Everything about Medical Malpractice
Medical malpractice is a type of personal injury claim that relates specifically to the professional negligence of a doctor, surgeon, or nurse in the healthcare industry.
It can also refer to the negligence of a health care center, hospital, clinic, or emergency room.
If a preventable error by a doctor or facility resulted in a serious injury, illness, or infection, you might have grounds for a medical malpractice claim in California.
Learn more about what constitutes medical malpractice in California to understand your rights better.
Do you have a medical malpractice case?
It is your right as a patient to assume that your doctor and support staff will treat you with the highest standards of patient care.
All healthcare facilities in California have a legal obligation to treat their patients fairly.
If your medical services have resulted in a serious injury or other problem, it is important to question your level of care.
If all four key elements are true, you may have a medical malpractice case in California.
- There was a professional doctor-patient relationship between you and the defendant.
- The defendant breached their duty of care to you as your health care provider.
- Your injury is the result of the defendant’s breach of duty.
- You have compensatory damages because of the defendant’s fault.
Under state law, you can file a civil medical malpractice claim against your healthcare provider if its negligence or omission harmed you.
The best way to find out whether you have grounds for a case is to consult a medical malpractice attorney.
An assessment by a lawyer can help you determine whether you have the necessary elements for a claim.
Who can be liable?
You have the right to file a medical malpractice claim in California against a doctor, surgeon, nurse, physician’s assistant, chiropractor, dentist, physical therapist, mental health care professional, or any other type of health care provider.
You may also have the right to claim against the hospital, birth center, or medical center where the incident occurred, depending on the circumstances.
The defendant’s employment status depends on whether you would hold the person or the facility liable.
Many doctors and surgeons are not employees of the hospitals where they work. He is an independent contractor.
If the person who injured you is a contractor, you may only have the right to file a claim against their insurance company.
If the defendant is an employee of the health care center, however, you may be able to file against the hospital through the doctrine of vicarious liability.
How Long Do You Have to Sue for Medical Malpractice?
Time limits apply to your right to file a medical malpractice claim in California. As in every state, California has statutes of limitations – laws that limit the length of time a claimant can file an injury lawsuit.
This deadline keeps things fair for the defendant by forcing you to bring your claim on time. If you fail to file a medical malpractice claim within the statute of limitations, the courts will deny your right to file.
In California, you have a maximum of one year from the date you learned of your malpractice-related injury but no more than three years from the act of malpractice to file your claim. The courts will use the first of these two deadlines as your statute of limitations. If you discover your injury more than three years after the medical malpractice, you may not be able to file.
An exception exists for medical malpractice cases in which foreign objects are retained after surgery.
Suppose a surgeon leaves an instrument or material in your body cavities, such as a cotton ball or surgical towel.
In that case, you have one year from the date of discovery of the injury to file a medical malpractice claim—even if it is California’s three-year law.
Exceed the year limit. The three-year statute of comfort will not apply to cases where foreign objects have been left in your body by negligence.
Damages Available in Medical Malpractice Cases
Damages or compensation you can get for a medical malpractice claim in California has the potential to reimburse you for everything you lost or suffered because the doctor breached the duty.
California courts allow injured patients to seek economic and non-economic damages.
- malpractice medical bills
- prescription, rehabilitation, and therapy
- Past and future lost wages due to not being able to work
- lost the joy of life
- pain and suffering
- disability cost
- legal bill
As the plaintiff in a medical malpractice case in California, a judge may also choose to award punitive damages to you.
This is an additional amount to penalize or punish the defendant for gross negligence.
Suppose your doctor went beyond ordinary negligence and showed extreme disregard for your safety as a patient.
In that case, they may have to pay you punitive damages and a compensatory award.
Are There Medical Malpractice Damage Limitations?
California set a limit on medical malpractice damages in 1975 with the Medical Injury Compensation Reform Act.
The act limits the number of damages a patient can receive in a medical malpractice case to $250,000 for non-economic damages.
You cannot recover more than $250,000 for damages such as emotional distress, mental anguish, psychological trauma, or loss of union with a loved one. There is no statute of limitations for economic damages in California.
Filing a successful medical malpractice case
Medical malpractice is one of California’s most complex types of civil claims. It may be difficult for you to go against a powerful doctor or health care center and its legal team.
The secret to filing a successful medical malpractice case is hiring an attorney to represent you.
An experienced medical malpractice attorney can explain your rights and the legal process it will take to recover maximum compensation.
An attorney can help you with tasks such as identifying the responsible party and proving liability.
An attorney will also handle insurance negotiations so that you don’t settle your malpractice claim for less than it’s worth.
Most importantly, your attorney will answer your questions and make you feel that you are not alone when filing a medical malpractice claim in California.
What damages are available in medical malpractice cases?
When a patient is harmed, or worse, due to the negligence of a medical professional or healthcare provider, it is the right of the victim or their surviving family to recover compensation.
