My Doctor Injured Me, Can I Sue For Medical Malpractice?

Posted over 2 years ago. Applies to California, 38 helpful votes

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1

What is Medical Malpractice?

Medical malpractice occurs when doctors and other healthcare providers fall below the standard of care in providing medical treatment. Doctors and specialists, for example, are both held to a standard of care. "A [regular] physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances." Landeros v. Flood, 17 Cal.3d 399 (1976). "[Medical] specialists, like anesthesiologists and ophthalmologists are held to that standard of learning and skill normally possessed by such specialists in the same or similar locality under the same or similar circumstances." Quintal v. Laurel Grove Hospital, 62 Cal.2d 154 (1964).

2

What Is Needed To Prove Medical Malpractice Caused My Damages?

The plaintiff must show negligence caused their damages. Without causation and damages, there is no case. Under CA law, the plaintiff must show the defendant's negligence was a substantial factor in causing their injury or death, and they must do so to a reasonable degree of medical probability. "In a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendant's negligence, there was a reasonable medical probability the plaintiff would have obtained a better result." Alef vs. Alta Bates Hospital, 5 Cal.App.4th 208 (1992). There can be multiple causes of a plaintiff's injuries in a medical malpractice case, including preexisting conditions and negligence of other providers, therefore, a substantial factor in causing harm does not have to be the only factor.

3

What Are My Damages?

Damages represent your losses caused by medical malpractice. In CA, you are entitled to economic damages and non-economic (general) damages. Economic damages represent costs for past/future medical treatment (*discuss function of MICRA with an attorney), medical supplies, living care costs, loss of income past/future, and any other out-of-pocket expenses caused by the negligence. Non-economic damages represent pain and suffering. Under CA medical malpractice law, pain and suffering damages are statutorily capped at $250,000. After you speak with a medical malpractice attorney you will have a better understanding of the damages you are entitled to recover for your injuries. Attorneys will base their analysis on the type of medical malpractice that occurred, the injury suffered by the patient, the cause(s) of the patient's injuries, cost and extent of necessary medical treatment, loss of income past/future and the description of pain and suffering.

4

Medical Malpractice Cases Ordinarily Require Expert Opinion

When case topics are sufficiently beyond common knowledge and ordinary experience CA law permits expert testimony to assist the trier of fact. Medical malpractice cases usually involve subject matter that is beyond common knowledge; therefore, a plaintiff in a medical malpractice case will need favorable expert opinions for their case to be submitted to a jury. Certain types of medical malpractice cases do not require expert testimony because the negligence can be understood from ordinary experience (e.g., a doctor amputates a right leg when they were supposed to remove the left leg). In contrast, questions of infection control, medication complications, and surgical technique are outside of common knowledge and, therefore, require expert testimony. Because medical malpractice cases are handled on contingency, the attorney will pay for the expert witness fees and the client will only have to pay the attorney back if the case is settled or won at trial.

5

How Much Time Do I Have To File A Medical Malpractice Case In CA?

It is best to direct questions regarding the statute of limitations for medical malpractice claims to CA medical malpractice attorneys. Several exceptions exist and a careful review of your facts with an attorney will help you pinpoint when the statute began to run for your claim. These exceptions relate to minors, situations involving fraud, government-owned hospitals, etc. Plus, there are situations when the statute may be tolled (placed on hold). Generally, a victim of medical malpractice has 1-year from the date of discovering the injury (including when the injury should have reasonably been discovered) or 3-years from the date of injury, whichever occurs first. Err on the side of caution and take steps to protect your legal rights as soon as you discover your injury. When government entities are defendants, you need to file an administrative claim within 6-months from the injury before you can file a lawsuit against the government entity and/or their employees.

6

What Can I Do To Help My Case?

Be proactive in organizing your evidence and following recommended medical treatment. Plot a timeline for your symptoms and corresponding medical service dates and keep this handy when you review your case with an attorney. If you have health insurance that is paying for your treatment, hold on to any explanation of benefits that you receive from your health insurer. Keep good track of medical bills and co-pay amounts. Also, maintain records of extra living costs necessitated by a medical malpractice injury. Keep a pain diary so that you will have accurate records of the impact the injury has had on your life. You can maintain a file for all of the above details and this will greatly help you when you consult with an attorney. Once you retain an attorney they will maintain your file and ask you to provide their office with new documents and information.

7

Do I Have A Case?

When you believe you are the victim of medical malpractice you can contact a medical malpractice attorney to review your facts and learn the full scope of your rights. You can also obtain a second opinion from another medical provider. It is very helpful to know what other doctors or health care providers think about the cause of your injuries.

Additional Resources

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