Every patient expects to undergo medical treatment without any complications. However, medical professionals might harm the patient due to medical errors. If you sustain any injuries during your medical care, you have the right to compensation from the responsible party. Seeking compensation for medical malpractice can be tough if you do not have any legal knowledge. That's why it is advisable to find professional legal representation to uphold your rights and ensure that you get the right compensation.
We at The LA Personal Injury Law Firm are well versed in medical malpractice cases in Los Angeles. We will ensure that you get the right legal advice and representation to protect your rights. Even so, it is crucial to acquaint yourself with relevant legal information to ensure that you do not miss a thing in your case.
Definition of Medical Malpractice in California
California law defines professional or medical malpractice as a professional negligence by a healthcare provider that resulted from an act of omission or deviation from the acceptable standards of practice provided in the medical community.
The law provides that the personal injury or wrongful death should be as a result of the act of omission or deviation from the responsible party. Also, the medical services provided to the victim should be within the scope under which the service provider is licensed and is not within the restrictions provided by a licensed hospital or medical licensing agency.
For an attorney to successfully prosecute a medical practitioner over medical malpractice, he or she must satisfy the legal elements associated with this sort of case. The aspects are as follows:
- There was a Valid Doctor-Patient Relationship
You can only manage to hold a physician liable for medical malpractice if you hired the doctor, and he or she agreed to treat your injuries or illness. If the doctor was not directly responsible for your treatment, then you cannot hold him or her liable for the wrongful death or injuries that you sustained.
- There was a Violation of the Duty of Care by the Medical Practitioner
In this case, a breach of the duty of care means deliberate professional negligence of the standard requirements for treating your injuries or your illness. Therefore, the doctor must have failed to maintain the required level of skills and care during the diagnosis and treatment process.
- The Violation of a Duty of Care Led to the Harm Sustained by the Victim or Patient
The professional negligence by the doctor must be directly associated with your injuries or wrongful death of your loved ones. So, you must provide valid proof to the court to support this element.
- The Patient Suffered Real Injuries and are Compensable in Damages
You must prove that the injuries sustained from the medical malpractice are genuine and meet the requirements for compensation. Both minor and severe injuries suit in this element. Also, if you incur any financial losses due to medical malpractice, you are still eligible for compensation.
Particular circumstances might lead to the rise of medical malpractice. These circumstances include:
- Improper or late diagnosis of an illness
- Incomplete treatment or improper administration of a treatment
- Failure to warn the patient of the known risks in the medical procedure or course of treatment
Responsible Parties for a Medical Malpractice
During a medical malpractice investigation, the attorney can hold a couple of people responsible for your injuries, depending on the kind of injuries sustained. Usually, doctors are the most culprits for the responsibility, but there are other third-parties such as the insurance company and manufacturers who can handle the situation. Each party holds the blame depending on the level of involvement of the incident.
Manufacturer of a Medical Device
For patients who use specific medical devices such as sleep apnea, pacemaker, among others, they can hold the manufacturer of their medical devices responsible if their injuries resulted from the devices. The manufacturer could suffer liability if there was a breach of duty of care or negligence, which led to the harm. Your attorney must verify the damages resulted from the manufacturer or the manufacturer's employees.
A Third Party
Sometimes it is hard to determine the person who is responsible for the damage. The doctors might be partially responsible for the incident, but other people hold the responsibility as well. In such a case, the attorney should do a thorough investigation to find relevant entities to the incidence. The more liable a person might be, the higher are the possibilities of being responsible for the damages.
An Insurance Company
There are moments when an injury might be the fault of an insurance company. Even so, you will always find the medical malpractice being connected to the medical staff. Even so, the insurance company should be held responsible for the injuries if all circumstances connect to it. For instance, the intentional negligence of their duty while a patient is claiming from their cover might be enough to hold them accountable.
The Hospital and the Medical Practitioners
In most cases, the hospital and every medical practitioner responsible for treating a patient are at risk of being accountable for medical malpractice. If the doctor were solely responsible for the injuries, he or she would face the victim during the settlement negotiation.
If there is a shared responsibility with the hospital, your attorney should pursue compensation from the organization to increase the maximum caps on damages. The California medical malpractice law usually applies to all healthcare providers, such as ( without limitation):
- Chiropractors
- Podiatrist
- Nurse
- Anesthesiologist
- Pharmacist
- Nurses
- Psychologists
The attorney usually sits across the negotiation table with the insurance representatives of the organization to settle the matter, which might take quite long. Alternatively, the attorney might seek negotiations or arbitration, which is quicker and will not use a lot of expenses compared to a civil suit.
