What to do if you Experience bad Medical Results or Treatment
A medical malpractice case must be brought within one year from the date that you discovered the negligent act, but no more than three years from the date of the injury (California Civil Code sec. 340.5). For retained foreign body cases – where surgical scissors, for example, are left inside the abdomen – the statute is tolled until you discovered or should have discovered the injury.
Action on behalf of a minor must be brought within three years from the date of the negligent act, unless the child is under the age of six, in which case the action must be commenced within three years or prior to the child's eighth birthday, whichever provides the longer period of time.
Given the fact that the statute of limitations for adult claims differs from claims involving a minor, it is incredibly important to understand state and federal time restrictions for pursuing medical malpractice tort claims. Enlisting the expert advice and representation of a qualified attorney can make all the difference in successfully pursuing medical malpractice claims, and ensuring that you achieve the compensation you deserve.
When considering filing a medical malpractice complaint, it is also important to understand that the party/parties you identify as defendants can affect the process of pursuing your case. For example, Healthcare Districts are considered governmental entities; as such, you are obligated as the plaintiff to serve a claim to the appropriate governmental entity within six months, under Government Code sec. 910, subject to applications for Late Claim Relief and Late Claim Petitions to the Court. Other restrictions are applied to cases involving military and veterans hospitals as well. Public entities are immune from lawsuits, except that they may be liable for the tortuous acts of their employees (California Government Code sec. 815.2). Likewise, a public entity is not liable for the acts of an outside independent contractor, except to the extent that the public entity may be subject to liability as if it were a private person (California Government Code sec. 815.4).
Meritorious Medical Malpractice
Medical malpractice occurs when a healthcare provider deviates from the standard of care in a way that causes damage to the patient. Medical malpractice evolved as a branch of Negligence under Tort Law, and is a complex and multifaceted area of law today. Identifying incidents of medical malpractice first involves recognizing the standard of care in any given case. The standard of care is generally defined as the medical provider's duty to the patient. The provider's duty includes but is not limited to: having a degree of learning and skill possessed by similar healthcare providers in similar communities and using reasonable diligence and best judgment in the exercise of that skill. Only after the standard of care is identified can an experienced attorney determine whether and how that standard of care was compromised by the medical provider in question.
The Duty of a Specialist
A physician who is certified by a medical specialty board and practices in that field of specialty is held to higher professional standards. Consequently, the standard of care for a specialist is typically higher than that for non-specialized healthcare providers. In the event that a medical provider practices a specialty field without having the requisite training and/or licenses, he or she can be held to the standard of care set for that specialty.
A hospital or medical facility can be held liable for the negligent or harmful acts of employees in many cases, because employees serve as agents of the hospital. Just as the individual practitioner has a duty to comply with the standard of care, so does the hospital. It is the duty of the hospital to use reasonable care in providing patients with the care, attention, and protection reasonably required by their mental and physical condition. The amount of caution, attention, and protection that a patient requires depends upon his or her condition and needs, and the hospital's conduct in meeting the patient's needs is measured against community standards.
There are several circumstances under which a hospital can be held liable for damages in a medical malpractice suit. Patient injuries and/or illnesses can be linked to a hospital's failure to properly review the credentials of a physician, for instance. It can also be proven that a hospital failed to remove or restrict an impaired physician. Hospitals are obligated to enforce the mandates of the Joint Commission on Hospital Accreditation and other licensing/accrediting bodies, and account for any limitations to hospital facilities. Failing to identify limitations in services and provide patients with appropriate alternative facilities can be grounds for medical malpractice claims.
Medical Product Liability
Hospital facilities are required to conduct and maintain exhaustive inspection and testing programs for medical products. For instance, medical facilities must have backup systems in place in the event that a medical or surgical device fails. Beyond that, hospitals are responsible for the maintenance of and training on medical devices.
Elder Abuse and Dependent Adult Civil Protection
The Welfare and Institutions Code extends special protections to dependent adults and individuals ages 65 and older, providing for civil actions relating to elder abuse. A dependent adult may be anyone between the ages of 18 and 65, who has mental and/or physical limitations that restrict his or her ability to carry out normal activities or protect his or her own rights. Beyond that, the term “dependent adult” can also refer to individuals between the ages of 18 and 65 who are admitted to certain facilities as in-patient.
Elder abuse and dependent adult abuse can take many forms, including neglect, physical assault, and fiduciary abuse. While neglect and physical assault compromise the victim's physical safety, health, and well-being, fiduciary abuse relate to the financial exploitation of a vulnerable individual by a caregiver or guardian.
The Importance of Medical Records
Perhaps the most important component of any medical malpractice case is the plaintiff's own medical records. In order to illustrate negligence and determine damages in a medical malpractice lawsuit, it is first necessary to review the plaintiff's medical records and determine whether and where avoidable mistakes were made. Physicians not involved in the case are typically enlisted to review patient medical records and serve as expert witnesses for the plaintiff. The plaintiff's medical records are also a key tool in identifying whether and how the standard of care was compromised by the medical provider in question.