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Sued for medical malpractice in small claims court, how can I have the case dismissed and can I counter-sue for missing work?

Fresno, CA |

I am being sued by a patient I have treated. They claim I caused them nerve damage and have contacted my employer with intent to sue. My medical malpractice insurance has had independent doctors review the case and say that my standard of care used was good and correct. They also state that my treatment of the patient did not induce nerve damage.

The patient has since filed a small claims suit against me. How can this be thrown out and not put on my record? And can I counter-sue for my time (preparing for the case but mostly the day of work that I will need to miss to appear in court), and also stress this has caused me?

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Attorney answers 6

Posted

Not likely but you should also prevail in small claims court.

Call for a free consultation at 727-937-1400 or visit us on the Web at www.serviceandjustice.com.

Posted

To succeed, the plaintiff has to prove duty, carelessness (doctor failed to use at least ordinary professional skills in carrying out the task), causation and damages. The carelessness element is tough to prove. The plaintiff must present expert opinion testimony that more or less says your conduct fell below the standard of care. The plaintiff can do this via letter or by having an expert witness testify in court. You need to be prepared to rebut this evidence yourself or have your own letter/expert testify that what you did was proper. You do not have a valid cross-claim against the plaintiff under the facts presented. The damage award in small claims court is $10,000 or less, which under the reporting requirement. Talk to your insurance or an attorney for futher assistance.

This information is not intended as legal advice or to create an attorney-client relationship between you and any attorney. Such information is intended for general informational purposes only.

Adam Jay Jaffe

Adam Jay Jaffe

Posted

Expert witnesses are hard to come by in CA Small Claims; even more so for professional negligence. Most judges take a sworn statement, in person or writing, as little more than a different opinion on causation. RARELY will they declare the person an expert.

Posted

Turn it over to your insurance company to defend/resolve

Posted

Your insurance carrier should be handling this.

Posted

Your insurance carrier should resolve this for you

Posted

You CAN sue for lost time, effort, energy etc. in Small Claims, but I expect you to have a chance of winning at approximately 0.0000001%.

Your insurance company should defend you or prepare you for a defense. If they do not, contact an attorney that knows Small Claims. Try: www.smallclaimsappeals.com

Adam Jaffe Law Office of Adam Jay Jaffe 124 Lomas Santa Fe Dr, #204 Solana Beach, CA 92075 (619) 810-7964 www.smallclaimsappeals.com Adam@AdamJayJaffe.com This posting is provided for “information purposes” only and should not be relied upon as "legal advice". Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principles discussed here may differ substantially in individual situations or in different states.

Mariam Mary Margaryan

Mariam Mary Margaryan

Posted

If you win, you can ask the small claims judge to award your court costs, if any, and expenses. Costs are out-of-pocket fees and charges you paid to defend the lawsuit –e.g. getting a doctor to prepare a declaration. Other expenses such as time lost from work are discretionary, so you should keep records. But this is not the same as a counter-claim.

Adam Jay Jaffe

Adam Jay Jaffe

Posted

Most judges will not award costs without a claim. You are correct, in that if an expert is "retained" and you need to pay for it, you can ask for it in a cross-claim 9defendant's claim). To file a cross-claim, this is the form to use: www.courts.ca.gov/documents/sc120.pdf