How Do I Know If My Injury Constitutes Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Medical professionals are not expected to be infallible and there may be poor results from treatment that do not amount to malpractice. Medical professionals are expected to exercise the basic knowledge, skills, and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances. This basic knowledge and skill is called a standard of practice, or standard of care. When a medical professional treats a patient and fails to use this basic knowledge, skill, and care whether the failure consists of doing something incorrectly, or failing to do something that should be done, that failure is a deviation from the standard of practice or care.

The injured party must first prove that the health care provider fell below the standard of care for similar health care providers in California. That means the health care provider failed to act as a reasonable and prudent health care provider in California would under similar circumstances. The injured patient must then prove that the health care provider`s breach of the standard of care was a proximate cause of the injuries to the patient. Expert testimony is generally required to establish a breach of the standard of care, unless negligence can be inferred by the facts.

It is important to note that medical malpractice claims are very difficult to prevail in. In California, 9 out of 10 jury verdicts are in favor of the doctor. These types of actions are also extremely expensive partly due to the need for qualified expert review and testimony. Whether or not you have a good case depends on the professional judgment of attorneys and medical experts. If you are told that you do not have a case with merit, you should seek another opinion from one or more other attorneys.

Does California Require That Claims Be Arbitrated Prior To Litigation?

Tue, 29 May 2007 21:19:00 GMT

California does not require claims of medical malpractice be arbitrated absent the parties` agreement to arbitrate. Many hospitals and doctors have patients sign an agreement to go to binding arbitration if there is any dispute. Often a patient does not even realize he or she has signed a binding arbitration agreement until a lawyer finds this clause in the patient`s medical records. These binding arbitration agreements are typically iron clad. Most arbitration clauses provide that each side bears their own cost. That means that even if the patient wins their medical malpractice claim, they still have to pay all of the costs for the experts and the arbitrators out of their own pockets. This is different from most trials where the victim`s attorney tries to shift the costs to the defendants if the victim wins the trial.

How Much Can I Expect An Attorney To Charge To Handle A Medical Malpractice Case?

Tue, 29 May 2007 21:19:00 GMT

Most attorneys who believe a case has merit will take the case without payment up front. They will take the case on a contingency basis, which means they will receive a percentage of your award if and when you recover for your injuries. California limits the amount attorneys in a medical malpractice case can collect pursuant to a contingent fee arrangement to 40 percent of the first $50,000, 33 1/3 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount that exceeds $600,000. This limit applies regardless of whether the recovery is by settlement, arbitration, or judgment.

The attorney`s out of pocket costs are, in many cases, not included in the attorney`s fees. You should be sure to pay attention to how an attorney will bill you for costs. In a medical malpractice case, these expenses can be quite high. Many attorneys will decline a case unless there is potential for a substantial verdict or settlement.

Is There A Time Limit In Which I Need To File A Lawsuit For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Yes, there is and that time limit is referred to as the statute of limitations. Failure to file suit within this time frame prevents you from filing suit at all. In California, a medical malpractice action for injury or death must be brought within three years of the date of injury or one year after the plaintiff discovers, or should reasonably have discovered the injury, whichever occurs first. In no event can the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body in the injured person.

Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the age of six years must be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant`s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.

Recoverable Damages

Tue, 29 May 2007 21:19:00 GMT

In the event of injury or loss of a loved one based on the conduct of his/her medical provider(s), that person and his/her family have certain rights under California law. The law recognizes that the injury or death of a family member caused by the fault of another may result in financial hardship, which may include medical expenses, a loss of earnings and support and other hardships. In addition to financial losses, the law permits you to make a claim for the intangible aspects of your relationship, including the loss of companionship, attention, comfort, love, affection, guidance and protection. Under our system of justice, a family is entitled to reimbursement for these intangible losses as well as lost earnings or medical expenses. In order to assess the value of a medical malpractice/wrongful death claim, it is necessary to determine the injured or deceased person`s age, sex, health, physical and mental characteristics, occupation, contributions to the family, and the person`s relationship with other family members. Damages may be recoverable for the past and future losses. However, in California, there is a limit of $250,000 for noneconomic (pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damages) losses. Because delay can jeopardize your claim, you should have an attorney who specializes in these cases review your claim as soon as possible.

What Are The Typical Attorney Fees For A Medical Malpractice Case?

