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Medical Malpractice

The answers specified below apply to medical malpractice in the state of California.  We hope that you find the information useful, but it should not be used in place of consultation with a qualified attorney.  Should you have questions, please contact an attorney.

  1. What is "medical malpractice"?  Medical malpractice is a broad term which is generally used to describe lawsuits against doctors and other health care providers (nurses, physical therapists, psychologists, counselors, etc.)  Although the most common type of "malpractice" actions are based on claims that the doctor was negligent in the way he or she performed medical care, there are several other theories of liability which may be appropriate in any given case including: failure to obtain informed consent, medical battery, or harm caused by a defective medical device.  Negligence is the failure to use reasonable care to prevent harm to others.   In medical malpractice cases, it is referred to as a doctor acting "below the standard of care"  in the treatment of a patient.  To determine whether a physician's conduct was below the standard of care, expert testimony is required by other physicians who practice in the same field of medicine to explain what the doctor should or should not have done under the circumstances.  The decision as to whether a health care provider was "negligent" is a one to be decided by a jury, if a claim cannot be resolved short of trial.      
  1. How much time do I have to file a lawsuit?  The answer is, "it depends."  The deadline, known as the statute of limitations, for filing a particular claim is based on numerous factors which vary in every case.  These factors include, but are not limited to, the type or theory of the claim you are filing (medical negligence, informed consent, battery, products liability), the identity and capacity of the person bringing the suit (adult, child, incapacitated adult), and the identity and legal capacity of the person you wish to bring suit against (physician or other health care provider, governmental entity, manufacturer of a medical device, etc.)   Because the deadlines are so case and fact specific, the safest thing to do is to contact an attorney of your choice as soon as you know, or reasonably suspect, that you have been injured by someone's negligence or intentionally bad conduct.  The attorney will then be in a much better position to help you determine how much time you have to file your claim.
  1. What is my case worth?  The value of a case depends on several factors including the nature and extent of the particular injuries.   For example, damages for out of pocket losses (past and future medical expenses, lost wages, loss or impairment of the ability to earn a living in the future, property damage, etc.) are fairly easy to calculate because they are objectively verifiable monetary losses. However, an injured person is also entitled to "general damages" to compensate for pain, suffering, loss of enjoyment of life, mental and emotional upset, and the like.  There is no set formula for calculating those losses, and it is up to a jury to award an amount which they believe fairly compensates the injured party.  While an attorney may be able to give you a "potential valuation" of your case, the attorney cannot and should not guarantee the outcome in any case, nor place a set "value" on the case at the outset. 
  1. Are there any limitations on damages in medical malpractice cases?  Yes.  In any other type of lawsuit regarding injury to, or death of, a plaintiff, the amount to be awarded to the injured party is determined solely by the jury.  In California medical malpractice cases, however, awards for general damages are capped at $250,000, no matter how egregious the doctor's conduct, or how severe the injury.  Although you may hear of jury awards in the press for much larger amounts, any verdict for general damages over the $250,000 is automatically reduced to the capped amount after the jury is dismissed.  Moreover, if the health care provider requests that the verdict against it be paid over time (known as periodic payments), the Court must grant the motion, meaning that the damages will not be received by the injured party as a lump sum, but rather could be paid over many years......
  1. How do I pick an attorney?  When speaking with an attorney about representing you in an action, you should feel comfortable asking any questions which are on your mind including those about the attorney's education, background, trial experience, and fee arrangements.  You should be comfortable enough with your attorney that you can share personal and private information regarding your background, medical history, and treatment concerning your injuries.  The attorney needs to know these details to help you evaluate your case.  Remember, what you tell an attorney during a confidential communication is absolutely privileged, and the attorney is ethically bound not to disclose it to others.  In the end, your relationship with an attorney, like any other important professional relationship, should be based on mutual trust and respect.  A lawsuit can be a difficult, emotional, time-consuming process, and you need to retain an attorney you feel comfortable with for the long haul!