Medical malpractice is a professional negligence on the part of the healthcare provider that causes the treatment to have an unacceptable standard of practice in the medical community. Negligence on the part of a doctor, nurse or dentist can happen by act or omission and patients who have been injured during medical treatments, instead of being cured for their illnesses, have the right to seek just compensation.
Types of medical malpractice
- misdiagnosis or delayed diagnosis,
- failure to treat,
- surgical errors,
- birth injuries,
- medical product liability
Injuries caused by medical malpractice
- post-surgical illness,
- incorrect treatment which can lead to an exacerbation of an existing problem,
- adverse events caused by incorrect medication
Severe injuries caused by medical malpractice
- severe brain damage
Elements of negligence presented by our medical malpractice attorney in Los Angeles
- breach of the duty of care,
- injury caused by the said breach,
- the damages resulting from the breach
Burden of proof
Beared by the plaintiff
Statute of limitations
- one year after discovery or three years from the date of the injury, whichever occurs first;
- an exception occurs in the case of a foreign object left in the patient's body during surgery
Exceptions to the extension of the filing deadline
Healthcare provider fraud or mistake concealment
- medical bills (current and future, related to the injury),
- lost wages (current and future, caused by the injury)
- pain and suffering,
- loss of companionship,
(Our medical mapractice attorney in Los Angeles can help you apply for compensation for these damages)
$348,065 - the average payout for medical malpractice claims in 2018, according to the U.S. National Practitioner Data Bank
In California, thus in Los Angeles, there is a $250,000 cap on noneconomic damages
Special steps followed by our medical malpractice attorney in Los Angeles
- establishing the doctor-patient relationship;
- gathering evidence to show that there is an injury and a negligence
Intention to file the case notification
A common 90 days advance notice is offered to the healthcare provider in Los Angeles, informing of the intention to sue.
Medical malpractice in case of minor children
The lawsuit is filed by the parents/legal guardian.
There is an exception to the statute of limitations in case of children younger than six years (until they turn eight)
Limits on the lawyer's fees in medical malpractice cases
- 40 percent of the first $50,000 recovered;
- 15% of any amount over $500,000;
Our Los Angeles personal injury attorneys can offer more details.
Before filing a lawsuit for medical malpractice in Los Angeles or in any other city in the state of California, you should be aware of the legislation that applies in these cases and a consultation with a medical malpractice attorney in California will help you better understand the legal implications.
Our medical malpractice attorney from Los Angeles can help you if you have been the victim of medical malpractice.
The Medical Malpractice Law in California, explained by our medical malpractice attorney from Los Angeles
Medical malpractice occurs when a healthcare provider breaches the existing standard of care in the medical field when providing treatments to a patient. Examples are numerous and they range from misdiagnosis to doctors who leave behind instruments when performing a surgery or doctors who make life-altering mistakes during surgical procedures or simply those who administer the wrong type of medicine and endanger the patient's life.
Although a number of things can go wrong during surgery, the patient shouldn't have to worry about the doctor’s competency. Medical malpractice cases need to be handled by professionals because oftentimes, the case is not simply a matter of establishing if the doctor has breached the generally accepted standard of care. Together with our medical malpractice attorney from Los Angeles you will be able to assess the strengths of your case, file a lawsuit, gather the evidence and go to trial.
Our medical malpractice attorney from Los Angeles invite you to watch this video about the particularities of a medical malpractice case:
Medical malpractice attorneys from Los Angeles
According to law, the applicable statute of limitations for medical malpractice claims in California is one year after the act that caused the injury has been discovered (the discovery rule) or a maximum of three years after the injury took place, whichever statute of limitations occurs first. Victims of medical malpractice who want to go to court should seek the help of a medical malpractice attorney from Los Angeles as soon as they suspect such a case.
The statute of limitations in medical malpractice cases also applies when a minor child is involved. The parents of a child who is under eighteen years of age may file a medical malpractice lawsuit. This must take place within three years after the date of the malpractice. Lawsuits for children under the age of six must be commenced within three years before the child turns eight.
A statute of repose is also applicable in the state of California: this is an ultimate time limit on medical malpractice cases of three years, regardless of when the victim discovered the injury associated with the malpractice. This applies in cases of fraud, intentional concealment or foreign objects left behind in the victim’s body.
The compensations that can be obtained through a trial by the plaintiff include compensatory economic damages - for medical expenses and life care expenses - or non-economic damages - for the physical and psychological harm caused by the injury. Punitive damages can also apply in medical malpractice cases in California. Our medical malpractice attorney from Los Angeles can help you if a medical malpractice case has resulted in a wrongful death.
