What Is Medical Malpractice?
In short, medical malpractice occurs when a medical professional, such as a doctor, makes a mistake in your treatment or doesn’t take a proper course of action when they should have known better. Examples of medical malpractice include:
- Missed or untimely (late) diagnosis
- Misinterpreting test, lab, or imaging results
- Errors during surgery
- Discharging a patient from the hospital too early
- Recommending wrong course of treatment
- Prescribing wrong medication
- Administering wrong medication or treatment
- Improper sterilization of instruments
- Errors during childbirth (birth injuries)
These examples are not exhaustive, there are many other ways in which malpractice can be committed. However, not all bad experiences with or mistakes by medical professionals amount to medical malpractice.
To be entitled to compensation due to medical malpractice, you must show that (1) the doctor or other healthcare professional provided you with substandard care and (2) that substandard care caused you some injury (damage).
Do I have a medical malpractice case?
The first hurdle of showing that the doctor or other healthcare professional provided you with substandard care is usually difficult. A healthcare provider is said to have provided substandard care (acted with negligence) if their recommendations, treatment, or diagnoses were different than those of a reasonably careful, skilled, and knowledgeable practitioner acting under the same or similar set of circumstances. Accordingly, to prove that your doctor or healthcare provider provided you with substandard care, you must show what that standard is – i.e., the level of care, skill, and knowledge that other reasonable doctors or healthcare professionals would use in the same or similar circumstances. Making medical malpractice cases harder, is that this showing requires the testimony of expert witnesses (typically the same kind of healthcare professional being accused of malpractice) who are notoriously reluctant to testify against their fellow doctors or health care providers.
Even if you can show that the healthcare professional acted below standards, you are not out of the woods just yet. To be entitled to compensation, you must also show that their wrongful actions caused your harm or injuries. This can also be difficult as many physicians, or their malpractice insurance companies will often argue that even if they acted below standard, their actions (or inactions) did not cause your harm. Some common arguments are that you would have become sick anyhow, you were not injured at all, you weren’t injured or harmed to the extent you are claiming, or it wasn’t their mistake that caused your injury to begin with, but rather something else.
How long do I have to file my medical malpractice case?
With medical malpractice cases there are also strict time limits and rules to make claims and strict protocols to follow before you can even file a lawsuit against a healthcare provider. If these time limits and rules are not followed, you may be forever barred from receiving any compensation. Specifically, in California, you have one year to file a lawsuit after you discover you were harmed by a medical provider or should have reasonably discovered the harm.
However, you only have an overall time limit of three years to discover the harm and file a lawsuit. If you don’t find out about the harm until after the three years have passed, and none of the limited exceptions apply to you, your claim is forever barred. Some of the exceptions to the three-year discovery rule include when patients are less than six years old, when foreign objects are left inside a patient’s body (such as a sponge or surgical tool), or when the medical professional intentionally hid a mistake. To learn more about these time limits (referred to as statute of limitations), see California Code of Civil Procedure section 340.5.
As if all of the above wasn’t enough, before you can file a lawsuit against a medical professional for malpractice, you must give that medical professional 90 days’ notice of your intention to sue them, and that notice must (1) contain the legal basis for the claim, the type of harm or loss specifying the nature of the harm, and (2) must be sent (served) on the medical professional in a specified manner. For more information, see California Code of Civil Procedure section 364.
Should I hire a personal injury attorney for my medical malpractice case?
As you can see, medical malpractice cases are very complicated and difficult to win. This is why if you think you have been harmed due to a medical professional’s mistake, it is highly recommended you consult with an experienced medical malpractice lawyer.