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About Medical Malpractice

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MEDICAL MALPRACTICE

DEFINITION

Medical malpractice is negligence in the area of health care. It arises when a health care professional has a duty of care to a person, and the professionalís level of care has fallen below an acceptable industry standard and thereby caused the person an injury. In order for medical malpractice to exist under the law, four elements must exist: a duty owed by a health care professional to a person in his or her care, a breach of that duty, damage to the individual in the professionalís care, and proof that the breach of duty caused the damage.

Duty

There must have been a duty of care owed to the injured person by the health care professional who is to be charged with the negligence. A doctor-patient relationship is an example where such a duty exists.

Breach of duty

The health care professional with the duty of care must have breached that duty by performing services in a manner below the standard which a person with like training and education, and in like circumstances, would reasonably have performed.

Damage

There must be an injury to the person claiming the malpractice, either a new injury or an aggravation to an existing injury.

Causation

And the breach of the health care professionalís duty must have been the proximate, or attributable, cause of the injury.

If the person suing (the Plaintiff) can convince a jury that all four elements exist, then he or she will have proved the medical malpractice case. If the person being sued (the Defendant) can prove that one or more of those four elements does not exist, then the defendant will win. In addition, the defendant will try to prove that even if all four elements do exist, it was the plaintiff in some way who was at fault, either totally or in part, and that therefore, the defendant should not be held responsible.

This is a very complex area of law and it is important to obtain the services of a qualified medical malpractice attorney at the earliest point possible. Call (800) 475-6068 for more information.

STATUTE OF LIMITATIONS

In California, a medical malpractice action for injury or death must be brought within one year from the date the claimant discovered the negligent act, but no more than three years from the date of the injury. In cases where a foreign object has been left in the body, the statute of limitations does not begin to run until the claimant discovers or should have discovered the injury. This means that if a claim is not brought within these time limits, it will not be allowed to be brought at all, even if it is otherwise valid.

Time is critical in these matters. If you suspect that you have been injured or a loved one has been injured by medical malpractice, it is important to see a qualified attorney as soon as possible. There are exceptions that will allow a claim to be brought even if the deadline has run, but this is a very intricate area of law, and an attorney who specializes in medical malpractice must be consulted at the earliest opportunity in order to protect your rights. Call (800) 475-6068 for more information or to arrange an appointment with a qualified medical malpractice attorney.

Actions brought on behalf of a minor or insane person have their own rules regarding statutes of limitations. Again, time is crucial in these matters, and delay can only work against you. If you suspect you or a loved one have been injured as a result of medical malpractice, it is important that you consult with a qualified attorney as soon as possible.

MEETING WITH AN ATTORNEY

The first step in pursuing a matter in which you suspect medical malpractice might have occurred, is to meet with a qualified attorney. This would be someone who specializes in medical malpractice and who has been practicing for many years with a history of success in large cases.

At the meeting with the attorney several things will occur. For one, all your questions and concerns about attorney fees and costs should be answered

Attorney Fees

In almost all cases, medical malpractice attorneys perform their services on a contingent-fee basis. This means that you will pay no fees unless they win your case, and then the fees will come from the proceeds of the case. The amount of fees an attorney can charge in medical malpractice cases is limited by California law. The attorney should explain this to you in detail.

Costs

Medical malpractice cases are very expensive. If the attorney takes your case, he or she will have to incur considerable costs to take it forward. These costs will be for obtaining copies of medical records, hiring one or more medical experts to review the medical records and give their opinion, hiring one or more medical experts to testify at trial, preparing exhibits for trial, and more. In normal practice, medical malpractice attorneys advance these costs and collect them from the proceeds of the case if they win. But be sure to ask the attorney about the handling of costs, in your meeting.

Case Determination

At the meeting with the attorney, he or she will ask you many questions about your condition and the incident that is the subject of the claim of medical malpractice. The attorney will get a medical history and create a timeline of activities relating to the incident. This will enable the attorney to make an initial assessment as to whether there is a valid claim under the law for medical malpractice.

