1. What is medical malpractice?

Medical malpractice occurs when a doctor or other healthcare provider breaches his or her duty to a patient to perform treatment with the skill required of members of the healthcare provider's profession. Medical malpractice cases are frequently referred to as medical negligence cases.

2. Who can I sue for medical malpractice?

You can bring a lawsuit against any healthcare provider who was in any way involved in your care and treatment and whose negligence caused your injury or the death of a loved one. This would include doctors, nurses, hospitals, physical therapists, psychotherapists and people who you never even met such as radiologists who reviewed your x-rays.

3. How do I know if I have a valid medical malpractice case?

One of the factors that sets medical malpractice cases apart from most other personal injury cases is that frequently you will not have any idea as to whether or not you have been the victim of malpractice. What you will know is that you or a family member has received a bad result or outcome as a result of a surgery or other medical treatment or therapy. Sometimes you will have been told by another doctor, family member or friend that there probably was malpractice. However, the question can never really be answered without consulting an attorney, and the attorney consulting with one or more expert witnesses.

4. What is meant by "a breach of the standard of care" in a medical malpractice case?

In order to win a medical malpractice case, a patient must prove that one or more healthcare providers breached the "standard of care." The standard of care in California requires that a healthcare provider exercise adequately the skill, knowledge and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances.

A specialist is someone who holds himself or herself out to be a specialist and must act within the standard of care governing medical specialists.

Further, in certain circumstances, in order to comply with the standard of care, a patient must be referred to a specialist. A failure to make such a referral may be considered malpractice.

5. If I can prove that the defendant violated the standard of care, does that mean I win my case?

No. You must also prove that the violation of the standard of care "caused" your injury. This can be very difficult to prove in medical malpractice cases because the medical issues can be very complicated.

The defense will normally make one of the following claims: that the injury for which the plaintiff is suing is merely a natural progression of the condition for which the patient sought treatment; that the condition for which the plaintiff sought treatment was incurable; that earlier diagnosis or treatment would not have altered the plaintiff's outcome, or that the injury from which the plaintiff now suffers developed independently of whatever the defendant did wrong.

In order to prevail in a medical malpractice case, the plaintiff must prove that the acts of malpractice were a substantial factor in causing plaintiff's injury.

6. Can I sue a doctor for malpractice even though my case did not involve a surgery?

Yes. Some of the most common medical malpractice cases involve a failure to diagnose cancer and other serious illnesses. Further, a malpractice claim can be based on a doctor's failure to take an adequate history, monitor a patient's progress, failure to prescribe appropriate medicine, and many different acts which can occur in the course of a patient's treatment.

7. What are some of the common allegations in malpractice cases involving surgery?

Sometimes in elective surgery cases there is an issue as to whether the surgery should have been performed at all.

At other times when a surgery is non-elective, the claim may be based on an undue delay in performing a surgery. Further, the surgery itself may have been improperly performed, and it is not at all uncommon to see cases involving inadequate post-operative follow up and care even after a hospitalization.

8. If my baby is born with birth defects, can I bring a malpractice case against the doctors and hospital?

Yes, as long as you can establish malpractice. These cases, known as "obstetrical malpractice" cases, can be the most challenging and expensive cases to pursue.

Frequently, babies born with birth defects will require a lifetime of care that can cost into the tens of millions of dollars. Thus, doctors and hospitals spend a great deal of time and money attempting to defeat these claims. That is why it is important to retain an attorney experienced in medical malpractice cases and has the resources to spend the hundreds of thousands of dollars it sometimes takes to win an obstetrical malpractice case.

The defendants will always claim that the birth defects were unpreventable, caused either by genetic factors, the mother's misconduct during the pregnancy or hidden problems which were undiscoverable despite the doctor's best efforts.

To win, plaintiff will usually have to hire an entire team of experts to establish that the birth defects were preventable and discoverable and that the baby could have been born healthy if the doctors had acted properly during the pregnancy, delivery or post-delivery.

9. How long do I have to bring a medical malpractice case?

The statute of limitations in medical malpractice cases is different than the statute of limitations in most cases. First of all, one must always remember that if the case involves a government entity, a claim must be brought within six months of the date of injury.

In all other cases, the complaint must be filed within three years from the date of injury or one year from the date a reasonable person should have discovered the malpractice and injury, whichever is sooner.

The law regarding the statute of limitations in medical malpractice cases is extremely complex and confusing. Therefore, a patient should always consult with an attorney as soon as possible when they suspect malpractice.

To be safe, an intent to sue letter or complaint should be filed within one year from the date of malpractice; however, the time period can be extended beyond the one year limitation or even the three year limitation under certain circumstances.

10. What damages can I recover in a medical malpractice case?

There are strict limitations on damages that are recoverable in any case against a licensed healthcare provider. The most serious limitation is a $250,000 limit on damages for pain, suffering and emotional distress.

Further, if it is determined that you will need treatment in the future or will have a wage loss in the future as a result of the malpractice, the doctor's insurance company will only have to pay you the damages in the year in which you will incur the expense or loss. In other words, they will not have to pay you for all of your damages immediately after a trial if you win.

In addition, unlike most personal injury cases, if an insurance carrier or other entity has paid or will pay all or part of your medical bills, the defense is allowed to enter the fact of payment into evidence at trial.

1. Do I need to retain an attorney?

Absolutely. Medical malpractice insurance carriers almost never settle cases before lawsuits, especially if plaintiff is unrepresented, and if they do, they will only offer a fraction of the value of a claim.

1. Will my medical malpractice case settle out of court?

Probably. Most medical malpractice cases settle at some time before trial; however, they generally will take some time to settle and are more likely to be tried than other cases because doctors usually win and frequently refuse to consent to a settlement even if their insurance company wants to offer money.

1. Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this web site, research other legal articles and texts on the subject matter or consult with an attorney.