Several times a week our office gets phone calls from Coachella Valley residents claiming they were victims of medical malpractice. Often, we hear terrible stories ranging from the unexpected death of a loved one due to what is believed to be medical error to stories about more minor injuries where the person thankfully avoided serious injury due to the alleged error of a doctor, nurse or other healthcare provider. Unfortunately for many people who believe they were injured by a doctor, nurse or other healthcare provider, the determination by an attorney on the viability of a medical malpractice lawsuit is not always “black and white”. In fact, it is complex for some of the reasons described in this blog.
First: What is Medical Malpractice?
Medical Malpractice occurs when a healthcare provider (hospital, doctor, nurse, or other healthcare provider) breaches the standard of care when providing care and/or treatment to a patient. Think of standard of care in terms of whether the actions of the healthcare provider were reasonable under the circumstances. Furthermore, the breach of the standard of care must in addition, then cause injury to the patient. Without the breach of the standard of care, causation or injury, there is no medical malpractice case.
For example, assume a doctor carelessly read your medical chart and prescribed the wrong medication to you. Now assume that you took this medication and did not suffer with any negative symptoms or injury. Do you have a medical malpractice claim? Probably Not. Although you can most likely establish breach of the standard of care (physician should have read your medical chart with due care), that did not “cause” any identifiable injury or damage to you.
Now, assume after ingesting this medication, you suffered a heart attack. Do you have a medical malpractice claim? Probably Yes. Assuming the medication given to you more likely than not caused the heart attack, you can now show that the breach of the standard of care caused actual injury.
The example above is very simplistic in nature and the determination of whether a medical malpractice claim is viable is a factual investigation which should be determined by the opinion of medical experts. Some of the more commonly filed lawsuits alleging medical malpractice include: Birth Injuries, Misdiagnosis, Surgical Errors, Emergency Room Errors, Hospital Errors, Nursing Errors, Anesthesia Errors, Medication Errors, Laboratory Errors, and Radiology Errors.
Second: How do you prove Medical Malpractice?
To win your medical malpractice case, you will need to hire medical experts in the particular field or fields of medicine which is or are the subject of your lawsuit. Let’s assume an attorney is reviewing a failure to diagnose breast cancer case and it is believed that the radiologist missed a suspicious, spiculated, asymmetrical mass in the breast which was visible on an x-ray or CT scan. Prior to the filing of any lawsuit, the attorney reviewing the matter should have that diagnostic study reviewed by a board-certified radiologist to render an opinion on whether the failure to identify the mass on the x-ray or CT scan was a breach of the standard of care. If the expert radiologist formed the opinion that the failure to identify the suspicious mass was a breach of the standard of care, then you must move on to the next phase: did that breach of the standard of care cause injury? In order to legally assess whether this breach of the standard of care caused injury, the attorney will consult with an oncologist to assess whether this failure to identify the mass (which is now determined to be cancer of the breast) caused injury. Although not universal, it is generally agreed amongst experts that earlier detection of cancer yields a better prognosis with greater treatment options. If the expert radiologist concludes that the failure to identify the mass was a breach of the standard of care for a radiologist and the expert oncologist is of the opinion that the breach caused a patient to suffer injury or damages, then, you have a viable malpractice case.
What is critical to the successful prosecution of a medical malpractice case is having credible medical experts on board supporting your allegations of malpractice. Failing to have medical experts on board willing to testify at the time of trial and support the malpractice claim will be fatal to your case.
Third: The Costs of Prosecuting a Medical Malpractice Case.
Medical malpractice cases are almost always taken on a contingency fee, which is governed in California by Business & Professions Code Section 6146. The attorney generally advances all costs associated with prosecuting a medical malpractice case. These costs include, but are limited to: (1) Retaining Medical Experts in Various Medical Fields, (2) Depositions Costs, (3) Filing Fees, (4) Jury Fees, (5) