Medical malpractice laws — including statutes of limitations and settlements — and when to hire a lawyer
Medical malpractice is when a patient is injured because of a doctor, hospital, or other medical provider's negligent act or omission. If you suffered an injury as a result of your doctor's incorrect treatment or failure to properly treat a condition, you might wish to explore a claim for malpractice.
Medical malpractice is part of personal injury law. The process of negotiating a settlement or filing a lawsuit is similar, but there are ways in which a medical malpractice lawsuit is handled differently from a "traditional" personal injury case like a car accident.
Elements of medical malpractice
There are 3 major elements that must be met in order for a medical malpractice claim to be successful:
- Negligent violation of the standard of care. The medical profession has certain standards that are recognized and accepted as reasonable, according to health care professionals under similar circumstances. A physician or medical provider is required to administer care according to the standards that would be reasonable according to their training, specialty, and community. In short, did the physician act as an equally trained doctor would have in a similar circumstance?
- The negligence caused an injury. Violating a standard of care, alone, is not malpractice. In any personal injury claim — medical malpractice included — there must be an actual injury that was caused by the person's negligence. You need to prove that the negligence was the actual cause of your injury or condition.
There can't be a claim for medical malpractice if:
- there's an injury but no negligence, or
- there's negligence but no injury.
Both negligence and injury must be established.
- There are significant damages from the injury. A medical malpractice claim can be extremely expensive because it requires significant testimony from medical experts, and there could be an extensive discovery process. A frivolous lawsuit might be one where the cost of pursuing the claim would be more than the plaintiff stands to recover if damages are awarded. The patient must show that the injury involves disability, lost income, extreme pain and suffering, hardship, or significant medical expenses.
What qualifies as medical malpractice?
Although medical malpractice can involve any kind of treatment- or diagnosis-related injury, these are some examples of common reasons why a plaintiff might decide to file a medical malpractice lawsuit:
- Failure to diagnose
- Misdiagnosis
- Failure to recognize symptoms
- Failure to order correct testing
- Misreading or ignoring test results
- Disregarding or not taking appropriate patient history
- Unnecessary surgery or other invasive procedure
- Surgical errors (including wrong site)
- Incorrect medication or dosage
- Premature discharge
- Poor follow-up care
How to prove negligence for a California medical malpractice claim
A medical provider has a duty to act within the level of skill, care, and knowledge that a reasonably careful provider would use in similar circumstances.
The plaintiff must prove that the provider breached that standard of care, and that the breach caused their injury.
The doctrine of Res Ipsa Loquitur
The loose translation of res ipsa loquitur from its original Latin is: The thing speaks for itself.
When applied as a legal standard, it's the principle that the mere fact that the accident happened means there was negligence. In certain cases, you might not need direct evidence to prove that there was negligence because there's no way the injury could've happened if there wasn't negligence.
California law uses the exclusive control element to show res ipsa loquitur. If the instrumentality or agent that caused the accident was under the exclusive control of the defendant, the control factor links the defendant to the negligence.
For example, Patient Patty had surgery to remove a tumor. Although the surgery was successful, she developed a severe infection near the site several months later. It was discovered that a surgical sponge had been left inside Patty's body, and that was the cause of the infection.
A sponge in Patty's body that didn't belong there means someone on the surgical team was clearly negligent.
Res ipsa loquitur = the thing speaks for itself.
If discovery can't determine which doctor or nurse left the sponge in Patty's body, all of the defendants could share liability.
The burden of proof in a medical malpractice case where res ipsa loquitur is a factor would shift to the defendant. That means the defendant would have to prove they didn't cause the injury, rather than the plaintiff proving they did.
That's because if a plaintiff is in surgery, for example, they won't know how a sponge was left in their body, so they can't prove how the injury happened. But the fact that it's there means that someone on the surgical team was negligent. The defendant would have to somehow prove that they're not responsible for the injury in order to avoid liability.
Who can be sued for medical malpractice in California?
Different states have a variety of laws when it comes to handling medical malpractice claims. California laws apply to all health care providers and facilities licensed by the state, including:
- Doctors
- Laboratories
- Clinics
- Podiatrists
- Nurses
- Physical therapists
- Hospitals
- Anesthesiologists
- Psychologists
- Chiropractors
Statutes of limitations for a California medical malpractice claim
If you believe you have a claim for medical malpractice, the first (and maybe most important) thing to consider is the statute of limitations.
A statute of limitations is the amount of time you have to file a claim. You must file within the statute of limitations, or you can lose your right to sue.
The California statute of limitations for a medical malpractice claim for an adult is 3 years from the date of injury, or 1 year after the plaintiff discovered (or reasonably should've discovered) the injury, whichever is earlier.
These time limits are different when the injured person is a minor. If the patient is under age 18, there are two deadlines:
- If the child was less than 6 years old at the time of the injury, the statute of limitations runs until their 8th birthday.
- If the child is 6 or older, the statute of limitations is 3 years from the date of the wrongful act.
The statute of limitations runs until the later of these 2 deadlines.
