Even the most skilled doctors do commit acts of negligence that can result in injuries. If you are a victim of medical negligence, it is vital to understand that you could qualify for compensation for the suffering and loss you have endured. However, most health care facilities rarely accept responsibility without a fight. That is why it is crucial to have a proficient attorney to help you seek compensation. We at the Orange County Personal Injury Attorney have got you covered. We have many years of experience and goes above and beyond fighting for our clients.
What Constitutes Medical Malpractice?
Also known as professional negligence, medical malpractice is the omission to act or a negligent act by a medical practitioner in offering professional services, which is the proximate cause of a wrongful death or personal injury. As long as the services are within the scope of services for which the medical practitioner is licensed and that aren't within any limitations imposed by a licensed hospital or licensing authority, the person could still be liable for your injuries.
Medical malpractice law applies to all healthcare facilities and providers licensed in California. This includes nurses, doctors, chiropractors, anesthesiologists, podiatrists, physical therapists, psychologists, hospitals, pharmacists, laboratories, and clinics.
Proving Medical Malpractice
A health practitioner is negligent when they fail to use the duty of care or standard of care that other reasonably cautious healthcare providers would use in similar circumstances. This negligence must then result in injury for you to file a medical malpractice case.
A standard of care refers to the accepted practices, procedures, degree of knowledge, care, and skill that all healthcare providers in a given area would use when treating a patient with a given health condition. The standard of care varies depending on the patient's overall health and age.
It isn't enough to prove that the treating doctor didn't comply with the standard of care. You should also present evidence that the breach directly caused the injury. This is an overwhelming step, and more often than not, it requires more than one witness as well as an expert witness.
In Layman's language, it's adequate that the results of a specific diagnosis or treatment were wrong. There should have been something that the medical practitioner should or shouldn't have done, which injured the patient.
You can depend on resipsa loquitur. Under this legal doctrine, negligence happens when the equipment was within the accused control, and an injury is one that typically does not happen without being negligent.
It is worth noting that the law broadly defines the term treatment in professional negligence cases. That means treatment goes beyond issuing prescription medication or medical care. Treatment involves the whole medical process.
Other Basic Requirements for a Claim
Existence of a doctor-patient Relationship
You should demonstrate that you had a physician-patient relationship with the physician you're suing. That means you hired the physician, and the physician agreed to be hired. You cannot sue a physician whom you heard advising on a TV show. Often, the issue of whether the relationship exists arises when the consulting doctor did not treat a patient directly.
The Injury Resulted in Specific Damages
Even if it's obvious that the physician delivered below the standard of care, you cannot file a malpractice claim if you did not sustain any injury. Common forms of harm you can bring legal action include mental anguish, physical pain, lost income, lost earning capacity, and additional medical expenses.
Different Categories of Medical Malpractices
There are several situations that can cause a malpractice lawsuit from a physician, leaving a sponge inside a patient's womb after surgery to telling a patient that a prescribed medication might lead to a heart condition. Many medical malpractice lawsuits in California fall in one of the following categories:
Improper Treatment
If a doctor treats you in a manner that no competent physician would, then you have a claim. Likewise, it is malpractice if the physician chooses the appropriate treatment but administers it wrongly.
Failure to Diagnose
If a qualified doctor discovered your health condition or made a different diagnosis would have resulted in better results than the one realized, then you have a feasible claim.
Failing to Warn Patients of Known Complications and Risks
Medical practitioners have a responsibility to warn their patients of known complications and risks of a treatment or medical procedure (duty of informed consent). If a patient who is well informed of risks and complications, would have chosen not to undergo a procedure, the physician will be accountable for malpractice in the event the procedure injures the patient.
What are the Special Requirements in Medical Malpractice Claims?
California, like any other state, has special procedures and rules for medical malpractice claims. Therefore, it is essential to know and follow them.
Lawsuits Should be Filed Immediately after the Injury
In California, you should file your claim immediately. Failure to bring the lawsuit within the statute of limitations, the judge will dismiss your case irrespective of the facts.
Special Medical Malpractice Review Panel
Another requirement is that you're supposed to submit your case to a review panel. The panel will listen to arguments, analyze expert testimony and evidence, and finally decide whether medical malpractice has taken place or not.
It is crucial to note that the decision made by the panel doesn't replace the medical malpractice claim. Also, the panel does not award damages. Instead, it is a hoop that you should go through before going to a court of law. The panel's findings could be presented in court, and often, the judge relies on the panel's verdict of no malpractice to dismiss a claim before it proceeds to trial.
Expert Testimony is Mandatory
The opinion of an expert is an integral feature in every medical malpractice claim. Usually, a competent expert is required at the trial while an expert affidavit or testimony is needed at the review panel proceedings.
There are few circumstances that expert testimony isn't needed like when a sponge is left in a patient's body after an operation.
Damage Awards Limits
California cap or limit the total amount of damages that a plaintiff can receive.
Special Notice Requirements
You should give your physician a notice of claim before bringing the lawsuit.
What Damages Can You File a Claim For?
