Mesa AZ | Medical Malpractice attorney Jason C. Chapman answers the following question:

Q: I am expecting my first baby any day now. My husband and I have a wedding to attend at a town up in the mountains a few hours away. There is a hospital there that is capable of delivering my baby, but it’s obviously not where my current doctor practices, and no doctor has ever treated me there before. I would only go to deliver my baby at that hospital if it were an emergency. Just in case such an emergency happens, is there anything you think I should know? I want to be as prepared as possible before we leave for the wedding.

A: There is at least one thing you should know, and it has to do with any medical malpractice suit that may arise from an emergency delivery such as you describe. This is not to say that you should plan on something going wrong in an out-of-town emergency delivery, but it the following is something you should be aware of.

To start, let’s discuss burdens of proof and standards of proof. A jury usually decides who wins and who loses a case. Typically, one party in the case will have the burden of proof. The party with the burden of proof is the party that must prove its case to the jury. The other party must defend itself against what that party is trying to prove. To determine if the party with the burden of proof has won its case (or a specific issue in the case), a jury must decide if it has proved its case to a sufficient degree.  This is where standards of proof come in. A standard of proof provides the jury with guidance on how much proof is necessary for the party with the burden of proof to win its case.

In a criminal case, the judge will tell the jury that the prosecutor must prove its case against the defendant “beyond a reasonable doubt.” In Arizona, this means that the jury must be “firmly convinced” of the defendant’s guilt. This is the highest standard of proof, and the hardest to reach.

In most civil cases the judge will instruct the jury that the party with the burden of proof has won its case if it has proved that its case is “more probably true than not true.” Here, the jury must find “that the evidence that favors that party outweighs the opposing evidence.” This is the lowest standard of proof, and the easiest to reach.

Falling in between the other standards in difficulty is “clear and convincing evidence.” This applies in certain civil cases, and sometimes only on individual issues within a case. Here, the party with the burden of proof “must persuade [the jury] by the evidence that the claim is highly probable. This standard is more exacting than the standard of more probably true than not true, but it is less exacting than the standard of proof beyond a reasonable doubt.”

Now, let’s move to your situation. In most medical malpractice claims stemming from the delivery of a baby, the party with the burden of proof (the one trying to prove that the delivery doctor or hospital did something wrong) must prove its claim is “more probably true than not true” to win. As discussed above, this is the easiest standard of proof to reach.

However, Arizona law changes the burden of proof for medical malpractice cases arising from the type of emergency delivery you describe. Unless the claim is proved by clear and convincing evidence, a physician “is not liable to the pregnant female patient, the child or children delivered or their families for medical malpractice related to labor or delivery rendered on an emergency basis if the patient was not previously treated for the pregnancy by the physician, by a physician in a group practice with the physician or by a physician, physician assistant or certified nurse midwife with whom the physician has an agreement to attend the labor and delivery of the patient.”

The law does provide one exception. It does not apply “to treatment that is rendered in connection with labor and delivery if the patient has been seen regularly by or under the direction of a licensed health care provider or a licensed physician from whom the patient’s medical information is immediately available to the physicians attending the patient during labor and delivery.”

In the unlikely event that you should need to go in for an emergency delivery, and you have reason to file a medical malpractice claim arising from that delivery, you need to know that the law discussed above will likely apply. Your standard of proof would go from “more probable than not” up to “clear and convincing evidence.” Of course, how large an effect this will have will depend on your specific case. Nonetheless, it is important that you know about this law before you travel. If you have any further questions on this subject, please call.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you or someone you know wishes to seek the help of an experienced personal injury attorney regarding Mesa AZ|Emergency Delivery or other personal injury matters, call Mesa AZ Personal Injury Attorney Jason C. Chapman at 480-461-5302 or contact him at jcc@udallshumway.com for a free consultation to discuss your rights and options.