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Medical Malpractice FAQs

What is Medical Malpractice?

Medical malpractice is professional negligence by a doctor, hospital, or other health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient. It can be something the provider did incorrectly, or something the provider failed to do that caused the injury. Standard of practice (or standard of care) refers to what a reasonable doctor in the same practice area would do with the same or similar patient under the same or similar circumstances.

A member of my family died a week after having surgery. Was this malpractice?

Not necessarily. People get sick and sometimes die, in spite of their doctor’s best efforts. A bad outcome is caused by an unintended complication over which the doctor had no control. Usually the patient signs a consent form that states possible complications. In some cases, however, death following surgery might indicate a possibility of malpractice.

How do I know if malpractice was committed?

It is always necessary to consult with a medical expert in the same field as the doctor at whom you are looking as a potential defendant. You will need to obtain your medical records and have them reviewed by that expert. At Abronson Law Offices, we can put you in touch with the right medical experts to determine whether you have been the victim of malpractice.

What should I do if I think I’m a victim of medical malpractice?

You should talk to a California medical malpractice lawyer as soon as possible. If possible, take your medical records with you. There are time limits restricting how much time you have to bring a medical malpractice claim, so you should act quickly or you could lose your right to sue.

Do I need a medical malpractice lawyer?

Yes. Although there is nothing in the law to prevent you trying to negotiate a settlement alone, it would rarely be in your best interests to do so. These are often complex cases that require extensive medical and legal knowledge. Any information or statement you give an insurance adjuster has the potential to harm your case. Adjustors try to elicit statements that they can use to decrease the value of the case, and they demand general authorizations to use on a fishing expedition to find anything they might be able to use to discredit you. You are not required to give a recorded statement or sign any authorizations at this point. You should have no dealings with a medical malpractice insurance company without a lawyer.

What will a good malpractice lawyer in California cost?

Medical malpractice lawyers often work on a contingency fee arrangement, which means no payment is due until there is a settlement or jury award. Then attorneys fees come from the recovery. The amount the lawyer can receive is determined by a sliding scale according to California statute.

How do you prove a medical malpractice case?

By your attorney, you will need to prove each of four elements:

  • The duty of care that was owed by the physician
  • That the physician violated the duty of care
  • That the person suffered an actual injury that entitles compensation
  • The injury was caused by the substandard conduct.

What damages can I claim?

A negotiated settlement of a typical medical malpractice claim (or a jury award after the conclusion of a full civil trial) will include compensation for pain and suffering, payment of medical expenses for treating any harm or injury caused by the malpractice, and reimbursement for any past, present, or future financial losses that you have incurred or will incur as a result of the malpractice. Non-economic damages, for example pain and suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life is capped at $250,000 in California in a medical malpractice action.

Do medical malpractice cases settle out of court?

Sometimes. Most medical malpractice insurance policies give the doctor the right to decide whether or not to settle. Doctors often do not want their reputation harmed by having a malpractice settlement reported to a national data bank, which will happen if they settle, even for a very low amount. Therefore, it is often necessary to go to trial.

How long will my case take?

That depends. If it is one of those cases that can be settled out of court, it may be resolved in less than a year. However, a typical medical malpractice case may take up to two years or more. This will depend on such variables as the availability of expert witnesses and how backed up the courts are.

Will my lawyer order my medical records, or do I have to get them myself?

You should try to obtain your own medical records first, because when doctors and hospitals get a request from a lawyer, they are immediately alerted to a possible malpractice claim.

I signed a consent form before my procedure. Does that mean I can’t recover damages in a malpractice action against my doctor?

No, not necessarily. A consent form does not release from a physician from liability for negligence. If you can prove that your doctor failed to provide the applicable standard of care before, during, or after the procedure, and you were injured as a result, you may still have a case. The same is true is the doctor did something in excess of what you consented to or failed to inform you that the procedure or a medication prescribed was experimental.

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