According to California law, medical malpractice refers to a negligent act or an act or omission committed by a healthcare provider. A healthcare provider may perform the omission act while rendering professional services. The act of omission may then be a proximate cause of personal injury of a patient or wrongful death of a patient. The said acts of the medical professional must be within the scope of services for which the medical practitioner is licensed to perform. If you are a victim of medical malpractice, we at the San Diego Personal Injury Law Firm can help you seek compensation.
Medical Malpractice Under California Law
Medical malpractice laws apply to a wide range of health providers in the medical sector. The professionals include chiropractors, doctors, nurses, psychologists, and podiatrists. Other possible respondents in medical malpractice cases include pharmacists, hospitals, laboratories, clinics, and physical therapists.
For a medical practitioner or a medical facility to face medical malpractice charges, their actions must be a proximate cause of personal injury or wrongful death of a victim. A proximate cause refers to an event that is closely related to an injury. A proximate cause is a crucial element in personal injury cases. It serves as a reasonable connection/interrelation between the act of omission or negligence of the respondent and the damage suffered by the victim.
A proximate cause exists when the injury or damage suffered by the victim is a foreseeable result or outcome of negligence. For example, if a doctor negligently injects the wrong medicine into a patient, a proximate cause of damages suffered by the patient exists. The patient or the victim has to prove the causation of the injuries. Causation refers to the aspect of a victim to prove that the injuries suffered were a result of the negligence of medical practitioners. It must be evident that medical practitioners did not meet the acceptable standards of care. The physician or the respondent may try to show that the victim attributed to his/her own injury. It is for this reason that a victim needs the help of a personal injury attorney to prove the negligence of the medical practitioner.
Claiming Non-Economic Damages in Medical Malpractice Cases
According to California law under California Civil Code 3333.2, a victim can claim up to $250,000 on non-economic damages in cases involving medical malpractice. The law outlines that if a person suffers damages due to professional negligence of a healthcare provider, the person is entitled to compensation. Non-economic compensation helps to cover the pain, suffering, disfigurement, physical impairment, and other non-pecuniary damages suffered.
The cap of $250,000, according to California Civil Code 3333.2, is in accordance with the Medical Compensation Reform Act (MICRA). Voters in California passed the act, and the act came into effect in 1975. The act puts a cap on the compensation for damages that are difficult to attach value on. Other non-economic damages may include loss of enjoyment of life, scarring, inconvenience, and loss of a limb or an organ. Other than the cap on the non-economic damages, there is no other cap applicable to the amount of compensation a victim can seek in a medical malpractice case.
Do Punitive Damages Apply in Medical Malpractice Cases?
In some instances, the victim can recover punitive damages in a medical malpractice case. For instance, if the victim clearly proves that the respondent committed fraud, malice, or oppression, the victim may qualify for punitive damages. For punitive damages to apply, it must be evident that the actions of the respondent are despicable. It must also be evident that the respondent carried out the acts of negligence or omission intentionally. For punitive damages to apply, the respondent must have acted with conscious disregard of the safety or the rights of other people. It means that the respondent acted with gross negligence or acted recklessly.
According to California law, acting in gross negligence is a more severe crime than acting in ordinary negligence. However, it is not as severe as acting in recklessness. Gross negligence, according to California law, refers to lacking any care. You completely depart from what a reasonably careful person would do in a similar situation to yours to prevent yourself or other people from suffering harm.
On the other hand, recklessness refers to a high degree of gross negligence or negligence, but it is less than performing intentional harm. You may be guilty of acting in a reckless manner if you are aware that your actions may cause harm, and you choose to disregard this risk and perform the risky act. Recklessness has a higher magnitude than failing to take precautions. If another person suffers an injury due to your recklessness, the court may require you to compensate the victim for compensatory damages. Punitive damages may also apply in a medical malpractice case involving recklessness.
Statute of Limitations in Medical Malpractice Cases
After suffering damages in a medical malpractice case, you have to seek compensation within a set period. This period is known as the California statute of limitations. The statute of limitations in California medical malpractice cases depends on whether the victim is a child or an adult.
If you are an adult, you have to file a medical malpractice case three years after the injury date. You may also file a claim within one year after you discover the injury if you do not realize the injuries immediately after the medical malpractice. If the person who suffers an injury due to medical malpractice is below 18 years, the statute of limitations will be the later of three years from when the unlawful act took place. Alternatively, if the minor was less than six years at the time of the injury, the statute of limitations may apply until the minor reaches his/her eighth birthday. The statute of limitations is also known as the limitations period. If the victim fails to file a lawsuit within the outlined statute of limitations, he/she loses the legal right to recover the damages suffered. The statute of limitations applies from when the victim knows or in the exercise of reasonable diligence the victim should have known about the injury suffered.
