The California Medical Malpractice Guide was created by our attorneys to help residents obtain maximum compensation from the negligent party. If you have been seriously injured due to hospital negligence, contact our office for a free consultation.
Most people think of going to the doctor’s office as a solution. To many, that is what it is, but for you, you found complications from your visit. Medical malpractice encompasses many possible scenarios from misdiagnosis to surgical error. It can be any type of medical professional who is responsible for your injuries including general practitioners, obstetricians, cardiologists, and plastic surgeons. The best way to determine if you have a medical malpractice claim and who is the liable party is to contact our office today for a free consultation. Our Los Angeles medical malpractice lawyer, Mindy Bish, is a wonderful and dedicated lawyer who will fight for your rights and your justice. Do not hesitate to give us a call.
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Types of Medical Malpractice
As previously mentioned, medical malpractice is a term that includes a lot of different scenarios. It is not as cut and dry as, let’s say, a car accident case. Here are six common medical malpractice types that you may fall under.
- Misdiagnosis. This is two-fold. Your doctor could check you and claim that you are fine, and free to go home while missing an issue that needs treating, or they could determine you have the wrong condition. Both of those two scenarios can be completely devastating. You may go without life-saving medicine, or you may be taking medicine that you do not need which may have unwanted side-effects.
- Delayed diagnosis. In this scenario, you may have found out what is wrong, but because your doctor missed it initially, you have unnecessarily suffered because of it.
- Failure to treat. You most likely know what your condition is, and you may have realized that you are not getting any healthier despite following your doctor’s orders. When your doctor gives you inadequate treatment, you may have a claim.
- Surgical errors. While this is not as common, it is completely devastating. Your surgery may have been performed incorrectly leaving internal damages. You may have gotten infection from dirty equipment. Your anesthesia might have caused damage. And most horrifying, you may have had the wrong surgery performed on you. Some people have even had the terrible misfortune of being wrongfully amputated. We will fight hard to win your case.
- Birth injury. Both mother and baby can be at risk of injury during birth, and while this is supposed to be a great experience for you, it may be terrible due to malpractice. There are many things that we can pursue for a claim, and we would be glad to talk you through yours.
- Medical product liability. While the liable party in this instance might not be your doctor, this is still medical malpractice. We would be going after the manufacturer of the product that caused you injury.
If none of these relate to you, that does not necessarily mean that you do not have a medical malpractice claim. Again, to be sure, you should sit down with a lawyer and see how we can help you.
What to Know About Medical Malpractice
These cases are very unique personal injury cases. With every injury claim, you will have a statue of limitations. For accidents such as slip and fall or truck accidents, the time limitations is going to be two years from the date of the accident. Because medical professionals are protected a bit more, it is harder to bring your claim. According to California statutes, you are to bring the claim within one year of discovering the malpractice or one year upon which you reasonably should have discovered it. It also states, you have three years upon the date of the injury. They enter in this line about discovering it within a year to make it harder for you to get rightful compensation. Because of this statute, we encourage you to bring your questions and concerns about medical malpractice to a lawyer right away so that you are not at risk of having your case thrown out. Even if you aren’t sure, there is no harm in coming into the office. You very well be eligible for a claim as well as full and fair compensation.
That compensation will come in the form of:
- Physical pain
- Mental suffering
- Medical bills
- Lost wages and lost earning ability
The best way to ensure that you are indeed getting full and fair compensation is to hire a lawyer. The insurance companies particularly don’t like losing money for medical malpractice. It is a hard case to fight, but we are experienced at what we do and we will not let the insurance company hassle you out of seeking a claim. We will be there to make them pay for what you have to suffer through.
Frequently Asked Medical Malpractice Questions
What Should I Do If I Think My Doctor Caused Me Harm?
If you believe that you’ve been injured, hurt, or made sick because of a doctor’s negligence, first thing you should always do is contact an attorney to speak with them about your circumstances and your facts. You always want to get a copy of your medical records. Obviously, it’s better if you get a copy of the medical records before the doctor’s know any sort of attorney’s involved because sometimes, when they know attorneys are involved, records can go missing.
You want to talk to an attorney, obtain your medical records, and run those records by a qualified independent medical professional that can evaluate the claim to see if indeed the doctor did make a mistake, or it was just a stroke of bad luck for you.
What Qualifies as Medical Malpractice?
The other day, a young gentleman came to my office. He believed he had a medical malpractice claim against his doctor. We were discussing his case and he wanted to know what a breach of the doctor’s duty was. I explained to him that a duty is an obligation for the doctor to act like any other doctor would under the same conditions. For example, we had a case where a man went into the ER. He was complaining of shoulder pain, upper back pain, and shortness of breath.