Tue, 29 May 2007 21:19:00 GMT

Contingency fee agreements are agreements that an attorney has with his or her client regarding the payment of the attorney fees. It is not based on the usual hourly rate of the attorney. Rather, the attorney is paid if and when the client recovers on the claim. California limits the amount attorneys can collect pursuant to a contingent fee arrangement in a medical malpractice case. This limit applies regardless of how the recovery is made (i.e., settlement, arbitration, or judgment). If the contingent fee arrangement is based on an award of periodic payments, the court will place a total value on the payments based on the projected life expectancy of the claimant, and then calculate the contingent fee percentages. The payment is based on the following schedule:

40 % of the first $50,000,
331/3% of the second $50,000,
25 % of the third $500,000,
15% of any amount that exceeds $600,000.

Some attorneys provide for a different percentage if the case is settled early or if the case goes to trial. Generally, even under contingency fee arrangements, the client is ultimately responsible for out of pocket expenses such as filing fees, copying costs, deposition and expert costs, et cetera. For more information on contingency fees, please consult an attorney in your area.

What Damages Can Be Recovered For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

You can recover your actual economic losses such as the costs of reasonable and necessary medical care, rehabilitation services, custodial care, and loss of earnings. The law allows compensation for future medical and care expenses that the claimant can prove will be reasonably necessary to treat the injury caused by the malpractice. The claim may include income the claimant can prove will probably be lost in the future because of the injuries. Loss of earning capacity is also allowed when the patient proves he or she is less able to earn a living as a result of the injuries caused by the malpractice.

You are entitled to noneconomic damages for pain, suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life, etc. California places a cap on noneconomic damages for medical malpractice cases, limiting recovery to $250,000. Only one $250,000 recovery is allowed in wrongful death cases. There is, however, authority for allowing separate caps for the patient and a spouse claiming loss of consortium.

In certain instances, damages may be awarded to families of injured claimants for loss of care, companionship, love and affection. Family members can be compensated for the death of a loved one caused by medical malpractice. These damages may include medical and burial expenses, loss of income that would have supported the family members, emotional suffering, and loss of the pleasures of the family relationship. Punitive damages are intended to punish a defendant and are only awarded in rare cases. A plaintiff must prove by clear and convincing evidence that the defendant was guilty of oppression, fraud or malice. There are no fixed standards as to the amount of punitive damages a jury can award.

What Happens If I Am Injured In The Course Of Medical Treatment?

Tue, 29 May 2007 21:19:00 GMT

If a medical professional makes an error that results in injury to the patient, the patient may be able to sue the negligent party or parties for monetary damages to compensate him or her for the medical injury. Professional negligence means a negligent act or omission by a health care provider in the rendering of professional services which is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed.

The term medical malpractice is generally used to describe any treatment, lack of treatment, or departure from accepted standards of medical care on the part of a health care provider that results in injury to the patient. Some examples of medical malpractice include incorrect diagnosis, failure to treat, improper treatment, delay in treatment, prescription errors, surgical errors, rendition of services without informed consent, etc.

What Is The Time Limit For Filing A Claim?

Tue, 29 May 2007 21:19:00 GMT

A medical malpractice action for injury or death must be brought within one year from the date the claimant discovered the negligent act, but no more than three years from the date of injury. For retained foreign body cases, the statute is tolled until the claimant discovers or should have discovered the injury.

Who Can Be Held Accountable For The Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Generally, a medical malpractice claim can be brought against a licensed health care provider. This can include a person, corporation or institution licensed by the state to provide healthcare, medical services, nursing services or other health care services. A claim can be brought against physicians, dentists, nurses, therapists, hospitals, and pharmacists, among others.

California law holds a hospital liable for the acts of a physician if he is an actual agent of the hospital or when a patient is led to believe the physician is an agent. When a hospital holds out a physician as an employee, a patient may reasonably assume that the physician is an employee of the hospital without making an inquiry on the subject.

In general, public entities are immune from liability; however, they may be held liable for acts of their employees. The government entity has a duty to defend and indemnify its employees. Likewise, a public entity is liable for any injury proximately caused by an act of an independent contractor of the public entity to the same extent that the public entity would be subject to liability if it were a private person. A public entity is immune from liability for punitive or exemplary damages. However, under certain conditions, the public entity, other than the state, is authorized to pay punitive or exemplary damages on behalf of the employee. Public entities may insure themselves against all tort liability.