Basic Requirements for a Claim. To prove that medical malpractice occurred, you must be able to show all of these things:
A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor you are suing -- this means you hired the doctor and the doctor agreed to be hired. For example, you can't sue a doctor you overheard giving advice at a cocktail party. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently arise where a consulting physician did not treat you directly.
The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice. The doctor must have been negligent in connection with your diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have. The doctor's care is not required to be the best possible, but simply "reasonably skillful and careful." Whether the doctor was reasonably skillful and careful is often at the heart of a medical malpractice claim. Almost all states require that the patient present a medical expert to discuss the appropriate medical standard of care and show how the defendant deviated from that standard.
The doctor's negligence caused the injury. Because many malpractice cases involve patients that were already sick or injured, there is often a question of whether what the doctor did, negligent or not, actually caused the harm. For example, if a patient dies after treatment for lung cancer, and the doctor did do something negligent, it could be hard to prove that the doctor's negligence caused the death rather than the cancer. The patient must show that it is "more likely than not" that the doctor's incompetence directly caused the injury. Usually, the patient must have a medical expert testify that the doctor's negligence caused the injury.
The injury led to specific damages. Even if it is clear that the doctor performed below the expected standards in his or her field, the patient can't sue for malpractice if the patient didn't suffer any harm. Here are examples of the types of harm patients can sue for:
physical pain - mental anguish - additional medical bills, and - lost work and lost earning capacity.
A wide variety of situations can lead to a medical malpractice claim -- from a doctor leaving a sponge in a patient's stomach during an operation to failing to tell a patient that a prescribed drug might cause heart failure. Most medical malpractice claims fall into one of these categories:
Failure to diagnose. If a competent doctor would have discovered the patient's illness or made a different diagnosis, which in turn would have led to a better outcome than the one actually achieved, then the patient may have a viable medical malpractice claim.
Improper treatment. If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. In a similar vein, it may also be malpractice if the doctor selects the appropriate treatment but administers it incompetently.
Failure to warn a patient of known risks. Doctors have a duty to warn patients of known risks of a procedure or course of treatment -- this is known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure (in a way that the doctor should have warned could happen).
Types of Claims
Incident Reporting - How each insurance company defines a “claim” is another important consideration when comparing medical malpractice insurance policies.
“Incident reporting” allows the physician to report an adverse outcome to the carrier as a potential claim. This is important because for a claim to be covered under a claims-made policy, the incident must BOTH happen AND be reported as a claim while the policy is in force.
If an insurance company requires that the insured receive a “written demand for damages” in order to consider a claim to be reported – then the physician must wait to be sued before the claim is recognized! This can be a real problem for physicians wishing to change professional liability carriers: Most insurance companies would decline to offer a policy to prospective clients who can expect to be sued in the future for past adverse outcomes. The carriers often consider such a situation to be the same as “buying future claims.”
Causation - Causation means that the incorrect actions of the health care provider probably led to or contributed to the injuries and damages suffered. For example, if an emergency room doctor did not quickly examine a patient, it could be a life-or-death situation. However, if the patient would have died, regardless of anything a doctor might have done, then there would be no “causation,” even if the doctor delayed his examination. Another example of “no causation” would be a person who receives an incorrect prescription from the pharmacist and realizes the mistake before she takes the medicine. However, if the medicine were actually taken, and harm resulted, there is “causation.”
To prove a medical malpractice case, it must be probable that the incorrect treatment caused the harm. In this context, “probability” means that it is “more likely than not” that the treatment caused the harm. The plaintiff must prove that there was more than a 50% likelihood that the harm was caused by the negligence. For example, in a case involving the negligent failure to diagnose cancer, if there was less than a 50% chance that earlier diagnosis would have affected the outcome, there is only a “possibility” and not a probability. The law does not permit recovery of damages based on a “possibility.”
Damages - Damages are divided into two categories: economic and non-economic. Economic damages include out-of-pocket losses that have ascertainable monetary value, such as lost earnings and medical bills. If the loss can be replaced with money, it is “economic.” Noneconomic damages are typically known as “pain and suffering” damages. It is compensation for physical impairment or disability, or the diminished enjoyment of life caused by the malpractice. If the malpractice resulted in a patient’s death, the damages include compensation for the lost financial support that the spouse and family would have received, and compensation for the loss of the decedents care, comfort and love.
Statute of Limitations Medical Malpractice California
California’s statute of limitations for medical malpractice lawsuits can be found at California Code of Civil Procedure section 340.5, which states that this kind of case must be brought within one year after the plaintiff’s discovery process, or through the use of reasonable diligence should have discovered the injury,” or within three years of the date of the injury, whichever comes first.
One exception to this overall three-year deadline is cases where a foreign object. such as a medical instrument. was left in the patient’s body. In those kinds of cases, the claimant’s year discovery deadline still applies but there is no overall time limit. A previous patient could bring this kind of case ten years or more after the surgical error occurred, as long as you file it within a year after you find out about the presence of the foreign object.
It's important to take note of one more procedural steps that malpractice plaintiffs must jump through California Code of Civil Procedure section 364 entitles the defendant provider to at least 90 days notification of a patient's intent to file a malpractice lawsuit in the State of California.