What is medical malpractice?
Assuming the patient goes to a doctor and gets a bad result, are these easy cases to win?
Do all medical malpractice cases end up in trial?
How are binding arbitrations conducted in medical malpractice cases?
How much can a victim of malpractice recover?
Are there any other limits on medical malpractice lawsuits?
How can a consumer tell if they should bring a medical malpractice lawsuit?
What do you do when you to want to prove that someone died because of negligence or abuse?
What will an attorney do to determine if I have a good case?
How much do medical malpractice attorneys charge to represent a victim?
What can I do to make sure I select a good attorney to handle my medical malpractice case?
How do we get my medical records?
Why Won't a Cap on Damages Relieve the Crisis in Health Care?

Q: What is medical malpractice?

Medical malpractice, or more appropriately, medical negligence is that type of claim which a victim has available to him or her to pay for a wrong committed by a doctor or other medical professional which has caused bodily harm.

Medical malpractice is much more than the physician or other health care provider making a simple mistake. Malpractice occurs when the health care provider does something that other good doctors would have not done or else fails to do something other good physicians would have done .

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Q: Assuming the patient goes to a doctor and gets a bad result, are these easy cases to win?

No, these are among the most difficult cases for a victim or victim's attorney to win. In California, 9 out of 10 jury verdicts are in favor of the doctor .

In order to bring a malpractice case to trial, it is necessary to have expert testimony describe what was done wrong and how it could have and should have been avoided. Good reliable experts are expensive and difficult to find. Often, doctors in the community won't testify against one of their own colleagues and out of town doctors have to be brought in to testify.

When the victim does win, the amount that victim can obtain is severely limited by legislation which was passed under heavy lobbying by the insurance industry and medical community.

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Q: Do all medical malpractice cases end up in trial?

While a malpractice case may settle before going to trial, the insurance company cannot settle the case without the doctors' consent. Doctors in most cases are unable to admit that they are capable of making a mistake. Without the doctor's consent the case cannot settle no matter how much the patient and the doctor's insurance company may want to settle it.

In addition, there is a whole category of medical malpractice cases that never go to trial, but instead are resolved through binding arbitration. Many hospitals and doctors have the clients sign an agreement to go to binding arbitration if there is any dispute. These agreements are often in fine print in the initial papers the patient fills out when they first see the doctor or when they are initially admitted to the hospital. Often, the patient doesn't realize that he or she has signed a binding arbitration agreement until there is a problem and the lawyer finds this clause buried in the patient's medical records. These binding arbitration clauses are usually iron clad .Courts have found them to be enforceable not only against the patient, but also against the patient's spouse and unborn child !

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Q: How are binding arbitrations conducted in medical malpractice cases?

In California, if the patient concedes that there case is worth less than $200,000.00, then the case is decided by a single arbitrator selected jointly by all parties.

If the patient believes their case is worth in excess of $200,000.00, the case is decided by three arbitrators: One selected by the patient, one selected by the health care provider and a neutral arbitrator mutually agreed upon by both sides.

Because arbitrators charge several hundreds of dollars an hour for their time, arbitrations can become very expensive.

Additionally, most arbitration clauses patients sign provide that each side bears their own cost. That means that even if the patient wins their medical malpractice claim, they still have to pay all of the costs for the experts and the arbitrators out of their own pockets. This is different from most trials where the victim's attorney tries to shift the costs to the defendants if the victim wins the trial.

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Q: How much can a victim of malpractice recover?

Regardless of the age of the victim or the severity of the injury, the most any victim of malpractice can get for his or her pain and suffering is $250,000.00 in California. So, even if a baby is born permanently blind and paralyzed because of a doctor or hospital's mistake, the most that infant can expect to get for its lifetime of pain and suffering is $250,000.00.

Efforts have been made to remove this harsh cap, but as recently as a few months ago the California legislature voted down bills to increase this ceiling.

In addition to this $250,000 limit for pain and suffering, there is no limit on how much the victim can get for future medical expenses or future lost wages.

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Q: Are there any other limits on medical malpractice lawsuits?

Yes, perhaps the harshest limit is the statute of limitations. In the United States, California has the shortest time limit in which a victim can assert a medical malpractice claim.

Generally, if a victim doesn't takes steps to formally preserve his or her claim for malpractice, all rights to bring any lawsuit will be lost one year after the patient discovers the injury , or three years after the date of the injury, whichever occurs first.

There is an exception to this rule for minors, or if the health care provider committed fraud or in the unusual situation where the doctor left a foreign body inside of someone during surgery.

But again, generally there is a very limited window of opportunity for a victim to bring a malpractice claim so if someone thinks they have been permanently injured by a doctor, they should consult a good attorney right away.

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Q: How can a consumer tell if they should bring a medical malpractice lawsuit?

Because of the large expense involved in hiring experts and bringing a malpractice case coupled with the difficulty in winning these cases, only the most seriously injured victims' claims can be pursued .These cases are extremely hard fought and more emotionally taxing for the client than almost any other type of litigation.

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Q: What do you do when you to want to prove that someone died because of negligence or abuse?

An autopsy is usually necessary if you truly want to prove in a court of law what caused a person’s death. While it is not impossible to win a lawsuit without an autopsy , in many circumstances, it will be extremely difficult to prove a case without one. Even if you know (or think you know) the cause of death ,an autopsy can provide valuable information to aid in the lawsuit as well as providing answers to family members about the circumstances surrounding someone’s death.

