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MEDICAL MALPRACTICE LAW - CALIFORNIA

MEDICAL NEGLIGENCE:
"[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, 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

“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 .


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.



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.


``[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:


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). 
 



"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.


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
 
“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:  

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.

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.   

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

See Medical Malpractice Statute of Limitations

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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