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Medical Malpractice


Medical malpractice cases refer to claims that a health care provider violated the accepted standard of care while treating a patient, and that the violation resulted in an injury to the patient. The damages resulting from medical malpractice can be caused by an action of the health care provider, or by the health care provider’s failure to take action.

A medical malpractice case may be pursued by a party who was injured by a licensed health care provider. Some examples of licensed health care providers are medical doctors, nurses, physical therapists, and mental health care professionals.

Medical Negligence

Medical malpractice actions are often based upon the legal theory of negligence. Such claims arise from instances where a medical professional violated their duty of care to the patient, and that the violation resulted in an injury to the patient. Some examples of medical negligence include:

  • improper technique in performing a medical procedure;
  • failure to properly note and diagnose a medical condition,
  • Failure to provide medically appropriate treatment,
  • Failure to commence treatment in a timely manner
  • Failure to prescribe an appropriate dose of medication.

Informed Consent

Medical malpractice cases may also arise in instances when a patient did not give informed consent for a medical procedure. These types of cases are appropriate when a patient was not properly informed that a material risk for a medical procedure existed, and the patient would not have agreed to the procedure had the patient been aware of the risk.

Informed consent claims can also emerge when a course of treatment or surgery was changed after consent was given by the patient. In some circumstances obtaining the patient’s consent prior to the commencement of medical treatment is not possible. An example of this could be when a medical provider is treating a patient for some sort of a head trauma which affects the patient’s ability to understand the nature of the procedures needed to prevent further complications from occurring. In such instances, it may be appropriate for consent to be obtained from a third party such as a guardian, spouse, or parent.

Available Damages in California Malpractice Cases

The damages which are available in medical malpractice cases have important similarities and differences to those damages which are available to plaintiffs in other personal injury claims. That is, damages in medical malpractice cases can be divided into two general categories. The first category of damages that are available to medical malpractice plaintiffs are often referred to as called “special damages,” such as lost wages (past and future), medical costs (past and future), and other out-of-pocket expenses. The second category is referred to as “general damages,” which include pain and suffering that the patient experienced as a result of the injury. In rare and extreme cases, the plaintiff may be entitled to recover punitive damages against the defendant. Punitive damages are designed to punish the defendant for their outrageous conduct.

Limitations on Damages

An important distinction to other injury claims in California is the limit of general damages that a patient can recover in a claim against a medical provider for malpractice. The Medical Injury Compensation Reform Act which was passed in 1975 and subsequently codified as California Code of Civil Procedure § 3333.2, placed a $250,000 limit on the general damages in such cases.  In 2023, a new law went into effect which changed the system for awarding damages in medical malpractice cases in California. The new legislation established two separate caps, depending on whether a wrongful death claim is involved. In a wrongful death case, the cap increased to $500,000 for cases filed on or after January 1, 2023. Each January 1st thereafter, this cap increases by $50,000 until it reaches $1 million. If the medical malpractice case does not involve wrongful death, the cap starts at $350,000, and increases each year by $40,000 until it reaches $750,000.

If there is a cause of action other than medical malpractice which exists from a series of events, the limit of general damages does not apply to the independent cause of action. An example of this could be a claim for the tort “battery” in a case where consent to perform a procedure was not obtained by the medical provider prior to the procedure being performed.

Joint and Several Liability

When there is more than one defendant that is sued in an action, the legal principle of joint and several liability can apply. That is, the court may find that each defendant is required to pay the full amount of the verdict to the plaintiff. This guideline helps to ensure that a victim of medical malpractice will be compensated for the full amount of the award even if one of the defendants has insufficient funds or insurance. In California, joint and several liability applies for “special damages.” However, the state of California has modified the policy to state that defendants in medical malpractice cases are only liable for the “general damages” that are proportionate to their independent percentage of fault.

The Collateral Source Rule

Under the conventional “collateral source rule” that dates from 1854 in California, benefits received by the victim of medical malpractice from third parties, such as health insurance companies, would not be considered when calculating the damages relating to a claim. However, in medical malpractice actions in modern day California, the defendant can choose to offer evidence of the plaintiff’s receipt of benefits or payments from a third party which are connected to the injury. If a defendant chooses to present such evidence, the plaintiff is then permitted to introduce evidence of any amounts already paid to secure his/her right to those benefits, such as monthly premiums to an insurance company.

The Statute of Limitations for Medical Malpractice in California

The statute of limitations is the law which limits the amount of time in which a person has to file a lawsuit. For adults in California, the law states that medical malpractice lawsuits must be filed within one year of the patient discovering the injury, or one year which the person reasonably could have discovered the injury. Additionally, no medical malpractice case may be filed more than three years after the injury unless the delay was caused by fraud, intentional concealment, or is one which involves a foreign object. If the case involves a foreign object in a person’s body, the statute of limitations is tolled until the patient discovers or reasonably should have discovered the presence of the object.

For minors under the age six, a case may be filed within three years or before the minor reaches the age of eight, whichever is longer.

Why Consult a Medical Malpractice Lawyer at Hemming, P.C.

If you believe that you have been injured by medical malpractice, the right lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable claim under California law. Medical malpractice cases can be extremely complex.

Hemming, P.C. is a dedicated law firm that has experience in medical malpractice. Trust us to give you the honest support and representation that you deserve. We are equipped to handle a variety of medical malpractice cases in California, and we’ll assist you in getting the best result possible for your specific situation.