue your case vigorously to conclusion. We will normally advance all funds necessary to prosecute the case.

Do I have to pay my insurance company back out of a recovery for medical malpractice?

Arizona law establishes that you do not have to pay an insurance company for benefits it pays under your insurance policy because of the wrongful act of another. There are two exceptions to this rule in Arizona. First, medical payments benefits paid to you by an automobile insurance carrier that later pays you benefits under uninsured or under-insured motorist coverages can be credited against those uninsured or under-insured benefits in certain cases. Second, workman’s compensation benefits paid on account of an on-the-job injury must be repaid out of any recovery you receive from the person who hurt you.

If the policy of insurance is properly issued under a federal law governing employee benefits, the insurer may have a right to reimbursement from any recovery you receive for your injuries. The federal law that permits an insurance company to recover benefits paid is complicated and the policy must comply with all requirements of that federal law before the insurer can attempt to recover benefits paid to you. This federal law applies in place of Arizona law if the insurer complies with the federal requirements.

You should always consult with a qualified lawyer before signing anything in which you agree to reimburse an insurer for benefits paid under your policy.

Do I have to pay back government benefits paid to me because of an injury?

Each government benefit is distributed under its own particular rules and laws. As a result, some benefits must be repaid if you recover damages from a person who injured you, and others do not have to be repaid. The following discussion will highlight some common government benefits for payment of medical expenses or disability income. The rules may be different for other types of benefits. You should consult with a qualified lawyer to determine your rights regarding any benefits you receive when you recover damages for bodily injuries.

Arizona Health Care Cost Containment System (AHCCCS). AHCCCS is Arizona’s equivalent of the Medicaid program in other states. The state and the counties participate in paying medical expenses for indigent people under this program. AHCCCS also covers some disabled people. State law gives AHCCCS and the county health care agency a lien against the proceeds of any recovery for bodily injuries only to the extent that the AHCCCS system paid for medical expenses made necessary by that bodily injury. The law giving AHCCCS lien rights requires that AHCCCS and the county agencies properly file the lien to make it effective.

Medicare and medi-gap insurance. Medicare is a health care program for people 65 and older. Medicare also covers some disabled people. Medi-gap insurance is insurance Medicare recipients can purchase to fill gaps in coverage in the Medicare program. Federal law gives Medicare and medi-gap insurers a lien against the proceeds of any recovery for bodily injuries only to the extent that Medicare and medi-gap paid for medical expenses made necessary for that bodily injuries. Medicare and medi-gap insurers do not have to file the lien to make it effective.

Social Security Benefits. Neither death nor disability benefits paid by Social Security have any lien for repayment that can be enforced against the proceeds of a recovery for bodily injuries. These benefits are based solely on the payroll taxes paid by a worker and the worker’s employer and are paid regardless of the financial status of the beneficiaries.

The medical care liens for AHCCCS, Medicare and medi-gap insurance are controlled by complicated laws and rules. The agencies administering these programs will sometimes reduce their lien claims in appropriate cases. The agencies may also mistakenly claim liens for medical expenses that are not related to the bodily injuries for which you recover money. You should always consult with a competent lawyer to make sure that a lien applies to your particular situation and that you pay only as much as the law or the agency requires to satisfy the lien.

THIS WEB SITE IS INTENDED TO PROVIDE GENERAL INFORMATION TO CONSUMERS ABOUT ARIZONA MEDICAL MALPRACTICE ISSUES. IT IS NOT INTENDED TO BE A SUBSTITUTE FOR OBTAINING LEGAL ADVICE FROM A QUALIFIED LAWYER ABOUT YOUR PARTICULAR SITUATION. YOU MUST ALWAYS DISCUSS YOUR SITUATION WITH A QUALIFIED LAWYER TO BE CERTAIN THAT ALL LEGAL ISSUES APPLICABLE TO YOUR SITUATION ARE COMPLETELY AND PROPERLY EVALUATED TO PROT