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MALPRACTICE LAW -
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.
anesthesiologists and ophthalmologists, are “held
to that standard of learning and skill normally possessed by
specialists in the same or similar locality under the same or similar
circumstances.” Quintal v.
Hospital (1964) 62 Cal.2d 154, 159–160.
v. Magana, Olney, Levy, Cathcart & Gelfand
Cal.3d 176, 188
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
Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215 .
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.
dentist is required to have and to use the degree of learning and skill
is ordinarily possessed by dentists of good professional reputation in
v. England (1933) 133 Cal.App. 676, 679; Roberts
v. Parker (1932) 121 Cal.App.
264, 26 (1930) 210 Cal. 206, 213-214.
imposed by law on the hospital is that it must exercise such reasonable
toward a patient as his mental and physical condition, if known,
require. ...’’ Vistica
v. Presbyterian Hospital & Medical Center, Inc.
Cal.2d 465, 469 .
- NEGLIGENCE - LACK OF
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)
53, 57-58. Exceptional
include emergencies and unexpected circumstances in which immediate
required and the securing of consent is impracticable.
v. Hubbell (1948), 87 Cal.App.2d 53, 57; see Business
and Profession Code, Section 1627.7 (exemption from
liability for failure to inform).
a doctor obtains consent of the
to perform one type of treatment and subsequently performs a
different treatment for which consent was not obtained, there is a
of battery.’’ Cobbs v.
(1972) 8 Cal.3d 229, 239 .
cases are not subject to the MICRA damages limitations discussed below.
patient may state a cause of action for fraud
against a physician,
other healthcare provider by alleging facts that show
knowledge of falsity, intent to induce reliance, justifiable reliance,
resulting damage. Willard v.
Hagermeister (1981) 121
are not subject to the MICRA damages limitations discussed below.
See also Premises
Liability at Medical Facilities
EXCEPTION TO RULE
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
(1993) 19 Cal.App.4th 1, 6.
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.
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
the $250,000 recovery cap on
noneconomic damages became law. This cap has never been
inflation. Had the cap been adjusted for inflation, as of
cap should have been $882,000.00. But the cap remains at
cap applies whether the case is for injury or death.
cap does not apply to non-MICRA causes of action such as battery or
is no limit
(no cap) on the amount recoverable for economic damages (medical costs,
loss of earnings, and other economic losses).
also imposes Plaintiff's attorney's contingency fee caps
in medical malpractice cases. (But no fee limits are
on the defense attorneys). A Plaintiff's attorney
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
amount that exceeds $600,000 (California
Business and Professions Code § 6146). See Attorney
Fee Agreements which quotes Section 6146.
normally financially benefit a client if an attorney takes their case.
However, this law also has the effect of preventing lawyers
taking lower dollar value cases because of the limitation of fees
OF LIMITATION (TIME
DEADLINES TO FILE A MALPRACTICE ACTION)
Malpractice Statute of Limitations
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.
information provided is from general sources, and I cannot
warrant that the information contained in this website is accurate,
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
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