Wrongful Death From a Missed Bacterial Infection in Arizona

Attorney Answer

You may well have a claim — but in Arizona a failure-to-diagnose case effectively cannot proceed without a qualified medical expert's written opinion, and two different clocks are running at once.

Start with the deadline. A.R.S. § 12-542 gives two years for actions for personal injury and for wrongful death. Those are two separate claims with two separate starting points, and that distinction matters enormously to your family.

Next, the requirement that decides whether a lawyer can take the case. Under A.R.S. § 12-2603, a claimant asserting a claim against a licensed health-care professional must certify in writing whether expert testimony is necessary. If it is — and in a missed-diagnosis case it always is — a preliminary expert opinion affidavit must be served with the initial disclosures, stating the expert's qualifications, the factual basis for the claim, the acts or omissions that violated the standard of care, and how those caused the damages. If the affidavit is not filed, the court shall dismiss the claim without prejudice, and must first allow a reasonable time to cure. That is less harsh than it sounds — dismissal is not final and you get a chance to fix it — but it explains why a firm will want to read the complete records and pay a physician to review them before agreeing to represent you.

On when the clock starts, Arizona law is more favourable than a bare reading of the statute suggests. In Walk v. Ring, 202 Ariz. 310, 44 P.3d 990 (2002), the Arizona Supreme Court held that a professional-malpractice limitations period does not begin to run merely because the plaintiff knows she was injured. The court expressly refused the defendant's proposed bright-line rule and asked instead whether the plaintiff had knowledge that would put a reasonable patient on notice to investigate whether the injury may be attributable to a professional's negligence — and it stressed that when discovery and accrual occurred is ordinarily a question for the jury, not something decided against a plaintiff as a matter of law. One important limit: Walk involved a living patient's own malpractice claim. It does not decide when a statutory wrongful-death action accrues, and Arizona wrongful death is a distinct statutory cause of action that generally accrues at death. Do not assume Walk buys your family extra time on the death claim.

On your fee question: Arizona medical malpractice cases are ordinarily handled on contingency. You pay no hourly fee, and the lawyer takes an agreed percentage only if there is a recovery. Case costs — expert review fees, records, depositions — are a separate category, are usually advanced by the firm, and are typically reimbursed out of any recovery. Ask for the fee agreement in writing and ask specifically what happens to the advanced costs if the case does not succeed, because firms differ on that point.

What you can do

1. Request the complete records in writing from every provider: emergency department, hospital admission, laboratory results, cultures, imaging, nursing notes, and the medication administration record. 2. Get the death certificate, and the autopsy report plus any cultures identifying the organism if an autopsy was performed. 3. Write out a dated timeline: when symptoms began, every visit, what she reported, what she was told, and what tests were and were not ordered. 4. Sort out who is legally entitled to bring the claim. A wrongful-death action can only be brought by specific family members or on behalf of the estate, so establish that early rather than after a lawyer is retained. 5. When you consult a lawyer, ask directly how they intend to satisfy A.R.S. § 12-2603 and how long an expert review will take. 6. Ask for the contingency fee agreement in writing before you sign anything.

⏱ Time limits apply. A.R.S. § 12-542 sets two years for both personal injury and wrongful death. For the malpractice claim, when the period started is governed by the discovery analysis in Walk v. Ring, 202 Ariz. 310, 44 P.3d 990 (2002), which is usually a jury question. The wrongful-death claim is a separate statutory action that generally runs from the date of death. Which dates apply to your family depends on your specific facts, so have them confirmed rather than estimated.