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Negligence in Medical Malpractice

The Entrekin Law Firm represented a woman who was a victim of medical malpractice against her prior attorney. The attorney was found to have been negligent and the woman recovered $2,000,000. The question of whether a lawyer was negligent is important in almost all legal malpractice actions, so it is helpful to know how the term “negligence” is defined in Arizona legal malpractice law.

In Arizona, an attorney must act for his client in a reasonably careful and skillful manner, in light of his special professional knowledge. Martin v. Burns, 102 Ariz. 341, 343, 429 P.2d 660, 662 (Ariz.1967). A failure to do so constitutes “negligence.” However, it is not enough for a client to show that the attorney was negligent. The client must also show that the negligent conduct caused damages and must prove the nature and extent of the damages. Glaze v. Larsen, 207 Ariz. 26, 29, 83 P.3d 26, 29 (Ariz.2004).

In order to prove negligence, the client must generally hire an expert witness who will testify under oath that the conduct at issue was negligent. A.R.S. § 12-2602. An exception is made when the attorney’s conduct is such that a lay person would have no difficulty recognizing it as negligent. Id. Even then, the safe practice is to hire an expert. If the party bringing suit certifies such testimony is required, they must provide an affidavit from an expert witness with the disclosure statement required by Rule 26.1, ARCP. This affidavit is required in federal, as well as state, court. Kaufman v. Jesser, 884 F.Supp.2d 943, 955 (D.Ariz. 2012).

The test for whether an attorney failed to act in a reasonably careful and skillful manner is whether the attorney failed to use “such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in performance of tasks which they undertake.” Commercial Union Insurance v. Lewis & Roca, 183 Ariz. 250, 252 fn. 2, 902 P.2d 1354 (App. 1995).However, courts are usually quick to note that an attorney is not liable for negligence simply “because his or her client is dissatisfied with the result.” Molever v. Roush, 152 Ariz. 367, 371, 732 P.2d 1105 (App. 1986).

Supreme Court Rule 42 establishes the Arizona Rules of Professional Conduct. A violation of these rules can lead to a sanction by the State Bar, up to and including disbarment. However, while the “rules of professional conduct may provide evidence of how a professional would act, they do not create a duty or establish a standard of care as a matter of law.” Stanley v. McCarver, 208 Ariz. 219, 225, fn.6, 92 P.3d 849 (Ariz. 2004). That said, the Rules of Professional Conduct do at least provide some evidence that a jury may consider in determining whether a defendant attorney was negligent. Elliot v. Videan, 164 Ariz. 113, 116, 791 P.2d 639 (App. 1989).