Damages to Recover in Medical Malpractice
There are three types of damages a victim can recover from medical malpractice. These include compensatory damages, non-economic damages, and punitive damages.
- Compensatory Damages
Compensatory damages are sometimes referred to as actual or economic damage. They include damages incurred during the treatment or recovery of the ordeal that the medical malpractice could have put a victim. This includes costs incurred in purchasing drugs, acquiring therapy services, and lost wages.
- Non-Economic Damages
Non-Economic damage is a financial compensation one cannot quantify since they are non-tangible. For instance, it is hard to determine the monetary damages incurred through pain and suffering.
Damage Caps In Medical Malpractice Non-Economic Damages
Under California Civil Code Section 3333.2, there is a cap for non-economic damages for a victim who has suffered from medical malpractice. The code has put a cap of $ 250,000 as the maximum compensation a victim can get. The damage cap applies when the victim suffers from damages that include( and not limited to):
- Inconvenience
- Pain
- Suffering
- Scarring
- Disfigurement
- Loss of life enjoyment
- Loss of an organ or limb
Note that the court can only award the victim a maximum of the stipulated amount, depending on the circumstances surrounding the case. Also, there is no cap on the amount that a victim can get in compensatory damages.
Punitive Damages in Medical Malpractice
Under Civil Code 3294, the plaintiff can be awarded punitive damages for a personal injury if the damage was as a result of extreme recklessness or intentional. Also, the medical practitioner should have acted in oppression, fraud, or malice.
In such a case, to file a professional negligence claim, you must prove that the defendant acted despicably, and the act was intentional and completely disregarded the safety of the victim. This means that the defendant acted in gross negligence of his or her duty of care.
Shared Liability Rules
In California, the comparative negligence law applies to medical malpractice. In this law, the victim can claim compensation even if he or she was 99% responsible for the medical condition, negligence, and injuries sustained from the malpractice. For instance, if you fail to follow the instructions given by the doctor, and this resulted in a medical condition, you will be partially liable for the damages.
Therefore, a percentage of the total award will be exempted depending on the portion of your liability to the damages. For instance, if you get awarded with a $100,000 compensation, and you were 20% liable for the damages, your reward will be reduced to $ 80,000 to cover your fault.
How to Calculate Damages in Medical Malpractice
There are usually complex calculations included when determining how much one is eligible for compensation. Therefore, it is recommendable to involve a professional economist who will help in handling this process. All the same, most economists use the present value of the earnings that a victim has to approximate the lost earning now and in the future.
This is a concept that determines the total amount you could have earned in a span of your work-life if the damaged rendered you from working. However, there are factors such as the possibility of a promotion, inflation, and retirement benefit that usually affect your compensation.
Possible Problems When Calculating Your Lost Earning
Three potential problems might arise during the medical malpractice incidence and might cause a lot of issues in determining your lost earnings claims. These problems include:
You were Unemployed During the Time of Injury
If you did not have any job during the time of the incident, you could use your previous earnings to claim your compensation. However, if you have been unemployed for quite a long time, the defense might argue that you have no earnings’ claim since you have no earning capacity. In such a case, your attorney should work out a way to help you get compensated for your lost earning potential.
You had Planned to Take a New Job
You can get higher compensation as long as you can prove that you had acquired a job with a higher pay compared with the previous one.
You Were Self-employed
If you are running your own business, the defendant will try to examine your financial records and tax returns to determine whether you are eligible for compensation for your lost earnings. As a general rule, the amount you presented to the IRS as your earnings should reflect when the jury or defense request for your tax returns. Therefore, you should not include any string of jobs or payments that do not have justifiable evidence.
Calculations for Catastrophic Damages
Your medical malpractice case might sometimes involve catastrophic injuries that might need lifetime treatment. In such cases, the value of the compensation might amount to seven figures depending on the kind of injuries sustained.
- Calculations for Non-Economic Damages
There are no guidelines that the court can put a dollar value on non-economic damages such as pain and suffering. Therefore, the judge leaves this to the responsibility of the jury members to use their experience, background, and good sense to determine how much the damages are worth. Even so, many factors can affect the kind of decision that the jury will make. For instance, they might consider the plaintiff's circumstances based on the trial proceeding and his or her background or rely on a detailed testimonial about the situation that led to the malpractice.
They might also focus on the circumstances surrounding the non- economic damage such as:
- The severity of the intangible injury
- The period as to which the damage will last
- Economic impacts related to the intangible injury
- The total cost of the intangible injury to your life
Note that no matter how many factors influence the decision that the jury will make, they still have to observe the damages cap that applies, which is $ 250,000.
