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Medical
Malpractice
Overview
Medical Malpractice is simply medical
negligence committed by a physician, nurse, hospital, or other
health care provider. As in all negligence actions one must prove
negligence, causation and damages. To learn more about negligence go
to
Negligence Law.
The Los Angeles Law Firm, Cheong,
Denove, Rowell & Bennett have successfully represented clients
injured by medical practice for 30 years
In a medical malpractice action the
jury is instructed that "a healthcare provider is negligent if he or
she fails to use the level of skill, knowledge, and care in
diagnosis and treatment that other reasonably careful health care
providers would use in the same or similar circumstances. This level
of skill, knowledge, and care is sometimes referred to as the
standard of care." CACI 501
 (CACI
are the approved jury instructions from the Judicial Council of
California. Jury instructions are read to the jury by the judge and
establish the law the jury must follow in deciding the case. A
partner of Cheong, Denove, Rowell & Bennett has been formally
recognized as one of the attorneys who assisted the task force in
the preparation of these jury instructions.)
If a healthcare provider is a
specialist in a certain field, he is negligent if he or she fails to
use the level of skill, knowledge, and care that other reasonably
careful specialists would use in similar circumstances. CACI 502
A health care provider can also be liable if he or she fails to
refer the patient to a specialist if a reasonable careful healthcare
provider in the same situation would have. CACI 508
A surgeon is held responsible for the
negligence of other medical practitioners or nurses who are
assisting him or her during an operation if the surgeon has direct
control over how they perform their duties. CACI 510
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A physician is
negligent if he or she performs treatment or a medical
procedure without the patient's informed consent. The law
requires the healthcare provider to fully explain the
proposed treatment or procedure. This explanation must
include the likelihood of success and the risk of agreeing
to such treatment or procedure in language that
the patient can understand. The patient must be told about
any risk of death or serious injury or significant potential
complications that may occur if the procedure is performed.
If the physician fails to do
so, he can be held liable if the patient was harmed by a
result or risk that the physician should have explained
before the treatment or procedure was performed. CACI 532,
533 |
A healthcare practitioner must also
explain the risks of refusing a procedure in language that the
patient can understand and give the patient as much information as
he or she needs to make an informed decision, including any risk
that a reasonable person would consider important in deciding not to
have the procedure. CACI 534
It is the duty of a hospital to use
reasonable care towards its patients. A hospital must provide
procedures, policies, facilities, supplies, and qualified personnel
reasonably necessary for the treatment of patients. A failure to do
so is negligence. CACI 514
A hospital is also
negligent if it does not use reasonable care to
select and periodically evaluate its medical
staff so that its patients are provided adequate
medical care.
CACI 516.
| Standard of Care
The standard of care isn't found
in a statute, book or treatise. The standard of care is
established by the testimony of expert witnesses who testify
in the case. Typically the experts for the patient who has
brought the lawsuit and the healthcare provider who has been
sued, will often disagree as to what the standard of care is
based upon the testimony of the competing expert witnesses.
In determining which expert to believe the jury is
instructed to weigh each opinion against the others, to
examine the reasons given for each opinion and the facts or
other matters that each witness relied on, and to compare
the experts? qualifications. CACI 221 |
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Common Medical and Hospitals Errors
Birth injuries
Delay in diagnosis
Delay in treatment
Drug reactions
Failure to hospitalize
Failure to order appropriate diagnostic tests
Failure to refer to a specialist
Inadequate medical monitoring
Misdiagnosis
Infections
Performing operation/procedure without patient's informed
consent
Surgical errors
How Long Do I Have to File a Lawsuit?
The law requires that actions be
filed within a certain period of time. (Go
to
Statute of Limitations: When Must I File My Claim or Lawsuit?)
If the filing of an action or claim is not timely, the injured
person is left without an opportunity to go to court. Medical
malpractice victims are no exception to this cruel rule.
Misdiagnosis of a severe medical
condition can sometimes rapidly lead to death. The timeliness of
contacting an experienced medical malpractice attorney who can
protect your rights and move your case forward as quickly as
possible is essential.