The statutes of limitations have exceptions. Your statute of limitations can "toll" (pause) if:
- The medical provider committed fraud
- The medical provider intentionally concealed the wrongful act
- The injury involves a foreign object in the patient's body that has no therapeutic or diagnostic purpose or effect
- The parent of a minor colludes with the defendant's insurance company or with the health care provider to avoid a malpractice lawsuit on the minor's behalf
Notice requirements for a California medical malpractice claim
California law requires that if you're planning to sue for medical malpractice, you must provide notice to any potential defendant at least 90 days before the lawsuit is filed.
You must inform the defendant of:
- The basis for the claim
- The nature of the injury
- The type of loss
Damage caps in a California medical malpractice claim
In a personal injury lawsuit, you can recover damages for any actual costs you incurred as a result of your injury, and you might be able to recover for pain and suffering or other emotional distress.
You can recover damages for:
- Medical treatment (including surgery, doctor visits, hospitalizations, medications, and other costs associated with your care)
- Lost wages (both past and future)
- Loss of consortium
- Assistive devices
- Pain and suffering
- Emotional distress
Damages in a personal injury lawsuit are in 2 categories: economic and non-economic.
Economic damages are those that have a specific dollar value, like medical treatments and lost wages. Even if you're not sure what your future lost earnings or medical expenses from an injury might be, an expert has formulas and methods to calculate future costs.
Non-economic damages don't have a specific number attached. Pain and suffering, physical impairment, psychological distress, and loss of consortium would be damages that are important, but difficult to quantify financially.
California has a $250,000 damage cap on non-economic damages for a medical malpractice lawsuit. There's no cap on economic damages, but a medical malpractice plaintiff can't receive more than $250,000 for non-economic loss.
What's an "I'm sorry" statute?
Doctors are human, too. They know when they make a mistake.
You probably know that if you're in a car accident, it's best not to apologize to the other driver because the insurance company will take it as an admission of fault. And, just like it might be your first instinct to apologize if you feel you've harmed another person, a doctor might feel that instinct, too.
The difference is that for many decades, doctors were trained not to apologize in order to protect themselves in a potential lawsuit. Today, California has an "Apology Law," also known as an "I'm Sorry" statute. An apology law ensures that the apology is not admissible in court as indicating fault, though admission of responsibility would be.
Some hospital groups, including San Francisco-based Catholic Healthcare West and the Los Angeles Veterans Administration, have full-disclosure policies. Their staff is required to acknowledge and investigate any adverse event. The hospital will apologize to a patient where it's warranted, and this can also come with an offer for a settlement to cover expenses.
The reason why hospitals and physicians are now going out of their way to make apologies when necessary is because it's a practice that's been shown to decrease their likelihood of being sued. If you've been injured as a result of malpractice, you might be so angry that you just want to get what you deserve, but also essentially "punish" the wrongdoer.
A study conducted by Stanford Medicine of nearly 1,000 patients who experienced adverse medical events showed that only 5% of them eventually pursued a lawsuit. This is good news for doctors and hospitals, of course, because it demonstrates that there are ways to avoid lawsuits by working with patients.
But it can also be good news for you. Depending on the apology program followed by your doctor or hospital (if they have one), it might save you the time, money, and stress of a lawsuit, too. If a doctor or hospital makes you an apology, it might come with a compensation offer so that you can stay out of court.
If that happens, you don't have to accept or decline on the spot. You can review the settlement offer with a personal injury attorney to make sure it's fair compensation for the injury.
Medical malpractice attorney fees
Most personal injury attorneys work on a contingency fee basis, which means you don't pay hourly or upfront. Instead, they earn a percentage of the damage award you receive.
In many personal injury cases, a lawyer will earn about 33% of your damage award. However, if the lawyer thinks a case might be especially time-consuming or difficult, they might charge a higher percentage.
Some lawyers have a clause in their contract that says they raise the percentage if a case goes to trial. In California, there's a fixed limit for an attorney's fee structure:
- 40% of the first $50,000
- 33% for $50,001 - $100,000
- 25% of %100,001 - $600,000
- 15% of any amount over $600,000
What to do if you think you've experienced medical malpractice
The first thing you should do is get an opinion from a different doctor from the one who's responsible for the situation. Explain your symptoms, share your medical records, and tell the doctor why you believe your injury is the result of malpractice.
Be sure the second doctor notes in your chart or writes a letter explaining why they believe you've suffered from medical malpractice. This could be a key piece of evidence.
Second, contact a personal injury lawyer who specializes in medical malpractice. The Enjuris Personal Injury Law Firm Directory is a great place to begin finding a California medical malpractice lawyer who can advise you of your options.
Medical care is one of the most important trust relationships we have throughout our entire lives. If you're suffering from symptoms of an injury that you received from someone who should've known better or done better, you deserve to be compensated for that. Make the call today to get on your way to recovery.
Did you know that medical malpractice law varies by state?
What does an injury lawyer do?
A personal injury lawyer helps individuals who have sustained injuries in accidents to recover financial compensation. These funds are often needed to pay for medical treatment, make up for lost wages and provide compensation for injuries suffered. Sometimes a case that seems simple at first may become more complicated. In these cases, consider hiring an experienced personal injury lawyer. Read more