Medical Malpractice

California Medical Malpractice

What is a Medical Malpractice Case?

A case is considered a Medical Malpractice case when it is a case against any type of healthcare provider, not just limited to doctors.

In a medical malpractice case, you must be able to prove that the healthcare provider was: 1) negligent in their act or failure to act; 2) the action or failure to act is the proximate cause of a personal injury and/or death; and 3) not within any restriction imposed by the licensing agency or licensed hospital.

Expert testimony is used to prove medical malpractice occurred. This means a relevant qualified  healthcare expert will need to testify that the standard of care in the medical field was breached.

The burden of proof standard in California for MedicalMalpractice cases is the same as the ordinary civil standard, which is clear and convincing evidence. This means that the injured party must show a high probability that negligence occurred.

Statute of Limitations

The Statute of Limitations, otherwise know as the deadline to file a lawsuit, for Medical Malpractice cases in California is one year from the date the incident occurred or one year from when the injured party discovers, or should have discovered the injury. This is a much shorter timeframe than the ordinary two-year California Personal Injury Statute ofLimitations.

Financial Limitations of the Laws Governing CaliforniaMedical Malpractice

Unlike ordinary personal injury cases, actions pertaining to injuries that arise from healthcare provider service are governed by a statute known as the Medical Injury Compensation Reform Act (MICRA) of 1975 which was signed into law by Governor Jerry Brown with an intention to lower medical malpractice premiums for healthcare providers by limiting the amount an injured party can receive in a settlement.

There is a $250,000 cap on non-economic damages (such as pain and suffering, disfigurement, scarring, physical impairment, loss of the use of an organ or limb, loss of life enjoyment, loss of consortium)

There is no cap for compensatory damages (such as medical bills, loss of wages, medical equipment, transportation, increased living expense, domestic services, nursing home care, etc.)

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Punitive damages are permissible and do not have a cap, however you must prove by clear and convincing evidence that the healthcare provider committed oppression, malice or fraud (e.g. reckless negligence or gross negligence)

Attorney’s Fees

Just like other personal injury cases, attorneys fees for medical malpractice cases are based on a contingency. This means that we don’t get paid unless we are able to win you a settlement. One big difference, in CaliforniaMedical Malpractice cases is that attorneys are bound to the following MIRCA contingency limitations:

Maximum of 40% of the first $50,000 recovered;

maximum of 33 1/3rd of the next $50,000 recovered;

maximum of 25% of the next $500,000.00 recovered; and

15% of any amount recovered in excess of $600,000.

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