The statute of limitations in a
medical malpractice action is, generally speaking, one year from the
date one knew of, or should have suspected, the alleged malpractice,
not to exceed three years. If the lawsuit is not filed within that
time, one will forever be barred from asserting a claim. This may be
extended an additional 90 days by mailing a Notice of Intention to
Commence Litigation to the doctors and/or hospital within 90 days
prior to the expiration of the statute pursuant to Code of Civil
Procedure Section 340.5 and 364. The law provides that
the statute shall be extended 90 days from the date of notice.
In a medical malpractice claim
against a governmental entity, other than the Unites States of
America or one of its agencies or employees, the "government tort
claim" must be filed with the governmental entity within six months
after the accrual of the cause of action (which, like the statute of
limitations, generally means six months from the date you knew or
should have suspected the alleged malpractice occurred), or you will
forever be barred from asserting a claim against the governmental
entity. If the claim is not presented within six months, a written
application may be made to the governmental entity for leave to
present such claim. However, the application must be presented
within a reasonable time not to exceed one year after the accrual of
the cause of action and must state the reason for the delay in
presenting the claim, see Government Code Sections 911.2 and
911.4.
There are different statutes of
limitation for children and there are tolling provisions and
exceptions that may apply to any given case. The important fact to
remember is that as soon as one suspects malpractice, an attorney
should be immediately consulted and retained to protect one's
rights.
Which Healthcare Provider is Responsible?
It is often difficult at the
beginning of a case to determine who, among many healthcare
providers, is at fault. Sometimes no one acted negligently.
Other times it may be only one healthcare provider who is
responsible. Sometimes there are numerous providers who are
negligent. It is important to determine who is responsible.
Medical Malpractice
Arbitrations
Some healthcare providers require
their patients sign an arbitration agreement whereby the patient
agrees in advance to waive the right to both a jury trial and a
judge trial if a claim for malpractice arises. Most of
these binding arbitration agreements are enforceable. HMO's such
as Kaiser require arbitration to be a member of their plan. The
injured patient still has the right to pursue a claim through
arbitration. Instead of a judge or jury deciding who
is at fault and the amount of damages to be awarded, one or more
arbitrators will hear the evidence and decide the
case. The number of arbitrators is determined by the arbitration
agreement the patient signs. The attorneys for the patient and
the healthcare provider will select one or more arbitrators. The
arbitrators are normally attorneys or retired judges.
Some attorneys do not prepare for
arbitration as much as they would for a jury trial. This
is a mistake. The patient, as in a trial, has the burden
of proving
negligence,
causation and damages by a preponderance of the evidence.
If
demonstrative
evidence is needed to prove the case to a
judge or a jury, it is probably needed to prove the case at
arbitration. The right to
appeal an
arbitrator's decision is much more restrictive than an appeal
from a judgment at trial.
Typical Defenses Raised By Healthcare
Defendants
Patient failed to file the lawsuit on time
Someone
other than the defendant is responsible
Defendant
didn't commit malpractice, but even if he had, the malpractice was
not the cause of injury. Also known as the "so what defense."
There
was more than one way to diagnose or treat that problem. Therefore
the defendant isn't negligent for selecting an approved method of
diagnosis or treatment
Patient
failed to comply with medical advice
There
was no need to give informed consent because the risk was minor and
not likely to occur
Patient
would have consented to the treatment even if he or she had been
informed of the risks
Medical
or surgical error was reasonable under the circumstances
Although a defense may appear on its
face to be frivolous, it must be taken seriously in order to defeat
it.
A medical malpractice case is one of
the most difficult cases for a plaintiff's attorney. The attorneys
at Cheong, Denove, Rowell & Bennett have authored papers and
lectured extensively on the subject of medical malpractice.
Cheong, Denove, Rowell & Bennett
has the extensive resources to handle the most
complex legal matters, yet is small enough to offer individualized
service to our clients.
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At Cheong, Denove, Rowell & Bennett we believe the more you
know,
the better choice you will make. |
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The information you
obtain at this site is not, nor is it intended to be, legal advice.
This web site is designed for general information only. The
information presented at this site should not be construed to be
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relationship.
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