We all entrust ourselves and our children to the care of a doctor or other health care professional from time to time. When any doctor or other health care professional makes a mistake in diagnosing what’s wrong with a patient, or in discovering that something is wrong, or in the treatment prescribed or the surgery undertaken, the results can be catastrophic -- permanent disability or death.

What Is Medical Malpractice?
The negligence of a doctor or other medical provider in the course of rendering professional services is commonly called “medical malpractice.” But not every failure to diagnose or bad outcome from medical care is medical malpractice. A doctor or other health care professional is not necessarily negligent just because his/her efforts are unsuccessful or he/she makes an error of judgment or reaches an erroneous conclusion that was reasonable under the circumstances. On the other hand, it is not enough that the health care professional has done his/her “best.”

A health care professional is negligent if he/she was not as skillful, knowledgeable, or careful as other reasonable health care professionals of the same type would have been in similar circumstances. In other words, a breach of the standard of care is negligence or medical malpractice.

What is the Standard of Care?
• It is the failure to exercise the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful medical practitioners of the same type would possess and use in similar circumstances.

• Specialists are held to the higher standard of learning and skill normally possessed by such specialists in the same or similar locality under the same or similar circumstances.

• The adequacy of a nurse’s performance is tested with reference to the performance of other nurses, and is not measured by the standard of care required of a doctor or surgeon.

Ordinarily, the standard of care required of a doctor or other health care professional -- and whether he/she exercised such care -- can be established only by the testimony of a qualified expert in the same field or specialty as the health care professional whose care and treatment is being challenged.

For example, if a primary care physician is negligent in failing to make a timely diagnosis or in failing to refer a patient to a specialist, the opinion testimony of a primary care physician regarding the standard of care for primary care physicians and whether the particular primary care physician under scrutiny exercised such care, will be necessary to prove a claim for medical malpractice.

There are exceptions to the requirement of expert testimony to prove medical malpractice -- such as when a sponge or surgical instrument is left in the patient’s abdomen. A layperson needs no help from experts to know that this can only happen when a health care professional is negligent.

What Duties Do Hospitals Have?
A hospital is negligent if it does not use reasonable care toward its patients. The duty of a hospital is to provide procedures, policies, facilities, supplies, and qualified personnel reasonably necessary for the treatment of its patients.

The amount of care that a hospital must exercise toward a patient varies depending on the patient’s condition. A hospital’s duty extends to both treatment and care.
Hospitals must monitor a patient’s condition and observe the progress of a patient in his/her recovery. A hospital has a duty to provide sufficient staff, and must maintain safe conditions on their premises. A hospital must use reasonable care to select and periodically evaluate its medical staff so that its patients are provided adequate medical care. A hospital must use reasonable care to prevent a patient from harming himself/herself if the hospital knew or reasonably should have known that the patient might do so.

What Duties Do Patients Have?
Patients also have a duty to use reasonable care to provide for their own well-being. This includes a responsibility to follow a health care professional’s instructions and to seek medical assistance when a reasonable person in the same situation would do so. When there is evidence that a patient suing for medical malpractice failed to do so, the health care professional being sued may be able to prove that the patient’s own negligence caused or contributed to the outcome.

Must The Medical Malpractice Cause Harm?
A patient who sues a health care professional for medical malpractice must not only prove that the health care professional was negligent because he or she breached the standard of care that applied to their field or specialty, the patient must prove that the negligence caused harm. This means that what the health care professional did or did not do, must be a substantial -- not a remote or trivial -- factor in bringing about the harm even if it was not the only cause of the harm. By the same token, if the harm would have resulted anyway, then the negligence of the health care professional did not cause it.

For example, if a radiologist is negligent in reading an x-ray and misses the opportunity to make a timely diagnosis of a condition that could have been treated and cured, the radiologist’s negligence is a cause of harm if the patient dies or suffers disability. But if the radiologist’s negligent reading of the x-ray occurred at a time when it was already too late to treat the condition and save the patient, the radiologist’s negligence was not the cause of harm if the patient dies.

Must A Patient’s Consent Or Refusal For A Procedure Or Test Be Given & Be Informed?
A patient must actually consent -- by words (express) or by conduct (implied) -- to a particular medical procedure or diagnostic test. If the patient did not consent, the health care professional commits a battery -- which is a civil wrong -- unless an exception or justification applies.

And a patient’s consent to a medical procedure must be “informed,” meaning the consent is given only after the health care professional has fully explained -- in language that the patient can understand -- the proposed treatment, procedure, or diagnostic test -- including the likelihood of success and the risks of agreeing to the medical procedure. A health care professional must give the patient as much information as he/she needs to make an informed decision, including telling him/her about any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. But the health care professional is not required to explain minor risks that are not likely to occur.

A patient must also be given the same type of information when he or she refuses a therapeutic procedure or diagnostic test so that his/her refusal is an informed one.

There are exceptions and defenses to the requirements for a health care professional to get an informed consent or an informed refusal -- such as when the health care professional proves that:
• the particular patient would have consented even if a reasonable person would not have;
• the patient asked not to be told of the risks;
• the procedure involved was a simple one and it is commonly understood that any dangers were not likely to occur;
• the information would have so seriously upset the patient that the patient would not have been able to reasonably consider the risks of refusing to have the medical procedure;
• an emergency existed.

Medical Malpractice Claims Have Special Rules & Limitations
Claims for medical malpractice in California are subject to a number of different rules from those which apply to all other claims for personal injury, including:
• The time limits for filing claims;
• The requirement to give advance notice of the intent to sue a health care professional;
• The attorney’s fees which may be charged;
• How the receipt of benefits from other sources will be handled when there is a settlement or favorable judgment against a health care professional;
• A cap of $250,000 on the total amount the victim of medical malpractice may recover for past and future pain and suffering damages -- but there is no cap on economic damages;
• A cap of $250,000 on the total amount the spouse, children or other eligible heirs may recover for loss of the society, comfort and companionship of a loved one who dies due to medical malpractice -- regardless of the number of eligible heirs who suffer these losses – but there is no cap on economic damages;
• The period of time over which a health care provider may pay a judgment for money damages in certain circumstances.

You are not alone. See how we will help.

Se Habla Espanol