Go to Home Page
to Areas of Practice
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).
"Where 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.
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)
Statutes of Limitation are
laws that limit how much time you have to file a lawsuit against a
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
have received numerous contacts or telephone calls from people
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.
GOVERNMENT ENTITY DEFENDANTS:
you wish to bring a claim against a government entity or its
employees, you will be required to file a claim against that entity
(6) months from the date of the incident since governmental entities
restrictive claim statutes of their own.
MALPRACTICE - STATUTE OF LIMITATIONS - ADULT:
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.
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
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
(CHILDREN UNDER AGE 18): Lawsuits by or on behalf of
(children under Age 18) must be filed within three
years from the date of the negligent act.
if the child is under the six years old, the
be commenced either within three years or before the
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.
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
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)
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
of limitations time deadline may be extended by 90 days.
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
tolls (delays) to those person's named in the CCP
pre-lawsuit notice. Hanooka v.
Pinko (1994) 22 Cal.App. 4th 1553; Derderian v. Dietrick (1997) 56
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
shortest possible period applicable and without regard to the
Section 364 statute of limitations extension provision.
Arbitration agreements, depending on the terms of the agreement and the
laws in effect, may
modify the statute of limitations in medical malpractice cases.
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
a injury claimant is incompetent (due to for example, physical or
illness), a guardian may be appointed and is permitted to bring a
claim within the required time limit. Code of Civil Procedure
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
Go to Home Page
to Areas of Practice