Compensation can be secured in the form of damages by filing a medical malpractice lawsuit. Three types of damages are available in medical malpractice cases: special, general, and punitive.
Special damages also referred to as economic damages, are awarded to compensate for measurable financial losses as a direct result of medical malpractice, such as:
Medical Expenses: The cost of care and treatment related to illness or injury resulting from the negligence of a healthcare provider.
Anticipated future medical expenses: Any expenses related to illness or injury for the medical care you will receive after the conclusion of litigation.
Lost wages: For time missed from work while recovering, both now and at any time in the future.
Reduced earning capacity: If the damage done interferes with your ability to earn wages in the future, either by being unable to work or by forcing you into a different line of work. You may then be entitled to compensation for the difference in income.
General loss: General damages, also known as non-economic damages, compensate victims of medical malpractice for immeasurable or subjective losses. The most common examples are:
Pain and Suffering: Compensation for the amount of physical pain you may have suffered in the future and emotional distress caused by injury or illness.
Emotional distress can include symptoms of depression, insomnia, anxiety, and other psychological conditions.
Disability or disfigurement: If you now have a permanent disability that leaves you unable to care for yourself independently.
Distortions and scars can cause physical and emotional pain that can last a lifetime. As a result, your ability to enjoy life or socialize can be negatively affected.
Loss of enjoyment of life: Compensation for how your quality of life has been affected. For example, you cannot do things you could have done before the medical malpractice damage occurred.
Loss of consortium: For the loss of marital benefits, such as affection, companionship, or sexual relations, a spouse may recover this type of loss.
The law does not provide a formula for placing a dollar value on non-economic damages, but California has a threshold.
The Medical Injury Compensation Reform Act (MICRA) sets a $250,000 cap on non-economic damages.
This limitation is highly controversial, especially in cases of extreme negligence, but it has no bearing on economic damages (e.g., medical bills, lost income, etc.).
In medical malpractice cases involving extreme negligence, punitive damages may be awarded.
There are no set criteria for what qualifies as extreme negligence. The definition is open to interpretation – and may also vary from court to court.
There are punitive damages in some situations, such as when a surgeon performs the wrong procedure or amputates the wrong organ.
This type of compensation is awarded to the victim but is intended to punish the defendant (the guilty party) and deter others from similar negligent conduct.
Do I Need a Lawyer for a Medical Malpractice Case?
While it is possible to handle a medical malpractice case without an attorney, it may not be worth the risk when there is so much at stake.
Many medical malpractice cases involve a serious injury or illness that can be financially devastating if you don’t recover the compensation you need, both now and in the future.
The Complexity of Proving a Medical Malpractice Case
Even if the liability seems straightforward, the plaintiff (victim) has to prove several elements to recover compensation.
A doctor-patient relationship existed
With medical records, it may be relatively easy to prove that the defendant was your healthcare provider at the time of the incident.
Simply put, the doctor or other healthcare provider failed to treat you with the level of care expected of you.
They were proving that negligence that occurred requires establishing the “medical standard of care” appropriate in your situation and how it was violated. To do this, you will need testimony from a medical expert.
Expert witnesses are important in showing the jury how medical malpractice occurred.
However, finding an expert witness willing to take a stand and testify against a fellow doctor cannot be easy.
Fortunately, experienced medical malpractice attorneys have professional relationships with experts and know exactly who can be trusted.
Proving causation in medical malpractice cases can be incredibly complicated. Causation means that you must establish that your injury or illness was “more likely than not” caused by the defendant’s (the guilty party’s) actions.
Doing so can be particularly challenging in cases where an injury or illness could normally be expected to occur, allowing the healthcare provider to argue that you are alleging failure to treat rather than malpractice.
Because of the complexity, proving causation will require a comprehensive understanding of your medical records.
It will also usually rely on expert testimony to simplify the evidence and explain how the injury or illness would not have occurred if it were not for the doctor’s negligent conduct.
You will also have suffered damages due to your loss, including medical bills, lost income, pain, suffering, etc.
To determine whether and how much to seek, you need to thoroughly understand the types and numbers of compensation available and how to estimate your future losses accurately.
An experienced medical malpractice attorney will know how insurance companies work and have a general idea of how much you are entitled to and the lowest amount you should accept.
If necessary, they will hire a medical expert and forensic accountant who can testify to the extent of your injuries and future effects physically and financially.
Cost of a medical malpractice case
As with any legal action, there will be significant costs associated with pursuing a medical malpractice case.
If you represent yourself, all fees will come out of your pocket, and it can cost between $100 and $500 to file just one lawsuit.
Then there’s paying for copies of medical records and, if you want your case to be successful, the cost of hiring expert witnesses.
Expert witness fees will cost the most, as they can charge hundreds or even thousands of dollars per hour. On average, an expert witness can spend between 20 and 30 hours on your case, which can add up quickly.
How do I know if I have a medical malpractice case?
Medical malpractice occurs when a patient is harmed by a doctor, nurse, or another medical professional who fails to perform their medical duties competently.