When filing a medical malpractice claim, it is usually useful to remember the following characteristics for these types of claims:
the distinct statute of limitations: the one year and the three year periods that can, in some cases, be subject to a pause in how the past time is perceived.
the notification to the healthcare provider: it should be noted that the surgeon, doctor or whoever is believed to be at fault should be notified of the intention to sue within 90 days (at least) before the claim is filed.
the special cap on damages: this applies to those non-economic damages such as pain and suffering and the applicable amount limit is 250,000 USD; this does not influence the economic losses.
the limit on the attorney’s fees: according to the local laws, attorneys who work for the plaintiff are limited when it comes to the fee they can charge in a medical malpractice case; our team of medical malpractice attorneys from Los Angeles will only charge you after you receive the settlement.
One of our attorneys can help you determine not only the applicable time limit in your case but will also assist you when formally notifying the doctor or medical practitioner of your intention to sue them. The notification should always include information about the claim (its legal basis), the types of injuries sustained because of the defendant’s actions as well as the types of losses sustained as a direct result of said injuries.
In some cases, the defendant may try to argue that the plaintiff is also at fault, although partially, for not having observed the doctor’s instructions. When this is found to be true, according to the pure comparative negligence rule in California, the settlement amount will be reduced by the percentage the victim is found to be at fault for.
Limits on medical malpractice lawsuits
The statute of limitations is the time limit within which the victim has the right to file a lawsuit. After this time has passed, the court will most likely refuse to hear the case and you can lose important compensations that could have otherwise helped you. In most personal injury cases, the victim injured in a car accident, for example, has two years to file a lawsuit against the negligent party. However, medical malpractice is treated differently and it is important for the victim to know exactly how much time he/she has to claim compensations.
This type of claim can result when the victim is treated for another personal injury case, for example after having been involved in an accident on a motorcycle. Victims should know that they could reach out to our medical malpractice attorney from Los Angeles if this is the case.
The statute of limitations for medical malpractice is included in the California Code of Civil Procedure sections 340.4 and 340.5. According to law, the victim has one year after the discovery of the injury or three years of the date of the injury, whichever comes first. An exception to this rule applies in the case of surgical errors, more specifically those that involve the presence of a foreign object in the body, left behind after surgical intervention. In this case, the one-year discovery rule is applicable but there is no other time limit.
A different statute of limitations for medical malpractice also applies in the case of minors. According to law, a medical malpractice lawsuit must commence within three years for minors, except for children under the age of six. The parents have three years from the date of the injury to file the claim or until the child is eight years of age, whichever comes first. This can be an issue as the total statute of limitation can be shorter for children compared to adults.
If you have been injured by a medical care provider in California, our medical malpractice attorney from Los Angeles will help you file a lawsuit within the same year. Alternatively, if you suspect that you have been injured during a medical procedure and the three year period has not passed yet, we can help you build a solid case and file the lawsuit within the three-year time limit.
It is also important to note that in some cases arbitration agreements can alter the statute of limitations in medical malpractice cases (depending on the specific terms of the agreement). In those cases where the plaintiff is considered incompetent to file the claim himself (for example in case of mental illness or in case of severe physical limitations), a legal guardian can file the claim within the time limit on his behalf.
In some cases, the total statute of limitation period can be subject to an extension. This applies to those cases in which a surgical instrument or an otherwise non-therapeutic item was left behind inside the body or when the medical provider/the defendant intentionally conceals details about the case or he is accused of fraud.
The 250,000 $ cap on medical malpractice claims is controversial; however, it limits the non-economic damages that can be recovered, not the economic ones. This means that the plaintiff will receive 250,000 $ at most for the pain and suffering, the loss of enjoyment of life and other psychological trauma that resulted after the said medical malpractice action took place. Plaintiffs should know that they will not be limited to a certain amount when asking for the costs for the medical treatment needed after the malpractice took place or the lost income that occurred as a result of them not being able to work because of a doctor’s wrongful acts. The victim can ask for quantifiable losses after the medical malpractice both for the ones that occurred before the legal action was initiated and for the future ones.
A medical malpractice injury in California
Medical malpractice can occur during all types of medical procedures and, in order to be able to file a lawsuit against the medical professional who treated you, you will need to be able to prove the professional’s negligence.
In medical malpractice cases, professional negligence is described as the act or omission to act by a healthcare professional, while providing professional services, when this act or omission to act is the proximate cause of a personal injury or wrongful death case. The scope of the services provided must be included in the ones for which the medical professional is licensed for and which are not restricted in any way.
The statute of limitations can be complex in these types of cases and it is recommended to seek specialized legal assistance when you need to clearly determine the time you have at your disposal to file a claim. Likewise, it is important not to postpone the decision to take action indefinitely. Even if the time limit of three years applies in your case and if there is evidence of fraud or concealment by the defendant (which lengthens the total period, as stated above) it is important to observe the final deadline for filing the claim.
Emergency medicine malpractice
Patients who were not treated properly by a physician can make a claim against him/her by invoking medical malpractice. Individuals who have been given the wrong medicine or even those who went through surgery and discovered that foreign objects were left behind in the wound can request the services of a personal injury lawyer who can help them obtain compensations.