Attorney-Client Agreement

If the attorney believes there is a valid winnable claim, and if you are satisfied that this is the right attorney for you and that you would like to proceed, then the attorney will have you sign an attorney-client agreement. Be sure to read the agreement and ask any questions you might have. The attorney will also have you sign forms granting permission for him or her to obtain your medical records.

Attorneyís Next Steps

Now the attorney will obtain and read copies of your medical records. This will enable him or her to outline the facts of the case with more clarity and certainty. The attorney will then hire a medical expert to review the medical records and give his or her own professional opinion on the merits of the case. In most medical malpractice cases, if the malpractice (negligence) is to be proven, it will have to be by the testimony of a medical expert.

Assuming that the medical expert concurs that a valid provable case of medical malpractice exists under the law, then your attorney will file a lawsuit. These lawsuits are complicated, expensive, and time-consuming, and can take two years and more to be resolved.

Be sure that in your initial meeting with the attorney you are informed about and understand the time involved in the process. Also be sure that you understand what will be expected of both you and the attorney, and that you have worked out a satisfactory process whereby your questions will be answered throughout the time involved in the case. Please call (800) 475-6068 if you have any questions.

EXAMPLES OF MEDICAL MALPRACTICE

Below is a partial list of conduct that may constitute medical malpractice or other legally actionable act:

  • Failure to diagnose a disease
  • Delay in diagnosing a disease
  • Misdiagnosing a disease
  • Mistreating a disease though properly diagnosed
  • Failure to order needed medical tests
  • Failure to refer a case to a medical specialist when indicated
  • Failure to obtain a patientís informed consent for an operation or procedure
  • Exceeding the limits of the patientís consent in an operation or procedure
  • Improperly performing an operation or procedure
  • Improperly administering anesthesia
  • Failure to explain the risks, side-effects, and alternatives to prescribed medication
  • Prescribing incorrect medication
  • Improperly choosing or applying medical devices or implants
  • Manufacturing and selling unsafe drugs, medical devices or implants
  • Improperly filling a prescription
  • Improperly reading and analyzing an x-ray or other test result
  • Improper care and handling of a patient in a hospital
  • Improper care of an elderly patient
  • Failure by an HMO or PPO to authorize needed treatment or medication
  • Improper switching by an HMO of prescribed medication merely to save money
  • Improper screening, employing, training, or supervising of employees by a hospital
  • Inadequate staffing by a hospital
  • Allowing an unlicensed or incompetent physician to practice in a hospital

A cause for medical malpractice exists when one or more of these acts (or omissions to act) causes an injury, impairment, disfigurement, or perhaps death to a person in the health professionalís care.

If you suspect that one or more of these or any other injurious acts might have happened to you or a loved one by a health care professional, donít delay in seeking information or help. The passage of time can only harm your chances of recovery. For more information or to consult with a qualified medical malpractice attorney, call (800) 475-6068 toll free.

RESPONSIBLE PARTIES

The health care profession has many participants. All of them are required to perform their services reasonably and professionally to the standard of care in that industry. Following is a list of some of the individuals and entities that are responsible for administering proper care, and who may become liable under the law for medical malpractice if they donít:

  • Physicians
  • Physiciansí Assistants
  • Anesthesiologists
  • Dentists
  • Dental Assistants
  • Nurses
  • Nursesí Assistants
  • Nurse Practitioners
  • Pharmacists
  • Pharmaceutical Companies
  • Manufacturers of Medical Devices and Implants
  • Technicians
  • Chiropractors
  • Hospitals
  • Hospital workers
  • Physical Therapists
  • Clinics
  • Nursing Homes
  • Home Health Providers
  • Rehabilitation Facilities
  • Other Health Care Facilities
  • HMOs
  • PPOs

If you suspect that you or a loved one may have been injured by anyone working in these occupations or entities, it is strongly recommended you consult with a qualified medical malpractice attorney promptly. Call (800) 215-1190 for information.

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