The shortness of breath with the shoulder pain should have been enough to put any reasonable emergency room doctor on notice to test his heart for a heart attack. However, they did not do that and 36 hours later, the heart attack went undetected and, unfortunately, the man died. That’s a situation where a reasonable doctor should’ve seen the shortness of breath and immediately ordered the test to see if he was having a heart attack. In that case, the doctor did not do that and that would be a breach of his duty of care.
How Do I Pick the Best Attorney?
Medical malpractice claims are very difficult, complex, and they require a special skill set. There are certain caps in this area of the law, so when choosing a medical malpractice attorney, you want to make sure that you have someone who is skilled in this area of the law, understands the different rules that apply, and is skilled in not only trial, but the arbitration setting. In a lot of medical malpractice cases, people are subject to arbitration rather than trial.
Those are some of the factors that you want to consider. Also, you want to think about what sort of relationship or connection you have with the attorney because this is a relationship that is going to last several months, if not several years, so it’s certainly important to choose somebody that you’re comfortable with.
Mistakes to Avoid After a Medical Malpractice Injury
The other day, a lady contacted our office. She believed that she had been injured through her doctor’s negligence. She had some ongoing health problems and conditions that she was certain was related to some of the advice given to her by her doctors. However, the problem was that it had been nine months since she had been given that advice. Here in California, you only have one year to file a claim against a doctor for any sort of perceived medical malpractice. By waiting nine months, she effectively cut off anyone’s ability to get records and investigate the claim, and make a decision or a determination about whether the doctor did commit malpractice, before having to file. This is a common mistake that many people make; they wait too long to find an attorney.
Another mistake people make is they will just hire any attorney off the street, somebody that’s not necessarily really familiar with medical malpractice claims and how they work. That can also work against you in that things can take longer than they should, cases do not get worked up like they should, and so you end up putting less in your pocket at the end of the day.
What Damages Can I Recover?
In California, we have something called caps on medical malpractice claims, which means that if you’re loved one passes away due to a doctor’s medical negligence, you are only allowed to recover a maximum of $250,000.
However, if you are injured through a doctor’s negligence and you live, it’s a little different. You’re capped at the $250,000 for any pain and suffering you might have, but you are entitled to recover economic damages, which would be the cost of medical bills, treatment, and lost wages that you suffer as a result of your injuries. Those are the different items that are recoverable for medical malpractice here in California.
Do Most Medical Malpractice Cases Go to Trial?
Here in California, if a doctor agrees to settle a medical malpractice claim, if the amount of that settlement is over $30,000, it has to be reported to the state medical board. I can tell you that it’s often extremely difficult to get medical malpractice claims resolved because quite often, the doctors do not want to consent to any settlement, because any settlement over $30,000 is going to be reported to the medical board. In certain instances, it is more likely that you’ll go to trial if you have a doctor that will not give their consent.
Will My Case Be Affected if I Didn’t Follow Doctor’s Orders?
A young woman came into my office and she had a surgery and she believed that the doctor didn’t do his job correctly and made her worse. However, she also told me that she didn’t follow all of the doctor’s instructions and she wanted to know if that would destroy her claim. I explained to her that, although you should always follow your doctor’s advice and orders and take care of yourself, that will not defeat your right to any sort of recovery for medical malpractice that has been committed. It can, however, certainly affect the amount of money damages that you’re entitled to recover. Although it’s very important to follow doctor’s orders, the fact that you didn’t will not defeat your right in its entirety, but it certainly can lessen the value of your claim.
What is Medical Malpractice Arbitration?
There are several key differences between arbitration and litigation, the primary difference being that in a lawsuit, you can walk into a courtroom and have your case heard by 12 jurors; 12 of your peers will hear the evidence and independently evaluate it. In arbitration, you have what’s called a neutral or an arbitrator. Sometimes you can have a panel of arbitrators, up to three or five, and they get to hear the evidence that’s put before them and they make the decision. The interesting thing with arbitration is that your neutrals are people that have experience in the legal profession and the legal field, unlike jurors, so your arbitrator is going to be either an attorney or a retired judge, and that can greatly affect the decisions that get made about your case, and it can affect the amount of money that you recover in your case.
How Much Are Medical Malpractice Attorney Fees?
The other day, a young man contacted our office about a possible medical malpractice claim that he believed he had against his doctor. One of the questions that he asked was, “How much do you charge? What do I have to pay an attorney to represent me in this case?” Most, virtually all, medical malpractice attorneys work on what’s called a contingency fee. What that means is you’re not going to take any money out of your pocket upfront. It means that we’ll take on the case, we investigate it, we litigate the case, and you don’t pay anything until there’s a resolution at the end, and that fee varies. In California, there are special rules that apply to the fees that a medical malpractice attorney can charge.
