I would disagree with the attorney who stated that the questioner does not have a case. The lawyer correctly stated that in order to prevail in a medical negligence action the Plaintiff in most cases will need expert testimony supporting the allegations that the defendant doctor violated the applicable standard care for medical providers practicing the specialty of the suspected medical provider. Therefore unless the attorney is also a psychologist or a psychiatrist it would be unwise to state categorically that the questioner doesn’t have a potential meritorious case. I would urge the writer of the question to immediately contact an experienced medical malpractice lawyer to review all the facts of the case including the medical and psych records relevant to this fact scenario. The records would then have to be reviewed by the appropriate expert for said expert to be able to advise the attorney as to the possible merit or lack of merit of this potential case. The answer to the question, "can I sue?" would depend on all the facts which are probably more detailed than what his been posted and the opinion of the appropriate medical expert. Most experienced medical negligence attorneys won't sue without backup medical opinions to support the allegations of the injured party. Anyone can sue, which is different than the odds of winning.
No, this does not sound like professional malpractice. In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care, except in cases where the negligence is obvious to laymen. Expert testimony is admissible only if based on matter of a type that may reasonably be relied on by an expert in forming an opinion on the subject to which his testimony relates.
Further, in order to establish that defendant's negligence was a “substantial factor” in causing injury or death, the plaintiff must prove the negligence was of itself sufficient to bring about that harm.
The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. Thus, in order to show that the injury was “caused by” defendant's medical negligence, you as the plaintiff must establish a “reasonable medical probability” that the negligence was sufficient of itself to bring about the injury, i.e., your injury was “more likely than not” the result of the negligence.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
A medical malpractice attorney will seek an expert's opinion before filing any suit. Nothing Is "obvious." It is a question of standard of care. If you are thinking of suing yourself because it is obvious you will have no chance. Consulation with an experience counsel is the way to go.
The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
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