To determine whether you have a valid medical malpractice case, consider the following three elements needed to prove the claim.
Three Questions That Determine Whether You Have a Medical Malpractice Case
Was your medical treatment below the standard of care?
In a medical malpractice case, the patient bears the burden of proving that their healthcare provider violated a reasonable medical standard of care by doing or failing to do what the defendant’s fellow co-workers have done.
I would not have done it under the circumstances. Merely unhappy with your treatment or results is not medical malpractice.
Was the injury a direct result of the medical provider’s poor care?
It must be proved that, but for the healthcare provider’s negligence, the injury would not have been likely to have occurred.
Since many patients are already injured or ill, the question is often whether the harm was caused by negligence on the doctor’s part or whether it was caused by the patient’s pre-existing injury or illness.
Was the injury serious?
You must have suffered serious injury or loss due to the medical provider’s negligence to make a medical malpractice claim.
Serious harm may include chronic pain and suffering, permanent hardship, substantial loss of income, disfigurement, disability, wrongful death, etc. If no damage or injury occurs, you have no claim.
If you answered yes to these three questions, speak with an experienced wrongful death attorney as soon as possible to discuss your legal options.
Common types of medical malpractice claims
The five most common medical errors that may make patients eligible to file a medical malpractice claim against a negligent healthcare provider are:
Misdiagnosis or failure to diagnose
Misdiagnosis or failure to diagnose a patient’s condition occurs when a healthcare provider fails to provide a correct diagnosis to the patient.
This can happen when the patient’s symptoms are similar to those of another condition, or the healthcare provider neglects to assess the patient properly.
Medical malpractice claims based on surgical errors can result from a lack of proper planning from the surgeon’s actions before the operation or during the procedure. Common surgical errors include:
- Operating on the wrong body part or the wrong patient.
- Leaving a foreign object inside a patient.
- Piercing a patient’s organs.
- Errors made during surgery can result in infection, health complications, and death.
- medication errors
A medication error occurs when a healthcare provider administers or prescribes a patient the wrong dose or type of medication. Unfortunately, medication errors are common and often go unreported by patients.
Errors during prenatal care, delivery, and the postnatal period can result in serious injury to the mother and the baby.
Some of these common medical errors include misdiagnosing or failing to diagnose medical conditions related to pregnancy, failing to diagnose an ectopic pregnancy, failing to respond to signs of fetal distress, or performing a cesarean section when needed. Failure is included.
Cost me to file a medical malpractice lawsuit?
Suing for medical malpractice can be long, expensive, and complicated. This will cost you out of pocket and will highly depend on whether you hire a lawyer.
Cost with a lawyer
If you are filing on behalf of someone in a wrongful death claim, an attorney is even more essential to guide you through the legal process.
Many attorneys handle medical malpractice cases on a contingency basis. You will not have to pay upfront to maintain them or for any court costs.
Your solicitor will forward all costs associated with preparing and prosecuting your claim. Once you have recovered the compensation, your lawyer will collect their contingency fees and court costs.
The contingency fee typically ranges from 25 to 40 percent of your prize but averages 33 and 1/3 percent.
California is one of 16 states with statutory restrictions on the amount a medical malpractice attorney can charge as a contingency fee.
Under California Business and Professions Code § 6146, attorney fees for medical malpractice cases, settled or tried, cannot exceed the following amounts:
- 40% of the first $50,000 recovered
- One third (33 and 1/3%) of the next $50,000
- 25% of the next $500,000 is recovered, and
- 15% of any recovered compensation over $600,000.
Attorney’s fees can be deducted from “recovered” compensation, which means the amount you receive after deducting the costs of the case (not including your medical expenses or attorney’s overhead costs).
Hiring a lawyer for you means no financial risk is involved, as you will only have to pay if you win.
However, regardless of the outcome of your case, you may still be responsible for court costs, filing fees, and expert witness compensation, if applicable.
Cost if you represent yourself
Filing a medical malpractice case on your own may mean that there is no one to share the settlement or court award with, but the cost and risk of loss are high.
Medical malpractice attorneys spend an average of $20,000 to $50,000 on building a solid case and $50,000 to $100,000 on complex cases.
Unfortunately, there is no way for you to determine the exact cost if you represent yourself, but you will be responsible for the following:
Court fees for filing the lawsuit—are usually between $100 and $500.
Request medical records—which can cost up to $1,000 to get copies from your healthcare providers.
Fees for expert witnesses—The success of a medical malpractice claim depends heavily on expert witnesses. Hiring expert witnesses will be the costliest expense, as many charge hundreds or thousands of dollars per hour. An expert witness can spend an average of 20 to 30 hours on your case.
Other fees associated with pursuing a medical malpractice claim are sheriff’s or constable’s fees for serving legal papers, deposit transcript requests, arbitration fees, photocopies, trial, and jury consultants, etc.
If you lose, you will be responsible for these costs and more.
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