Some of the most common cases in which emergency physicians are accused of medical malpractice include:
failure to diagnose;
improper management of treatment;
improper performance of the chosen treatment or procedure;
failure to order medication.
Each of these mistakes made by the physician can alter the health of the patient and sometimes aggravate the disease. The most common conditions with which patients present themselves in an emergency room are myocardial infarctions and cerebrovascular accidents.
Hospital liability in emergency malpractice cases
If you were in an accident, rushed over to the emergency room and suffered another personal injury as a consequence of an emergency malpractice, you should know that the hospital is liable for the doctor’s misconduct. This is because the hospital is the employer, therefore it can be held accountable for its employees’ misconducts. Even it may seem simple to prove a personal injury was sustained due to an emergency procedure that went wrong, help from medical malpractice attorney from Los Angeles is recommended as each case is particular and various degrees of injuries may occur.
Even if negligence is invoked in most emergency malpractice cases, this theory does not apply to every case, as the injury may be caused by another employee of the hospital. This is the most important part of an investigation during a medical emergency malpractice suit in Los Angeles: determining who is liable for the personal injury suffered. There are two hypotheses, the doctor alone or the hospital can be sued. Liability will be established based on the relation between the doctor and the hospital, because the medic can work as a contractor for the hospital, case in which the doctor will bear the consequences of his or her actions. That is why hiring medical malpractice attorney from Los Angeles is important when filing a lawsuit for emergency malpractice.
Claiming compensations for a medical wrongdoing
Claims for medical malpractice cases are based on proving neglect. You are entitled to report any medical malpractice case and claim compensations for your losses as a result of the wrongdoing. Whether it is more time spent in the hospital (which caused you to lose more wages) or a number of medical expenses that occurred as a direct result of the physician’s negligence, you can claim monetary compensations for your losses.
Our medical malpractice attorney from Los Angeles can help you make a solid claim by gathering all the possibly relevant information. Your medical chart and even eyewitnesses, like family or other patients, can help you prove your case.
The elements of negligence in medical malpractice cases
Most personal injury cases involving medical malpractice are based on showing that the doctor was negligent. For this to be plausible, the plaintiff needs to show that a doctor-patient relationship existed and that the said physician had a clear duty of care.
In order to establish negligence, victims should prove the following:
- the medical professional had a relationship with the patient and a duty of care a duty of care;
- the doctor breached that duty of care (he deviated from the standard of care);
- the health of the patient was directly influenced by the said deviation from the standard;
- the injuries have affected the patient’s quality of life.
Just because the treatment result is not the one you have hoped for does not mean that you have a personal injury case involving medical malpractice. It should be very clear that the doctor was negligent. A medical malpractice attorney from Los Angeles can help evaluate your case and help you move forward with your claim.
Waiting too long to get the adequate medical treatment can hurt your case in two ways: the decision to file a personal injury claim after you’ve discovered the impact the accident has had on your health can come too late. California has astatute of limitations of two years for personal injury cases, so your time to file a claim is limited. Secondly, gaps in your medical treatment are likely to be interpreted as a lack of consistency in court and they may harm your case.
One of our medical malpractice attorney from Los Angeles can help you gather the needed evidence and file a personal injury claim in due time.
Inconsistencies in your medical treatment
An obvious inconsistency in the medical treatment you’ve received after a vehicle accident or a slip and fall, for example, can lessen the amount of your compensation. The insurance claim adjuster will try to look or these inconsistencies to devalue your claim. A gap in treatment may be interpreted as evidence that your injuries are not as severe as you claim.
Two types of inconsistencies are possible: you’ve either sought medical treatment too long after the accident or you did see a doctor but did not follow through with the treatment until some months after the first consultation.
How to prevent gaps in medical treatment after a personal injury accident
The simplest way to avoid medical treatment inconsistencies is to follow the instructions you receive from your doctor and follow through with the treatment, as prescribed.
Not all gaps in the medical treatment mean that you have been inconsistent after an accident. A medical malpractice attorney from Los Angeles, together with your treating physician, can help you gather the evidence needed to explain these gaps.
How to prove medical malpractice in the emergency room
There are a few basic things to prove when filing a claim for emergency room medical malpractice in Los Angeles. Among these, you should know that from the moment you or a next of kin signed the admission papers the doctor-patient relationship is created and this is the first proof for such claim. Next, it is the medical malpractice attorney from Los Angeles’ role to establish that the doctor’s negligence is the one causing the injury which had specific damages. The evidence can be based on higher medical bills, complications, more physical pain than normal. Testimonies and special medical review panels may also be required when establishing medical malpractice.
You should also know that the Good Samaritan rulehas no validity in an emergency malpractice suit.
Marc Y. Lazo is specialized in personal injury cases as well as in complex business and commercial litigation. He has tried numerous cases to successful verdict and has obtained multiple six-figure judgments in both state and federal court.