Should I Speak to the Insurance Company for the Doctor?
The other day, a young man contacted our office. He believed that he was injured through his doctor’s malpractice. The doctor’s insurance company wanted to speak with him, and he contacted our office first and asked if I thought that he should give them a recorded statement. I explained to him that the insurance companies for the doctors are not interested in him; they don’t really care whether or not he’s been injured. Their whole job and purpose is to try and minimize the value of his claim and to try and defeat any sort of claim he might have. I explained to him that it is never wise or safe to speak with any insurance representative for the doctors.
How Do We Prove Causation?
I was having a conversation with a young woman about her medical malpractice claim. I was explaining to her that we needed to show that what the doctor did caused her injury. This is what we refer to as causation. It’s important to prove that the doctor made a mistake, but you also have to prove that that mistake the doctor made actually caused your injuries. If the doctor made a hundred mistakes, but none of those mistakes actually caused your injury, then you have no claim against the doctor. Quite often, you have to retain other doctors to look at the medical records and look at the facts of your case to determine whether or not the doctor’s conduct was the cause of your injury.
What Scenario Might Keep Me from Having a Claim?
I had a woman contact my office who believed that she had a pretty serious claim against her doctor for medical malpractice. I, unfortunately, had to have a conversation with her and explain to her that although she was very injured, the doctor didn’t actually do anything wrong because his standard did not fall below the standard of care. For example, this woman needed surgery and they scheduled the surgery for about a month out. She believed that the surgery should’ve been performed on an emergency basis and had the surgery been performed on an emergency basis, she wouldn’t have gotten as sick as she did.
There was nothing to indicate to the doctor that her condition was serious or life-threatening, so he waited. The moment she started showing signs that perhaps she was in a life-threatening situation or condition, he did what every doctor is supposed to do – he told her to go immediately to the emergency room. The fact that he scheduled the surgery for a month out didn’t fall below any medically acceptable standard of care, and he did everything that he was supposed to do. It was just unfortunate that her illness came before the date of the surgery.
How Long Will This Case Last?
Medical malpractice claims are a little different than average claims in that you have to file a suit within one year. For most personal injury claims you have two years, but for medical malpractice actions, you only have one year. You also have to put the doctors on notice that you are filing the claim against them.
Additionally, many doctors have arbitration agreements in the papers that you sign with them, so instead of going to court and having a trial in a courtroom, quite often, many of these cases are sent to what’s called arbitration. Arbitration can be a lot quicker or a lot slower than a regular trial, depending on the arbitrator, the number of parties, and how quickly discovery can be conducted. There’s no hard and fast rule, although most claims can and should be resolved somewhere between one and four years.
How Long Do I Have to File a Suit?
Here in California, you only have one year to file a claim against a doctor. You can extend the statute by 90 days by sending what we call a 364 letter. If you send the CCP 364 letter on the 364th day, you will have an extra 90 days to file your lawsuit, but in general, you only have one year from the date of injury to file your claim.
How Much is My Case Worth?
In California, we have medical malpractice caps. What that means is that money that they can collect for pain and suffering is capped at $250,000, which means – and as terrible as this is – if a doctor mistakenly takes off the wrong leg, you’re capped at $250,000. If they go in and open you up and leave a sponge inside of you and cause horrific damage, you’re pain and suffering damages are capped at $250,000.
The only other area you can recover is for what we call economic damages. If you are harmed through a doctor’s negligence and you have a lot of medical bills, you’ve missed a lot of work, or you have a lot of future medical bills, those can be compensated as well. While your pain and suffering damages are capped at $250,000, your economic damages will vary from case to case.
Call Our California Medical Malpractice Lawyer
If you want legal representation to help you get through this difficult time, please contact our Los Angeles office today. Mindy Bish is our full-time medical malpractice lawyer dedicated to fighting for your rights to full and fair compensation.
About the Author
Stacey Cutting is an associate at Bish & Cutting, APC, dedicated to helping clients to recover from their catastrophic personal injury and wrongful death cases. Stacey attended law school at the University of La Verne, and graduated at the top of her class. Since she began practicing in 2009, she has only ever represented injured plaintiffs, taking bold yet measured actions to root out those who violate the safety rules that protect us all.
Stacey has taken successful approaches to personal injury cases by always advocating for what’s best for her client, and never backing down. She is a faculty member at the Keenan Trial Institute, specializing in teaching other attorneys about taking meaningful depositions to help move their clients’ cases forward.