The aspect of delayed discovery applies to medical malpractice cases. According to the delayer-discovery rule, the victim enjoys a longer statute of limitations in some instances. The rule may apply in a case where the victim was not aware that facts which may have led to his/her damages or injuries were due to another person's wrongful conduct. The rule of delayed discovery may also apply if it is evident that even an investigation may not have disclosed that a particular situation or product contributed to the plaintiff's harm. In a case of delayed –discovery, a plaintiff should seek compensation within one year after discovering the damages.
There are some exceptions to the statute of limitations in California medical malpractice cases. A lawsuit against the professional negligence against a health provider may be paused if the respondent commits a fraud. The exception may also apply if the respondent intentionally conceals wrongdoing. The exception may also apply if there is a foreign body inside the injured person that does not have a diagnostic or therapeutic purpose or effect. The exception or pausing of a statute of limitations may also apply in medical malpractice cases involving minors. The minor's parent or custodian may collude with the respondent's insurer or the healthcare provider and agree not to file a medical malpractice lawsuit on behalf of the injured child. In this case, there may be an exception to the statute of limitations.
Proving Negligence in Medical Malpractice Cases
A healthcare provider may face professional negligence charges if he/she fails to use the necessary knowledge, skill, and care in handling patients. When assessing negligence, the court considers the care that other reasonably careful health practitioners would use in similar circumstances. The level of care, skills, and knowledge that a health practitioner should use is known as a duty of care or the standard of care.
To establish the duty of care and to prove that the health provider acted in a negligent manner, the victim may require the testimony of one or more experts. Other than proving negligence and the existence of a duty of care, the victim has to prove that the negligence of the respondent caused the victim's injuries. It is not enough or adequate that a particular treatment or diagnosis was wrong. It must be evident that there is something that the doctor should have done or should not have come, and it caused the injury to the victim.
Usually, medical malpractice cases in California rely on the doctrine of res ipsa loquitur. This doctrine assumes negligence when the instruments were within the control of the respondent. The doctrine may also apply if the injury that the victim suffers is the kind that does not usually occur if there is no negligence.
The Res ipsa loquitur doctrine allows the court or the jury to assume negligence even if adequate evidence does not exist to prove who caused the injury or the accident. As long as the turn of events shows that the respondent was a proximate cause of the accident, the respondent may be liable. The jury can assume that a patient suffered an injury due to the negligence of a healthcare provider without the existence of direct evidence. The doctrine of Res ipsa loquitur is beneficial in medical malpractice cases and personal injury lawsuits. In these cases, it is often difficult to get direct evidence about the person responsible for an injury. For the doctrine to apply, it must be evident that the injury or the accident did not occur due to something that the plaintiff did.
Upon filing a lawsuit for medical malpractice, you may get compensation for:
- Medical Bills
According to California law, if a person negligently causes injuries to another person, the negligent person should meet the medical expenses incurred by the victim. The medical bills may be met by the responsible person, the insurer of the respondent, or the responsible company. However, in most cases, the respondent does not pay the medical bills willingly. The respondent may delay paying the bills, forcing the injured person to file a lawsuit in court.
While waiting for the case to go to trial and settle, the injured party may have to use other options to pay for the medical bills. For instance, the victim may use his/her private medical insurance or public medical insurance to pay for the hospital bills. Normally, private health insurers and the government have a subrogation right. Therefore, when a victim gets compensation from the negligent party, the victim has to reimburse the health insurance company. This provision will only apply if the victim gets money or compensation from the wrongful. In some instances, the health insurance company may file a lawsuit on behalf of the victim.
How can you prove medical costs incurred while filing a personal injury claim? You will need to provide copies of your medical bills. The respondent's insurer may also request copies of test results and diagnosis, including copies of MRIs and x-rays. Your doctor needs to keep your relevant medical records. If a medical practitioner has treated you for several years, he/she should keep copies of your medical records outlining the medical procedures you have undergone. You only need to provide medical records for injuries suffered as a result of the negligence of the respondent. If you suffer from unrelated medical conditions, you do not have to provide documents for such conditions.
- Lost Wages
If you suffer an injury due to medical malpractice and you spend some time away from work, you can claim lost wages. Lost wages refer to all the income you would have earned if you would not have suffered injuries due to negligence of the health provider. Lost wages may include your regular pay, which may comprise of monthly salary or regular pay. Lost wages may also consist of overtime pay, bonuses, and commissions. The compensation may also take into consideration self-employment income. Lost wages also include your vacation days, sick days, and personal leave days. The compensation for lost wages may also include lost benefits or perks like free meals or car allowance.
