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California Medical Malpractice Law - An Overview

By Aaron Larson

Law Offices of Aaron Larson

July, 2004

Important Notice: The following overview of California's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of California's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of California.

Contents

What Is Medical Malpractice

Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:

  • Misdiagnosis of, or failure to diagnose , a disease or medical condition;
  • Failure to provide appropriate treatment for a medical condition;
  • Unreasonable delay in treating a diagnosed medical condition;

Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.

Limits on Malpractice Damages

California limits noneconomic damages in medical malpractice cases to $250,000.00.

Collateral Source Rule

Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in California, there is a discretionaly offset for payment from collateral sources, and evidence of payment may be introduced at trial.

Rules for Expert Witnesses

Expert witnesses in malpractice cases must have pertinent education and training to evaluate the specifics of the case and claim.

Joint and Several Liability

Under a traditional rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment. Under California law, in malpractice cases involving noneconomic damages such as "pain and suffering", the proportional fault of each defendant is determined, and each defendant is liable only for the amount of any such damages they are proportionately responsible for causing. Defendants are jointly and severally liable for economic damages.

Statute of Limitations

Medical malpractice actions must be commenced within 3 years from the date of the injury, or one year from the date the plaintiff discovers or reasonably should have discovered the injury, whichever occurs first. If the medical malpractice action is based upon the presence of a foreign object found inside the plaintiff's body, the statute of limitations does not start to run until the plaintiff discovers, or should have discovered, the object. The periods of limitation for medical malpractice apply to minors six years of age and older. For medical malpractice actions involving minors below the age of six, the action must be filed within three years of the date of the injury or before the minor's eighth birthday, whichever period is greater.

Limits on Attorney Fees

California imposes a sliding scale for plaintiffs' attorney fees. Fees are not to exceed 40% of the first $50,000.00 recovered, 33 1/3% of the next $50,000.00, 25% of the next $50,000.00, and 15% of damages exceeding $600,000.00.

Additional Rules

California permits and enforces contracts for arbitration of malpractice claims.

A physician must be given 90 days notice of the intention of filing a malpractice suit.

Upon the request of a party there is mandatory periodic payment of future damages awards in excess of $50,000.00. If the plaintiff dies before all payments have been made the judgment may be modified by the court, although payments continue to parties to whom the plaintiff owed a duty of support.

Why Use A Malpractice Lawyer

Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.

Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.

Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.

Copyright © 2003-2006 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder, except as follows: You may link this article to your website, either directly or through an ExpertLaw Library index page, provided your link does not depict this article, its author, or expertlaw.com in a negative manner.