For example, if someone dies of a heart attack (cardiac arrest) an autopsy may be able to show whether there were any prior, silent attacks, approximately when each such attack occurred and whether or not the final cardiac arrest was the type that could have been prevented with good medical care.

Better if the autopsy is done somewhere other than at the hospital where the questionable medical care was rendered. If adequate funds are available, consider having the autopsy performed at a university medical center . Specifically request that the doctors involved in the care and treatment of the patient NOT be allowed to be present during the autopsy and for the medical examiner/ pathologist/toxicologist involved in the autopsy NOT communicate with the treating doctors about their findings.

It generally will l take a couple of months to get the final report regarding the autopsy. In the interim, whomever is listed as next of kin on the death certificate should IMMEDIATELY order ALL records from the hospital or health care facility where the questionable care was rendered. . Bring the photo ID of the heir requesting the records together with a copy of death certificate to the medical records department when requesting records . Write down the name of whomever is taking the order for the records and the date the records will be ready. Please see additional information above about obtaining medical records.

You need to get those records ASAP before the autopsy is completed so the health care providers won't be able to change the records to conform to whatever is in the autopsy report that may or may not help them.

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Q: What will an attorney do to determine if I have a good case?

If the victim suffered a severe , permanent injury, a malpractice attorney will read and summarize all of the person's medical records to make an initial determination as to whether there is a viable case. Often, the attorney will do medical research to assist in the initial evaluation.

Before bringing a malpractice lawsuit, a competent and ethical attorney will first have the medical chart reviewed by a qualified expert to make sure that there is a case.

It is impossible to ascertain the merits of a medical malpractice lawsuit without extensive investigation, research , evaluation and consultation with medical experts.

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Q: How much do medical malpractice attorneys charge to represent a victim?

Attorneys are hired on a contingency fee basis. That means the victim does not have to pay the attorney by the hour for his or her time. Attorneys' fees in medical malpractice lawsuits are set by statute in California. The fees are forty percent (40%) for the first $50,000 recovered and goes down from there on a graduated scale where at the top end the attorney receives fifteen percent (15%) for any sum in excess of $600,000.00.

But remember that in addition to the attorneys' fees there are also a lot of expert costs associated with malpractice cases. These are separate and apart from the attorneys' fees. On a case by case basis attorneys make different arrangements for payment of expert costs.

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Q: What can I do to make sure I select a good attorney to handle my medical malpractice case?

Make sure that the attorney devotes a substantial part of their practice to medical negligence claims and that he or she has done so for a number of years.

Ask the lawyer about other medical malpractice cases he or she has handled. If he or she hasn't handled a case involving your same scenario before, has he or she had one that involves the same specialty? If so, ask them to describe it .

Ask the attorney if he or she has taught medical malpractice to other attorneys or authored any books or articles in the area. If not, what does the attorney do to keep abreast of changes in both law and medicine?

Is the client expected to pay for the initial expert's evaluation? If so, who much will it cost and when is the money due?

Will the case be handled by the attorney personally or will it be handled by an associate? If handled by an associate, what experience does the associate have and how much direct involvement will the primary attorney retain in the case?

What kind of experts will the attorney retain to review the file? Ask to see the experts' curriculum vitae (resume) to make sure the expert has a solid background .

This final issue is the most important factor . The investment both the victim and the attorney will make in pursuing the case will involve a tremendous amount of effort, time and resources. Given how difficult medical malpractice cases are to win, the client should make every effort to ensure they have a solid case before proceeding forward.

From society's point of view the filing of a claim which ultimately cannot be proved hurts the civil justice system and will be used to attack the system by those who try to eliminate the rights of victims.

Lastly remember that this is a claim that is about to be asserted against a professional for failure to properly carry out his or her duty. This step should never be taken lightly.

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Q: How do we get my medical records?

No one can determine whether or not you have a good case without reviewing your medical records. Sometimes, it is better for the patient to obtain a copy of ALL medical records rather than having the attorney obtain the records.

There are both benefits and detriments to having the patient obtain the records first rather than the lawyer. The benefits of having the patient pull his or her own records include the following: If it turns out there is no case, the health care provider need never know that the patient had a lawyer review the records. Second, if the records are pulled simply so the patient can obtain a "second opinion" ,the health care provider is less suspicious in handing over the records. This means records are less likely to be changed (yes, on rare occasion health care providers have been known to lose or change select records!) Finally, sometimes the provider will charge a patient less for a copy of the records than they would charge an attorney.

The benefits of having the lawyer pull the records include the fact that it is easier for the patient not to struggle with the medical records department of the hospital or doctor.

Often, if the health care provider knows that an attorney is involved, they will not release the records without first sending a copy of them to their own attorney or risk management department for review. This can add several weeks to the process.

When weighing the pros and cons , it is better for the patient to try to obtain their own records .

The patient should try to obtain ALL RECORDS and as SOON AS POSSIBLE . If the doctor or hospital resists giving the patient their records, it may be helpful for the patient to download and print the following information from the California Medical Board and to hand it to the provider resisting the attempts to produce the medical records. http://www.medbd.ca.gov/Medical_Records_Access.htm

If the records are being obtained in a wrongful death case, the next of kin should give the health care provider a copy of the death certificate listing the individual as next of kin and a copy of their identification proving that they are indeed the person identified as next of kin on the death certificate.

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