To be awarded damages, you should prove that the malpractice led to damages, and a dollar value can be put on your damages. Three types of damages awarded in a medical malpractice lawsuit include:
General Damages
These are damages whose nature cannot have a fixed price. Common examples include:
- Loss of future earning capacity
- Loss of enjoyment
- Mental and physical pain and suffering
Each case is unique, and there are no laws on how the damages amount should be determined. To reach the total dollar value, you should present evidence about your loss of enjoyment, pain, and suffering, among other damages suffered.
Additionally, an expert will testify about the potential impact of the injury. If the plaintiff is young and will be impaired for long, an expert testimony estimating the total value of lost earning capacity will come in handy.
Notably, general damages are not available for injuries that existed before the medical malpractice or pain and suffering which a pre-malpractice hurt will trigger in the future.
Punitive Damages
You may be in a position to be awarded punitive damages if the treating doctor knowingly acts destructively or egregiously. For instance, a surgeon leaves a surgical towel in the patient's stomach during surgery as a way of creating a reason for another operation to get rid of the towel.
The jury determines the number of punitive damages. However, it can't exceed many times the amount of both general and special damages.
Special Damages
Special damages compensate for the quantifiable expenses such as past missed work and medical expenses. Although there is guesswork involved, especially in determining future medical bills, special damages are more exact compared to general damages.
Expert testimony could still be very instrumental but submitting a copy of medical bills is enough depending on the case's facts.
Damages Awarded If the Patient Dies
Two types of damages can be awarded should the malpractice cause a patient's death. They include:
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Survival Statute
These damages permit the deceased's estate or heirs to be compensated for damages that happened from the date of malpractice to the patient's demise. Generally, these damages include everything permitted in a medical malpractice lawsuit had the deceased survived, apart from damages linked with the future such as earning capacity.
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Wrongful Death Statute
This type of damage is tailored to reimburse the deceased's family for future monetary loss. The process of determining the total amount is thorough compared to the simple determination of future wages. This is because it puts factors such as the deceased's working, saving, and spending habits into consideration.
Only the following can file a wrongful death lawsuit in California:
- Spouses
- Children or grandchildren if the deceased's children are also dead
- Domestic partners
- Any person entitled to the deceased's property under California's intestate succession laws
- Minor children who depend on the decedent for more than fifty percent of their financial support
Are Damages Capped or Limited in Medical Malpractice Claim?
California limits the number of damages that a plaintiff can receive after the judge has found the patient's physician guilty. The medical malpractice damage caps can be found in the Medical Injury Compensation Reform Act (MICRA). Passed in 1975, MICRA has a $250,000 cap on non-economic damages in malpractice lawsuits.
Non-economic damages are damages that represent losses that can't be easily measured using a dollar value. They are designed to compensate for the loss of enjoyment of life, discomfort, anxiety, the psychological effect of disfigurement or scarring, and pain and suffering.
It is worth noting that California does not limit the amount of compensation for both future and past medical expenses made necessary by the medical malpractice as well as lost income. This is because these losses are economic damages, and MICRA's cap does not affect them.
Moreover, the MICRA's 250,000 cap does not have a provision that puts inflation into account. It is the same amount that was enacted in 1975.
Pure Comparative Negligence
There are instances a respondent may claim that you're partially accountable for causing your injuries, for instance, when you fail to follow your physician's instructions. If your case goes to trial and you are found to be partially accountable, that finding will reduce the total amount of damage award.
California uses a pure comparative negligence rule. That means if the judge rules that you bear some negligence as far as the injury, medical condition, or illness is concerned, the total amount of damages will be reduced by the percentage of your fault.
Statute of Limitations
Every state has its deadline for bringing medical malpractice claims, set by statutes of limitations. These rules are complicated since they have different deadlines. The California statute of limitations for medical malpractice lawsuits is found in the California Code of Civil Procedure 340.4 and 340.5.
A professional negligence claim in the state of California should be filed within three (3) years after the hurt or a year after a patient finds out or through reasonable diligence ought to have learned about the hurt (whichever comes first). Therefore, after you discover that a doctor's error has hurt you, you have a year to bring a claim in a court of law. However, if three (3) years have already passed after the malpractice, you have lost your entitlement to bring legal action against the doctor.
Statute of Limitation for Minors
Medical malpractice claims on behalf of or by children should begin within three (3) years after the malpractice's date. However, claims on behalf of or by a minor below six years of age should be brought within three (3) years of the professional negligence occurrence or before the minor's 18th birthday (whichever timeline has a bigger filing window).
The state offers an exemption for children in fraud cases. The law dictates that statute of limitations should be tolled (clock pauses) for a period when the child's guardian or parent, the accused's insurance provider or doctor have committed collision or fraud in relation to filing professional negligence lawsuit on behalf of the minor.
Exemptions which might Extend the Statute of Limitations
Below are situations that can toll or pause the statute of limitations clock in Orange County:
- Where the medical practitioner's concealing or fraudulent actions in an effect to hide the medical error, and
- Where the claim is as a result of unintentional leaving of a foreign substance in a patient's body (for instance during an operation).
