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 have successfully represented clients injured by medical practice for more than 40 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 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

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

Cheong & Denove have successfully represented clients for injuries sustained from the following types of medical malpractice:

• Birth injuries
• Delay in diagnosis
• Delay in treatment
• Adverse drug reactions
• Failure to hospitalize
• Failure to order appropriate diagnostic tests
• Failure to refer to a specialist
• Inadequate medical monitoring
• Medication errors
• Misdiagnosis
• Infections
• Performing operation/procedure without patient’s informed consent
• Surgical errors
• Burns from medical equipment
• Falls from hospital beds
• Anesthesia Errors
• Use of defective equipment
• Failure to transfer

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 §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.

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 Arbitration

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.

Demonstrative Evidence

The attorney representing the doctor or hospital will do his best to make the case as confusing as possible. It is the patient’s attorney’s obligation to simplify what is often a complicated scenario. Timelines and medical illustrations can help make the most complicated malpractice case understandable.

Cheong & Denove have the extensive resources to handle the most complex legal matters, yet is small enough to offer individualized service to our clients. We have been on your side for over 40 years.

We believe the more you know, the better choice you will make.

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