California law defines “medical negligence (Malpractice)” as:
1. A negligent act or (omission to act) by a health care provider,
2. In the rendering of professional services,
3. In which an act or omission is the proximate cause of a personal injury or wrongful death,
4. Provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.
Who can be Sued for Medical Negligence (Malpractice) in California:
California medical negligence laws apply to all healthcare providers and facilities licensed by the state including (without limitation):
7. Physical therapists
What Damages can a Plaintiff Recover:
People injured by medical negligence in California can recover compensatory damages that include, but are not limited to:
1. Medical bills,
2. Home health care,
3. Physical and occupational therapy,
4. Lost wages,
5. Lost earning capacity, and
6. Non-economic damages such as pain and suffering.
Damage Caps in California Negligence Cases
California Civil Code 3333.2 puts a cap of $250,000 on non-economic damages in medical negligence cases. California Civil Code 3333.2 is the result of the Medical Injury Compensation Reform Act (MICRA), which California voters passed in 1975. The $250,000 medical negligence damages cap applies to losses that are difficult to place a value on. Such “non-economic” damages include (but are not limited to):
6. Loss the use of an organ or limb
7. Loss of life enjoyment.
Other than as set forth above, there is no cap on the amount of compensatory damages a plaintiff may sue for in a professional negligence case.
It is very rare for a plaintiff to recover for punitive damages in a California medical negligence case, but the law allows it if a plaintiff can show by clear and convincing evidence that the defendant committed oppression, malice or fraud.
In the context of a professional negligence claim, this usually means showing that the defendant’s conduct was despicable and done either intentionally or with a willful and conscious disregard of the rights or safety of others.
What is the Time Period for Bringing a Medical Negligence (Malpractice)
Statute of Limitations
The amount of time a plaintiff has to sue is known as the California “statute of limitations” or “limitations period.” The limitations period in a California professional negligence case depends on whether the injured party is an adult or a minor.
Adults must commence a lawsuit for medical negligence (malpractice) in California by the earlier of:
1. Three years after the date of injury, or
2. One year after the plaintiff discovers, or
3. Through the use of reasonable diligence, when the plaintiff should have discovered the injury.
When the person injured by medical negligence (malpractice) in California is a minor under the age of 18, the statute of limitations runs until the later of the two:
1. Three years from the date of the alleged wrongful act, or
2. If the minor is was less than six years old at the time of the injury, the minor’s eighth birthday.
Exceptions to the Statute of Limitations
The limitations period for a professional negligence action against a healthcare provider may be “tolled” (paused) during periods in which:
1. A healthcare provider commits fraud;
2. A healthcare provider intentionally conceals wrongdoing;
3. There is a foreign body that has no therapeutic or diagnostic purpose or effect inside the injured person; or
4. A minor’s parent has colluded with the defendant’s insurer or a health care provider not to bring a medical negligence action on behalf of the injured minor.
Proving Medical Negligence (Malpractice):
A healthcare provider is negligent if he or she fails to use the level of skill, knowledge, and care that other reasonably careful practitioners would use in the same or similar circumstances.
This level of skill, knowledge, and care is sometimes referred to as “the standard of care” or “duty of care” in California. Establishing the standard of care generally requires the testimony of one or more expert witnesses.
In addition, the plaintiff must prove that the defendant’s breach of the standard of care actually caused the plaintiff’s injuries.
In other words, it is not enough that the outcome of a particular treatment or diagnosis was wrong. There must have been something that the doctor should or should not have done and which resulted in injury to a patient.
Finally, the plaintiff must prove that injury resulted from the medical negligence. Importantly, it is not necessary that the negligence by the sole cause of the injury, but it must be a substantial factor in bringing about that injury sustained.
Some Common Medical Negligence (Malpractice) Theories of Liability:
Surgical Care and Physician Liability
The standard of care, in surgical cases, generally encompasses three phases:
1. The pre-operative consultation
2. The operation itself
3. The post-operative care
A breach of the standard of care at any phase can trigger potential liability. In the case of post-operative care, health care providers are charged with ensuring that adequate measures are taken to prevent infection or other complications. This is often a matter of monitoring a patient’s status — either on in-patient or outpatient basis.
Negligent Errors in Performing Medical Procedures
Accidents that occur during medical procedures and surgeries are perhaps the most common type of claim. In some cases, the negligence is obvious – for instance, when a doctor stitches up a patient after surgery but leaves surgical equipment or supplies inside the patient’s body. In other cases, physician error during surgery can exacerbate harm, trigger excessive bleeding or nerve damage, or even cause death.
Negligent Administration of Medication
Another common type of medical negligence is when an improper drug, or an improper quantity of a drug, is administered to a patient. Mistakes pertaining to the wrong medication or the wrong dosage are often the result of communication errors between doctors and nurses.
Faulty or Missed Diagnoses
In California, physicians can be held liable for medical negligence for both the treatment and the diagnosis of a patient. Misdiagnosis and failure to diagnose is a common type of physician error.
Lack of Informed Consent
Most medical procedures or treatments involve some risk. It is the doctor’s responsibility to give the patient information about a particular treatment or procedure so the patient can decide whether to undergo the treatment, procedure, or test. Typically, doctors typically require patients to sign a consent form detailing the risks of any given treatment or procedure. But signing a form alone does not necessarily prove that the patient gave informed consent. The doctor must actually discuss the procedure and risks with the patient. And the patient must understand, to the extent possible, the risks he or she faces. The law does not require aa doctor doesn’t have to tell a patient about every possible thing that might happen as a result of a procedure or treatment, but only those risks that are important. There are two important questions: Would other doctors have disclosed the risk and would a normal patient have made a different decision if informed of the risk? Importantly, there are several exceptions to the informed consent rule.
“The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.
However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be
pleaded in negligence.
Hospital and Facility Liability for Medical Negligence
Typically, nurses, medical technicians, and support staff are hospital employees. As long as the employee was doing something job-related when he or she caused an injury to a patient, the patient can usually sue the hospital for resulting damages.
Hospitals can be held directly liable for:
1. Negligent training of staff;
2. Negligent supervision;
3. Negligent hiring; or
4. Failure to have adequate procedures.
Hospitals Normally Not Vicariously Liable for Doctors
In California, hospitals almost uniformly contend, when they are sued for medical negligence, that the doctors who work at the hospital are independent contractors, and the hospital is not liable for the doctors’ negligence. California case law, however, is not so clear and, at least when the patient arrives for emergency care, is to the contrary in most circumstances.
Some California courts, however, have recently carved out an exception to this rule where there is “Ostensible or Apparent Agency” between the doctor and hospital. Generally, under California law, ostensible agency may exist where “by want of ordinary care” a principal “causes or allows a third person to believe” another is its agent.
In the hospital context, for ostensible agency, this is satisfied where a patient seeks care at the hospital because the hospital is “deemed to have held itself out as the provider of care”, unless it gave the patient contrary notice.