Notifying the Medical Practitioner that You Intend to File a Lawsuit
The law requires a plaintiff to notify a defendant of their intention to sue the defendant at least ninety days before filing a lawsuit. Although there is no particular format or form that should be used when issuing this notice, the defendant should be made aware of the:
- Kind of loss suffered
- Nature of injuries suffered
- The claim's legal basis
The law goes ahead to provide that, should the notice be served within ninety days of the expiration of the deadline, the date of starting the claim should be extended ninety days from the service of the notice.
Settling Medical Malpractice Cases in California
Taking a case through a trial requires a lot of time, resources, and money. As a result, it is common for a claim to be settled before trial. The law allows medical practitioners and patients to contract for the arbitration of disputes. Arbitration is less formal compared to litigation. It involves three arbitrators, one for every party and a neutral arbitrator.
It is worth noting that damages for disfigurement and pain and suffering awarded in an arbitration proceeding are limited by law to $250,000.
Litigating Medical Malpractice Cases
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Initiating the Lawsuit
A medical negligence claim starts with preparing a Complaint, Summons, and a Civil Cover Sheet. Proof of service should be provided within sixty days of bringing your complaint with the court clerk. The accused should then bring an Answer within 30 days. The answer gives responses to the allegation and should also highlight the legal defenses which will be used.
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Litigation Preparation
The next step is the discovery process. It is a process that permits disclosure between the parties that permits all sides to understand what is expected at the trial. You can acquire discovery by:
- Written interrogatories
- Oral examinations
- Admission request
- Mental and physical examinations
- Production of necessary documents
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Pretrial Litigation
If either of the party is not in a position to attend the settlement agreement, the claim will proceed to trial in court.
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Trial
At the trial, an admissible proof will be presented to the trier of fact (a group of individuals who review the evidence and listen to testimony so that they can issue a verdict).
To choose the jury, a ‘'voir dire'' process is conducted where lawyers ask prospective jurors questions. This is done to understand what prejudice the panel members could have against or in favor of the claim being filed.
After completing the process, both parties will decide who will be removed from consideration. A juror should not be disqualified based on color, economic status, national origin, sex, race, or religion. After all the parties finish declaring the individuals they want to be left out; the jury is impaneled.
The next step is opening statements. An opening statement is basically a description of how every party will make and present their case at the trial. Your personal injury lawyer will argue your case. At this point, the lawyer will call witnesses who will be cross-examined and questioned by the other lawyer.
The defendant will also present their proof that shows that negligence wasn't involved or how you contributed to the injury.
After both parties have given their side of the story, closing arguments will happen. The closing arguments help the jury to understand the case better. This is because each party's attorney will give a summary of the facts presented at the trial.
Finally, the judge gives jury orders. Then the jury can give its verdict.
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Appeal
More often than not, the losing party will choose to appeal the decision made during the trial. To appeal, you should serve and then bring a Notice of Appeal within sixty days. Either the court clerk or the other party will serve you with a judgment copy that is stamped "Filed."
Frequently Asked Questions
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Are There some Parties that are Immune to Professional Negligence?
California does not have a charitable immunity rule. Nonetheless, the legislature has imposed laws that offer immunity to persons who offer emergency assistance except for in cases where carelessness is involved. For instance, an emergency medical technician is immune from accountability when they offer emergency health care at an accident scene.
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Are there Instances When Informed Consent isn't Mandatory?
There are numerous exemptions to the informed consent rule:
- Emotionally fragile patients
If a medical practitioner discovers that a patient is very distressed that they will refuse the required treatment, the physician might not be obligated to obtain informed consent. For instance, a brain tumor is deadly, but its removal comes with risks such as paralysis. Therefore, it is right for the physician to be vague in their narrative of the complications and risks.
Moreover, if revealing too much information about the required procedure will make a patient more anxious, the healthcare provider may be in a position to hold some details. The doctor should choose how much to reveal based on the particularities of every patient. However, they should be able to prove why the risks weren't disclosed.
- Emergencies
In medical emergencies, there is little or no time to highlight the complications involved, and a doctor should act fast to save a life. Consequently, you can't bring a legal action for the absence of informed consent in this case, even if you couldn't have permitted the treatment.
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Are There Limits on Attorney's Fees?
Most qualified medical malpractice attorneys work on a contingency fee basis. There is a sliding scale limit on the percentage a lawyer can charge in a medical malpractice case in Orange County. Here is the structure:
- Forty percent for the first $50,000 compensated
- Thirty-three percent for the next $50,000 ($50,001-$100,000)
- Twenty-five percent for the next $500,000 ($100,001-$600,000)
- Fifteen percent of any amount above $600,000.
Find a Competent Personal Injury Attorney Near Me
If you have suffered injuries due to a healthcare provider's negligence, a medical malpractice lawsuit may help you to hold the responsible party accountable. While no amount of financial compensation can make up for the injury, pursuing a claim can offer a sense of closure as well as restore financial stability. At the Orange County Personal Injury Attorney, we are ready to stand by you if a medical practitioner's negligence has injured you. To schedule your initial consultation, contact us today at 714-876-1959.
