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.
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
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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
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
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.
At Cheong,
Denove, Rowell & Bennett we believe the more you know,
the better choice you will make.
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