Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
California limits the amount of money that a person injured by medical malpractice can recover as compensation for non-economic damages to $250,000.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. California has modified that rule, such that defendants in medical malpractice cases are liable for noneconomic damages in proportion to their percentage of fault.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. In California the collateral source rule has been abrogated by statute, and a defendant may introduce a wide range of payments from collateral sources that resulted from the claimed injury, including Social Security payments, disability benefits, worker's compensation payments, and health benefits. If the defendant introduces evidence of collateral source payments, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure the right to any insurance benefits concerning which the defendant has introduced evidence.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In California a person claiming injury from medical malpractice may file an action within three years from the date of the injury, or one year from the date the injury was or should reasonably have been discovered, whichever ends first. No medical malpractice case may be filed more than three years after the injury unless the delay was caused by fraud, intentional concealment, or foreign object. For foreign objects, the statute of limitations is tolled until the patient discovers or reasonably should have discovered the presence of the object.
For minors under the age six, a case may be filed within three years or before the minor reaches the age of eight, whichever is longer.
Additional rules affecting malpractice litigation in the State of Calfornia include:
Limits on Attorney Fees
Attorney fees are limited by statute to an amount not to exceed 40 percent of first $50,000 of damages recovered, 33-1/3 percent of the next $50,000, 25 percent of next $500,000, and 15 percent of damages exceeding $600,000.
Alternative Dispute Resolution
California permits health care providers and patients to voluntarily enter into a contract for the arbitration of disputes. Once properly entered, a contract for arbitration is binding and removes the option for a trial.
Medical Expert Witness Restrictions
For claims of medical negligence against a physician or surgeon providing emergency medical care in a general acute care hospital emergency department, the defendant's expert must be physician or surgeon who has had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. California has a general rule that statements, writings or benevolent gestures by defendants in accident cases, expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to that person or to the family of that person, are inadmissible as evidence of an admission of liability in a civil action.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.