If you are or were a patient and you suffered an injury during medical care, you may perhaps have a claim for medical malpractice. Every state in the U.S has its laws in place regarding medical malpractice. If therefore you live in California, it may help to understand what the state laws say about medical malpractice and how you can file a lawsuit against the guilty party.
It will also help if you found a reasonable personal injury attorney to help you with the process. At The Personal Injury Attorney Law Firm, we handle all manners of personal injury claims on behalf of our clients. We will be there to help you through the process and also help gather sufficient evidence. We will offer professional advice to you as well, to help you make the best decision.
Legal Meaning of Medical Malpractice
In the state of California, medical malpractice is defined as an act or negligence through commission or omission by a healthcare provider. This act should have been done in the course of rendering professional services. There must be proof that the act of omission or commission is the direct cause of a wrongful death or personal injury. A negligent service provider could be held accountable for any damage that results from his/her service delivery. This will be so as long as the rendered services are within the scope of the services the healthcare provider was licensed to perform.
When a healthcare provider breaches their standard of care when administering treatment to a patient, they could injure or cause the death of a patient. A healthcare provider’s standard of care, in this case, means the generally accepted practice and procedure that all healthcare providers in the state should use when treating patients. Note that the standard of care for healthcare providers varies so much. This depends on the age, disease, or ailment that is being treated and the general well being of the patient.
It is not enough to prove that a healthcare provider breached their duty, or a doctor did not follow the standard procedure of care. The victim must also show that the breach is the direct cause of their injury or the death of a loved one. For that reason, medical malpractices can prove challenging to prove without the help of expert witnesses.
Again, treatment is a broad term in the state of California. Treatment is not just issuing out medication or medical care. Treatment is what happens throughout a patient's healing process. This includes misdiagnosis, and after treatment care that is recommended for a particular patient. This, therefore, means that anyone in the medical field could face a lawsuit for medical malpractice.
How to Prove Negligence In California Personal Injury Cases
The injured person is required by law to substantiate three things to recover damages in any personal injury case in the state of California:
- That the offender had a duty of care for the plaintiff
- That the offender breached that duty through negligence
- That their negligence was a significant factor in causing the harm
A person is said to have acted with negligence if they fail to work reasonably. The law requires everyone to work the same way a reasonable person in the same situation would have worked.
Personal injury law in the state of California provides that every so often, people owe a duty of care to others. The law creates a duty of care. Daycare centers and teachers are, for instance, mandated with the responsibility of taking care of children left in their care. Drivers, on the other hand, have a duty of care to obey traffic laws so as not to put the lives of other motorists and road users at risk
Doctors and other healthcare practitioners have a duty of care too, and their duty of care depends upon the circumstances of their practice.
Negligence, in this case, will come as a result of failing in your duty of care, thus risking harming oneself or others. A healthcare professional is said to be negligent if they did or did not do something that a reasonably careful person in their situation would not do or do. If your doctor owed you a duty of care, but he/she failed, thereby causing you significant damage, you may be able to file a lawsuit against him/her.
Who is Likely to Face a Medical Malpractice Lawsuit in California?
Medical malpractice laws in California apply to all people working in healthcare sectors and facilities that operate with a state license. These are, for instance:
Doctors: A doctor who has an established doctor-patient relationship owes the patient a duty of care and treatment. The doctor will, therefore, use their skills, diligence, and care to administer reasonable medical treatment to that patient, just like a reasonably competent doctor would do under similar conditions.
There are, however, instances when their doctor harms a patient during a medical procedure. When this happens, the best course of action to take is to seek compensation for the additional treatment you have to go through after that.
There are many ways in which a doctor can be negligent. These include failing to diagnose a patient's condition correctly, especially if they do not have the right training for that particular condition. A doctor can also face a lawsuit if they provided the wrong type of care. This could happen if the procedure used was incorrect, or a doctor negligently left instruments inside a patient.
Chiropractors: Theirs is a very delicate job since they deal with joints and manipulation of the body to treat neuromuscular disorders. Their main goal is to align the body properly, mainly the spine. When done well, the body can heal itself naturally without the need for surgery. However, such a practice can end up causing harm to a patient rather than treating them. In the case of an inexperienced, negligent, or incompetent chiropractor, for instance, the patient could end up suffering more harm than they had with the initial injury or illness.
If you are sure that your case qualifies as medical malpractice, you can pursue compensation in court. This is because the chiropractor owed you a duty of care to treat you according to acceptable medical industry standards. If he/she acted carelessly or with the intent to harm you, they have automatically breached that duty of care.