- Limits on Attorney's Fees
A lot of medical malpractice claimants always worry over the amount that they should pay their attorney. However, most of them work on a contingency fee basis, which allows them to charge according to the amount recovered from the damage. Under California laws, there is a sliding scale that limits the attorneys on their charges during a medical malpractice charge. The California Business and Professions Code 6146 provides the structure as follows:
- 40% for $ 50,00 recovered
- 33% for the next $ 50,000 – 100, 000 recovered
- 25% for the next $ 100,000 – 600, 000 recovered
- 15% for the recovered amount that is over $ 600, 0000
Statute Of Limitations In Medical Malpractice In California
Under the California Code of Civil Procedure section 340.5, a case that involves medical malpractice must be brought to court one year after discovering the injury and three years after the date of the injury. The discovery of the injury must be after a thorough assessment of the situation and concluding that all circumstances prove that the injuries were as a result of the mistakes or negligence of the responsible party.
However, if the discovery of injury was more than three years provided by the state, the claimant loses the credibility of bringing the case to court. Some exceptions apply based on different circumstances. These exceptions include:
Discovery of Foreign Object After a Surgical Error
There is no time limit to any case that involves the discovery of foreign objects in the body of a victim after a surgical error. However, the one-year discovery rule still applies, but it should be after discovering the foreign object.
Cases Involving Minors
Under California laws, cases involving minors ( victims below 18 years) must be brought within three years after the discovery of the alleged malpractice. However, lawsuits on behalf of a child below six years must be brought after the victim attains eight years. However, the claimant still has three years window to file the lawsuit after the child's eighth birthday.
The California laws also provide a toll on the statute of limitations until the party acting on behalf of the minor brings the case to court.
Cases that Requires Tolling
There are specific situations that can lead to pausing or tolling of the time limitations in medical malpractice cases. These situations include:
- When the responsible health provider conceals the medical mistakes
- When the medical practitioner accidentally leaves a foreign object in a patient
90 Days Prior Notice Rule
Under the California Code of Civil Procedure section 364, the claimant is required to provide a 90 days notice on the intention to file a lawsuit against the responsible party. So, you will provide a written notice to the medical practitioner, although there is no format provided on how to write the notice. However, the notice should provide details about the legal basis of your claim, the type of losses you have suffered, and the specific nature of your injuries.
The objective of writing the notice is to help you understand what could have gone wrong and if it something that the doctor can remedy. In most cases, your doctor will offer to perform a medical service to rectify the problem free of charge.
How to Bring a Medical Malpractice Case
It is recommendable to learn how to bring medical malpractice to court to ensure that the procedure goes as required. The process is as follows:
- Notify the Responsible Medical Professional
You should contact the medical practitioner responsible for the medical malpractice within the 90 days window provided under the California Code of Civil Procedure section 364. The rationale behind the notice is to understand whether the injury sustained is rectifiable and understand what went wrong.
- Contact the Medical Licensing Board
If the responsible medical professional does not respond to your notice, the next solution would be the medical licensing board governing the medical license of your alleged wrongdoer. The medical licensing board might not necessarily force the medical practitioner to compensate you, but they will issue enough threats to the expert and advise you on what to do.
- Prove Your Case has Merit
Ideally, any medical malpractice claimant should have a certificate of merit to prove that the civil lawsuit suits to be considered. However, in California, you do not necessarily have to file a certificate of merit from a qualified expert medical witness. All you need to get is a specialist’s medical testimony done under oath. The statement should show how exactly the actions of the health care provider fell short of the appropriate standards established in his or her medical practice.
The only exception that can make the jury assume the need for testimony is when all circumstances prove that the medical practitioner left an object inside the patient out of complete negligence.
- Choose to Settle the Case Out of Court
Sometimes it might be in your best interest to settle your case outside the court. This will help you resolve your damages in a timely fashion and cut down the costs as well. However, most responsible parties usually take advantage of this kind of decision and reject a large proportion of your claim.
The attempt to settle the case outside the court does not mean that you should not involve an attorney. Choosing one would help you negotiate better terms with the responsible party and determine whether your case is strong enough to go for a civil suit and seek a better settlement.
Find a Los Angeles Injury Attorney Near Me
Filing a legal case after medical malpractice can be tough. It requires one to be vigilant enough to ensure that the responsible party settles the right amount that you deserve. It can be hard to make a responsible party compensate for your damages without the help of a professional attorney. It is essential to hire a licensed attorney since they are conversant with your experience and will follow the right procedure to ensure that you get your settlement.
We at The LA Personal Injury Law Firm are committed to ensuring that we offer the best legal services to our clients. Reach out to us today at 310-935-0089 to contact one of our attorneys for the help you need in seeking compensation. We serve clients throughout the Los Angeles area. Call us today.
