Medical Malpractice

People tend to trust and follow the advice of their healthcare professionals, who are required to follow specific professional and ethical standards when diagnosing and treating patients. Unfortunately, in some circumstances they do not always adhere to these standards, which may result in injury to their patients.

Elements of a Medical Malpractice Claim

In California, just like for other negligence claims, an injured party has to prove the same elements to maintain a viable medical malpractice (sometimes referred to as professional negligence) claim:

1. Duty

The plaintiff must show that a healthcare profession owed a duty to the patient to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise.

Healthcare providers are expected to adhere to a reasonable standard of care when treating patients. This means they must provide treatment that is consistent with the level of care that a reasonably skilled and competent healthcare professional in the community would provide under similar circumstances. Generally, medical malpractice cases require expert testimony to determine what the standard of care is under the given circumstances.

Notably, it is not enough to sustain a medical malpractice claim on the grounds that a healthcare professional’s efforts were unsuccessful or that they simply made an error that was reasonable under the circumstances. The mistake must have been one where the practitioner was not as skillful, knowledgeable, or careful as other reasonable practitioners would have been in similar circumstances.

2. Breach

The plaintiff must then prove that the healthcare professional breached that duty. This involves showing that their actions or omissions deviated from what a reasonably skilled and prudent medical professional would have done under similar circumstances. Generally, this also requires expert testimony to establish the nature and extent of the breach.

3. Causation

Even if it can be shown that the medical professional breached the standard of care, the plaintiff must also establish that there was a proximate causal connection between the negligent conduct and the injury suffered. Causation refers to demonstrating that the healthcare provider’s breach of duty directly caused the plaintiff’s injuries or worsened an existing condition.

This element also necessitates the testimony and analysis of medical experts who can establish the connection between the negligence and the harm suffered.

4. Damages

Finally, the plaintiff must prove damages. This may include physical pain, emotional distress, medical expenses, lost wages, disability, or other quantifiable harm caused by the malpractice.

Who can you bring a malpractice claim against?

The term “healthcare professionals” is broad and a patient may bring a malpractice claim against doctors, dentists, nurses, hospital staff, hospitals, chiropractors, emergency medical technicians, physical therapists, or other medical professionals depending on the circumstances giving rise to an injury.

Under California law, an injured party may generally bring a malpractice claim against a healthcare provider (e.g. doctors), health care institutions (e.g. hospitals), and unaffiliated health care institutions (e.g. EMTs) or providers at a particular institution that commit a separate and independent negligent act. The injured party must still prove each of the four elements against each party separately to prevail.

What is vicarious liability, and does it apply in medical malpractice cases?

Vicarious liability refers to the concept that an employer is liable for the conduct of its employee when acting within the scope of employment. The main rationale is that it would be “unjust” for an employer to avoid responsibility when an employee causes injury to another arising from the “characteristic activities” of the employment. While this concept applies in most personal injury cases, California law prohibits hospitals from employing doctors directly. This makes it difficult to go after both the provider and the institution in the same case on the grounds that the institution is vicariously liable.

An injured party may attempt to claim that a healthcare provider was acting as an “ostensible agent” of an institution in an attempt to hold the institution liable, as well. In order to sustain such a claim, the plaintiff must show that the institution intentionally or recklessly created the impression that the healthcare provider was its employee or agent; that the plaintiff reasonably believed that the healthcare provider was the institution’s employee or agent; and that the plaintiff reasonably relied on such belief.

Usually, ostensible agency is challenging to prove. The plaintiff typically has to show that the healthcare provider and institution were both independently negligent in order to maintain claims against both.

Types of Medical Malpractice Claims

There are many different types of medical malpractice claims, each of which still require the plaintiff to prove the same basic elements listed above. These include but are not limited to:

• Diagnostic errors: An example includes when a healthcare professional misdiagnoses a patient or fails to timely recognize and treat symptoms of a medical condition.

• Failure to treat: This may occur when a healthcare professional fails to perform necessary tests, fails to review a patient’s medical history before providing care, discharges a patient prematurely, or neglects to provide proper instructions for follow-up care.

• Surgical errors: Examples include failure to follow the correct procedures or guidelines, operating in the wrong place, removing an incorrect body part, or leaving medical instruments or materials inside of a patient following the procedure.

• Anesthesia errors: This may arise anytime during a surgery and includes failure to educate a patient about the risks of anesthesia, administering the wrong type or dosage of anesthesia, or leaving a patient sedated for too long.

• Medication errors: Examples include prescribing the wrong medication for the patient’s condition, prescribing a medication that causes a patient to experience an allergic reaction, prescribing medications that interact harmfully with the patient’s other prescribed drugs, administering medication to the wrong patient, or administering the wrong dosage.

California’s Medical Injury Compensation Reform Act (“MICRA”)

Under MICRA, there are certain rules that apply specifically for medical malpractice cases. For instance, if the case does not involve the death of a patient, there is a limit of $350,000 that the plaintiff may recover for non-economic damages, which is adjusted annually for inflation. Non-economic damages include things like pain and suffering, loss of enjoyment of life, inconvenience, and loss of consortium.

In contrast there is no upper limit for economic damages. Economic damages include loss of past and future earnings, and past and future medical bills.

For wrongful death cases, the non-economic cap is currently $500,000 with yearly adjustments for inflation. In some instances, multiple caps may apply if both the healthcare provider (e.g. a doctor) and the institution (e.g. a hospital) were independently negligent.

In addition, MICRA governs the amount of attorneys’ fees plaintiff attorneys may recover after deduction of net costs. 

Our Approach

Navigating a medical malpractice claim can be complex and overwhelming, especially when dealing with the physical, emotional, and financial consequences of the injuries you’ve endured. Our legal team is committed to supporting you every step of the way.

Why Choose Us?

• Expertise: Our attorneys are knowledgeable in personal injury law and have extensive experience handling medical malpractice cases. We have a thorough understanding of the legal and medical complexities involved and will use our expertise to build a strong case on your behalf.

• Personalized Approach: We believe in providing personalized attention to every client. We understand that each case is unique and requires a tailored approach. Our attorneys will take the time to listen to your concerns, answer your questions, and develop a legal strategy that aligns with your specific needs and goals.

• Proven Track Record: With a successful track record of obtaining favorable outcomes for our clients, you can trust us to handle your case. We have secured significant settlements and verdicts in medical malpractice cases, helping our clients recover compensation for medical expenses, lost wages, pain and suffering, and more.

• Resources and Network: We have access to a wide range of resources and a vast network of experts, including medical professionals and investigators. We will leverage these connections to strengthen your case and ensure that no stone is left unturned.

• No Fee Unless We Win: We understand the financial strain that can come after an  injury, which is why we generally take personal injury cases on a contingency fee basis. This means that you will not have to pay any upfront fees. You only pay us if we successfully obtain compensation for you, ensuring that you can focus on your recovery without worrying about legal expenses.

Choosing the right attorney after suffering an injury that was not your fault is crucial. With Phillips, Erlewine, Given & Carlin LLP, you can have confidence that you are selecting a firm that will champion your rights and work tirelessly to achieve the best possible outcome for your case. Contact us today for a free consultation and let us guide you on the path to justice and recovery.

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