Nurses: Duty of care is an essential aspect of a nurse's responsibility. Nurses are expected to take rational care at all times to avoid acts of commission or omission that could reasonably injure patients placed under their supervision. A nurse is, for instance, expected to foresee possible events that could occur as a result of their actions or lack of actions.
Ignoring water spillage on the floor of a ward, for instance, could cause a patient to slip and fall, thereby hurting themselves. It could get worse if the said patient was already injured or seriously sick. California law is sure to hold such a nurse liable even if they were not the ones who made the spillage in the first place.
Similarly, a nurse who administers a wrongly-prescribed drug to a patient could be responsible for the effects of that drug even if they did not prescribe the medication in the first place. The nurse's duty of care includes ensuring that medicines are prescribed safely to patients under their supervision. This includes checking to confirm that the dose is right and following up with the doctor if something does not seem right.
Pharmacists: As soon as a pharmacist receives a prescription form to fill from a patient, they automatically develop a relationship with that patient. Thus, the pharmacist owes a duty of care to that patient, which if breached; could face a lawsuit for medical malpractice. The pharmacist's responsibility included ensuring that the prescription is well filled.
If this does not happen and the pharmacist acts in a manner that breaches that duty of care, the patient can sue the pharmacist for negligence. Negligence in such a situation will occur if the pharmacist fills the prescription with the wrong medication or the right medication in incorrect quantities. If their actions directly cause harm to the patient, they will be liable for the resulting damage.
Psychologists: Even without a medical degree, psychologists can still face a legal lawsuit if they caused harm to their patients under personal injury laws. The most likely lawsuit will be that of medical malpractice. The explanation for this is because psychologists mainly deal with mental processes and how they affect human behavior. Even though a psychologist will not prescribe medication like a psychiatrist, they could render a person vulnerable to harm.
Some of the most successful lawsuits filed against psychologists in the U.S include sexual assault/battery, breach of trust, fraud, intentional infliction of emotional distress. If your psychologist meets the state laws that prove medical malpractice, they will be responsible if their actions or omission caused their patients harm.
Hospitals: Sometimes a hospital could face a legal lawsuit for medical malpractice. This is because hospitals owe a duty of care to all the patients they admit. Again, the law requires hospitals to accept every patient who comes to their facilities in need of emergency medical care. It should be so even if they cannot pay for the services. Once this duty is breached, all the plaintiff needs to do is to prove that the hospital breached the duty.
If a doctor working in a particular hospital misdiagnoses or fails to diagnose a patient, the hospital could be held liable. The hospital may have hired an incompetent doctor. Also, it may have failed in providing the necessary equipment for the doctor to perform his/her duties.
Other parties that could be held liable in a case of medical malpractice include:
- Physical therapists
Compensable Damages in a Medical Malpractice lawsuit
People who suffer injuries in a medical malpractice situation in the state of California could recover some or all of their incurred damages. Some of the compensable damages under personal injury laws include:
- Medical bills
- Lost wages
- Physical & occupational therapy
- Home health care
- Loss of the earning capability
- Non-monetary damages like suffering and pain
Section 3333.2 of California Civil Code has put a cap on non-monetary damages in the state’s medical malpractice lawsuits. This section of the law came about through the Medical Injury Compensation Reform Act that was passed by California voters in 1975. The cap recommends $250,000 for medical malpractice injuries that should apply to all the damages that are hard to evaluate. These are the non-monetary damages and will include the following:
- Loss of enjoyment in life
- Loss of the use of a limb or organ
There is, however, no such cap on the compensation amount a person could recover in a case of professional negligence.
There are punitive damages to think of as well. In a California case of medical malpractice, the claimant may recover punitive damages. They must, however, establish, using clear and substantial proof that the offender committed fraud, oppression, or malice. In the case of professional negligence, the plaintiff only needs to prove that the defendant’s action was:
- Intentional or done willfully and with mindful disregard of the safety or rights of others. This means that the defendant must have acted recklessly or with gross negligence.
Statute of Limitations in California Medical Malpractice Cases
Every state has set a different statute of limitations for plaintiffs to file a lawsuit for medical malpractice. Statute of limitations is the period within which the victim is allowed to file a legal claim against the negligent medical provider. Once this time passes, the plaintiff will not be permitted to file a claim in court.