According to California law, you have to claim for lost wages within two years after suffering the injury. Different types of injuries may have different statutes of limitations. In some medical malpractice cases, the statute of limitations may be as short as one year. The victim has to prove the amount of money he/she claims to have lost. If the victim suffers injury and stays out of work for a short period, the lost wages may be easy to calculate. In some instances, the victim may have been due for a salary raise at the time of the injury. In this, it would take the testimony of an occupational expert to prove this.
How can you prove the number of lost wages owing? You can obtain a lost wages letter from your employer to prove the amount of compensation you should receive. The lost wages letter sets out your job title and the date when you started working. The letter also outlines that at the time of the accident or injury, you were a valid employee at the organization. The letter may also outline the number of hours you work in a week and your regular rate of pay. The letter may confirm any details the court may require to determine the number of lost wages to award for injuries suffered due to medical malpractice.
- Lost Earning Capacity
According to California law, victims are able to recover lost wages in personal injury cases, including medical malpractice cases. Compensation for lost wages enables a victim to recover income likely to be lost in the future as a result of the injury or accident. A victim can be able to recover both past and future lost earnings and income. Lost earning capacity only considers the money the plaintiff is likely to lose in the future. It does not take into account the money lost prior to the commencement of the personal injury lawsuit. It may be hard to prove lost earning capacity because the losses have not happened.
For you to receive compensation for lost earning capacity, the injuries suffered do not have to be permanent. You may receive compensation for lost earning capacity if your injuries have not healed by the date of trial or settlement. Typically, it is easier to grant compensation for lost earning capacity if the victim has suffered severe or permanent injuries that may require prolonged treatment. The injuries may include traumatic brain injuries or back injuries.
How do you calculate the amount of lost earning capacity? You can get the compensation due by considering the amount the victim would have earned if he/she had not suffered the injuries. You then less the amount the victim will earn given his/her injuries. Lost earning capacity may comprise of overtime pay, salary, raises, bonuses, and commissions.
Several factors may affect the calculation of lost earning capacity. The factors include the age of the victim and the years to retirement. The court will also consider how long the injuries are likely to last. The court considers the likelihood of the plaintiff to return to his/her regular job. The health and wellbeing of the victim prior to the injury also determine the compensation awarded. The terms of employment of the employee and the long term employment goals of the employee also affect the compensation likely to be received.
- Pain and Suffering
California law allows victims to get compensation for pain and suffering experienced due to the negligence and the wrongdoing of another person. For pain and suffering resulting from medical malpractice, there is a cap of $250,000. The victim cannot receive compensation that exceeds this amount. There is no standard method of calculating pain and suffering. Pain and suffering are also commonly known as non-economic damages, and it is difficult to attach a value to these injuries. It is upon the victim to prove that he/she has suffered harm and is likely to continue suffering in the future. Based on the evidence of the judge and the evidence of the victim, the judge will decide the reasonable amount of compensation.
Physical injury is not important to prove the existence of pain and suffering. If a victim suffers emotional distress, there is no physical injury present to prove the existence of the injury. However, it is important to note that you are likely to get compensation for pain and suffering if you have suffered physical injury, and it is obvious that you are experiencing pain and discomfort. Pain and suffering are likely to result from long-term loss of a bodily function or permanent disfigurement.
In cases involving emotional distress or pain and suffering, it is important to get counseling. The testimony of a qualified mental health professional is crucial in proving that the victim has indeed suffered pain and suffering. Subjective symptoms of pain and suffering may include anxiety, insomnia, depression, and post-traumatic stress disorder. You may use objective evidence to prove pain and suffering, including x-rays, medical records, and comprehensive doctor's notes.
You may also get compensation for home health care. If you seek physical and occupational therapy after suffering injuries, you may get compensation for the same.
Why do you need a personal injury attorney to fight on your behalf? In most cases, the respondent may deny liability and claim that he/she is not responsible for your damages. It is only with the help of an experienced attorney that you can prove that you suffered the injuries. It is also through an attorney that you can prove that the respondent is a proximate cause of your injuries.
Contact a San Diego Personal Injury Attorney Near Me
If you or your loved one has suffered an injury due to the negligence of health providers and medical practitioners, the San Diego Personal Injury Law Firm can assist. We will help you file a medical malpractice lawsuit to seek compensation for the damages. Our attorneys are experienced in handling personal injury cases. Contact us at 619-478-4059 and speak to one of our attorneys today.