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MEDICAL MALPRACTICE LAW - CALIFORNIA


MEDICAL NEGLIGENCE:

PHYSICIANS:

"[A] physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.” Landeros v. Flood (1976) 17 Cal.3d 399, 408; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.

SPECIALISTS:

Specialists, such as anesthesiologists and ophthalmologists, are “held to that standard of learning and skill normally possessed by such specialists in the same or similar locality under the same or similar circumstances.” Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159–160.  See also Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188

NURSES:

“The adequacy of a nurse’s performance is tested with reference to the performance of the other nurses..." Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 341.  See also  Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215 .

PSYCHOTHERAPISTS:

A "psychotherapist or other mental health care provider has a duty to use a reasonable degree of skill, knowledge and care in treating a patient, commensurate with that possessed and exercised by others practicing within that specialty in the professional community."  Kockelman v. Segal (1998) 61 Cal.App.4th 491, 505.

DENTISTS:

A dentist is required to have and to use the degree of learning and skill which is ordinarily possessed by dentists of good professional reputation in the community.  Walter v. England (1933) 133 Cal.App. 676, 679; Roberts v. Parker (1932) 121 Cal.App. 264, 26 (1930) 210 Cal. 206, 213-214.

HOSPITALS:

``[T]he duty imposed by law on the hospital is that it must exercise such reasonable care toward a patient as his mental and physical condition, if known, require. ...’’ Vistica v. Presbyterian Hospital & Medical Center, Inc. (1967) 67 Cal.2d 465, 469 .

OTHER TYPES OF LIABILITY:

NEGLIGENCE - LACK OF INFORMED CONSENT:

In the absence of exceptional circumstances, a physician or dentist must obtain the informed consent of his or her patient before undertaking treatment.  Willard v. Hagermeister (1981) 121 Cal.App.3d 406, 418; Preston v. Hubbell (1948) 87 Cal.App.2d 53, 57-58.  Exceptional circumstances may include emergencies and unexpected circumstances in which immediate action is required and the securing of consent is impracticable.  Preston v. Hubbell (1948), 87 Cal.App.2d 53, 57; see Business and Profession Code, Section 1627.7 (exemption from liability for failure to inform).   

BATTERY:

"Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.’’ Cobbs v. Grant (1972) 8 Cal.3d 229, 239 .  

Battery cases are not subject to the MICRA damages limitations discussed below.

MISREPRESENTATION

A patient may state a cause of action for fraud against a physician, dentist, or other healthcare provider by alleging facts that show misrepresentation, knowledge of falsity, intent to induce reliance, justifiable reliance, and resulting damage.  Willard v. Hagermeister (1981) 121 Cal.App.3d 406.  

Misrepresentation cases are not subject to the MICRA damages limitations discussed below.

See also Premises Liability at Medical Facilities

EXPERT TESTIMONY

NORMALLY REQUIRED; EXCEPTION TO RULE

“The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen.” Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.  See also Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6.  

An example where expert testimony is not required to prove negligence is "the failure to remove a sponge from the abdomen of a patient" because the "layman needs no scientific enlightenment to see at once that the omission can be accounted for on no other theory than that someone has committed actionable negligence.” Ales v. Ryan (1936) 8 Cal.2d 82, 93.

DAMAGES:  

NON-ECONOMIC DAMAGES:

In medical malpractice cases, California imposes a $250,000 "cap" on non-economic damages per case (that is, pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary injury.  California Civil Code 3333.2.

In 1975, the $250,000 recovery cap on noneconomic damages became law.  This cap has never been adjusted for inflation.  Had the cap been adjusted for inflation, as of 2004, the cap should have been $882,000.00.  But the cap remains at $250,000.

The cap applies whether the case is for injury or death.  

This cap does not apply to non-MICRA causes of action such as battery or misrepresentation.

ECONOMIC DAMAGES:

There is no limit (no cap) on the amount recoverable for economic damages (medical costs, loss of earnings, and other economic losses).

ATTORNEY'S FEES CAPS:

California also imposes Plaintiff's attorney's contingency fee caps in medical malpractice cases.  (But no fee limits are imposed on the defense attorneys).  A Plaintiff's attorney (injured victim's attorney) can only collect 40 % of the first $50,000, 33 1/3 % of the next $ 50,000, 25 % of the next $ 500,000, and 15 % of any amount that exceeds $600,000 (California Business and Professions Code 6146).  See Attorney Fee Agreements which quotes Section 6146.

This law will normally financially benefit a client if an attorney takes their case.  However, this law also has the effect of preventing lawyers from taking lower dollar value cases because of the limitation of fees recoverable.  