In the state of California, the length of time allowed to a plaintiff is dependent on whether the victim is a minor or an adult.
If the victim is an adult, the law allows them three years from the date of injury to file a lawsuit against their offender. If the damage was discovered way after the malpractice, the plaintiff has up to one year from the date of discovery or the time that he/she should have found the injury.
In case the plaintiff is a child under the age of 18, the plaintiff has up to three years after the date the alleged medical malpractice was committed. If the child was below six years at the period of injury, the law allows them up to their eighth birthday to file a lawsuit against their offender.
There are exclusions to the given statutes of limitations. The limitation period could, for instance, pause if the healthcare provider facing a medical malpractice lawsuit does the following:
- Commits fraud
- Intentionally conceals their wrongdoing
The limitation could also break if a foreign body has been found inside the body of the injured person, which has no diagnostic or therapeutic purpose. Again, if the minor's parent cooperates with the healthcare provider or their insurer not to file a lawsuit in place of the minor, the limitation period may be paused.
How is Negligence Proven in a Medical Malpractice Case?
Healthcare providers are said to be negligent if they fail to use their knowledge, care, and skills that other reasonable medical practitioners in their place would use. For that reason, they cause or risk harming their patients. The level of knowledge, care, and skills as used in this case can collectively refer to the expected standard of caution or the duty of care for all healthcare professionals.
To establish this standard of care, the court will require calling in one or more experts. In addition to this, the plaintiff will be required to prove that the defendant breached the duty of care and that their actions directly caused the injuries.
It is, therefore, not enough to demonstrate that the result of one diagnosis or treatment went wrong. The court will need to know that there is something the medical practitioner did or did not do, which resulted in injuries.
What is the Role of a Personal Injury Attorney in a Medical Malpractice Case?
Personal injury attorneys come in to help victims of personal injuries. Their role is to help them recover compensation for the damages sustained. In a case of medical malpractice, the victim may not be aware of a lot of things, including the legal processes, how to prove the case and statutes of limitations. An experienced personal injury attorney will be there to guide and help them file a successful lawsuit against the defendant.
It is, therefore, essential to find you a well-skilled and experienced personal injury attorney. An experienced attorney will know when to file legal documents, the kinds of materials that should be submitted in court, how to find compelling evidence against the defendant and the right course of action among other things.
After all the evidence has been gathered, your attorney will prepare strong evidence. This kind of evidence will ensure that the court grants you the amount of compensation you truly deserve.
Your attorney will be with you through the most challenging period of your life. A court case is not a simple thing, especially for an injured person who is probably still on medication or nursing a catastrophic injury. You will need emotional support at that time and the best person to offer that will be your injury attorney.
How to File a California Medical Malpractice Lawsuit
The first step in filing a medical malpractice claim against a negligent healthcare provider is finding a competent personal injury attorney. The attorney should be available, well-skilled, and experienced and should be willing to fight for your rights.
The first thing your attorney will do is to understand your case to determine the best course of action. An experienced attorney will know the process by heart and so, will advise you on the possible outcomes depending on the courses of action available for your type of case. With that, you should be able to choose the best way forward, one that will improve your chances of success.
Once both of you are in agreement, your attorney will proceed to collect as much evidence as possible. This will be in the form of medical files, expert reports, and witness accounts. Any evidence that could help your case will be useful. Your attorney should also be able to find medical experts who are willing to testify in your favor, to prove to the court that your case was indeed a case of medical malpractice.
Your attorney will be willing to negotiate for a settlement with the defendant or their insurer to save time and the stress of going through court processes. However, if the defendant or insurer is not willing to compensate you fairly, he/she will advise you on the importance of filing the case in court.
The last bit of this process is to gather all the relevant documents and file them in court. Well organized materials will always improve your chances of winning a case. After that, the court will give you a hearing date for your lawsuit w. Your attorney will be working behind the scenes to ensure that the evidence gathered so far is not manipulated.
Find The Personal Injury Attorney Law Firm Near Me
Cases of medical malpractice are on the rise. Many patients are suffering in the hands of healthcare providers who should be protecting their lives. A lot of cases are those of negligent medical professionals who know better than to risk the lives of patients under their care. If you or your loved one has suffered an injury in the hands of a medical care provider, it is crucial to know how to file a claim for compensation. At The Personal Injury Attorney Law Firm, we offer help, support, and guidance to ensure that the injured is at least getting their rightful compensation. Call us at 619-625-8707 if you are anywhere in California and let us take you through the legal process.