STATUTES OF LIMITATION (TIME DEADLINES TO FILE A MALPRACTICE ACTION)

Statutes of Limitation are laws that limit how much time you have to file a lawsuit against a defendant.   

CAVEAT:

Statute of Limitation laws and application of laws can be complex and riddled with exceptions and time extenders and time shorteners.  Therefore, on the one hand, you should always seek legal consultation before arriving at any final conclusions. On the other hand, you should never slumber on your rights and procrastinate or delay seeking legal counsel or taking action because, in many cases, the statutory time limit can be less than your preliminary research may indicate.

I have received numerous contacts or telephone calls from people who delayed too long to initiate an action and were,  therefore, forever barred from asserting an action against a potential negligent medical professional. Therefore, I urge you not to, at a minimum, seek counsel to ascertain what your time limits are.  

BEWARE OF GOVERNMENT ENTITY DEFENDANTS: 

If you wish to bring a claim against a government entity or its employees, you will be required to file a claim against that entity within six (6) months from the date of the incident since governmental entities have restrictive claim statutes of their own.

MEDICAL MALPRACTICE - STATUTE OF LIMITATIONS - ADULT: Under California law, medical malpractice actions involving injury or death (a lawsuit filed with the Court) must be commenced within one (1) year from the date that the injured person knew, or through the exercise of reasonable diligence should have known, of the injury and of its negligent cause, or, three (3) years from the date of the actual injury, whichever occurs first.   The three-year limitation period above may be tolled (extended or lengthened) if there is fraud or intentional concealment by a defendant, or when a foreign object with no therapeutic purpose (examples, sponge, surgical knife, etc.) is left in the human body.  See Code of Civil Procedure Section 340.5.   See also Ashworth v. Memorial Hosp. of Long Beach (1988) 206 Cal. App. 3d 1046.

Section 340.5 applies in a wrongful death action as well as a personal injury action. (Ferguson v. Dragul (1986) 187 Cal.App.3d 702, 708; see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 405, fn. 5.) The statute does not commence to run until the decedent’s death. Larcher v. Wanless (1976) 18 Cal.3d 646, 659; Ferguson, supra, 187 Cal.App.3d at pp. 708-709;
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MINORS (CHILDREN UNDER AGE 18):  Lawsuits by or on behalf of minors (children under Age 18)  must be filed  within three years from the date of the negligent act.

But if the child is under the six years old, the action must be commenced either within three years or before the child's eighth birthday, whichever provides the longer time period. Strangely, in some cases, this law creates a potentially shorter statute of limitations for children than for adults.   Therefore, the Courts have begun to carve out means to extend the time a child may bring a malpractice action on the theory or rationale that not to do so would be to deny minors "equal protection" of the law. Photias v. Doerfler (1996) 45 Cal. App. 4th 1014, Katz v. Children's Hospital of Orange County, 28 F.3d 1520 (9th Cir. 1994)

C.C.P SECTION 364 NOTICE CAN, IN CERTAIN CASES EXTEND THE STATUTE: California law provides, in many cases, that by serving a written notice on a health care provider, within the 90 days before the applicable statute of limitations period expires, the statute of limitations time deadline may be extended by 90 days.  Russell v. Stanford University Hosptial (1997) 15 Cal.4th 783.  Caveat/Warning: This extension only applies to MICRA causes of action for professional malpractice, not to non-MICRA counts such as battery.  And it only tolls (delays) to those person's named in the CCP 364 pre-lawsuit notice.  Hanooka v. Pinko  (1994) 22 Cal.App. 4th 1553; Derderian v. Dietrick (1997) 56 Cal.App.4th 892.

However, so much uncertainty concerning in calculating statute of limitations in medical malpractice cases, it is urged that you take the necessary steps to file a lawsuit within the shortest possible period applicable and without regard to the CCP Section 364 statute of limitations extension provision.

Note: Arbitration agreements, depending on the terms of the agreement and the laws in effect, may modify the statute of limitations in medical malpractice cases.

PREMISES LIABILITY AT MEDICAL FACILITIES: If ordinary negligence applies and not medical negligence, then the statute of limitations is typically two years after the date of the incident.  See Premises Liability at Medical Facilities

If a injury claimant is incompetent (due to for example, physical or mental illness), a guardian may be appointed and is permitted to bring a claim within the required time limit. Code of Civil Procedure Section 372.

Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change. No legal advice is given and no attorney/client or other relationship is established or intended.  The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is recommend that readers of this information consult with their own counsel prior to relying on any information on this website.

2007

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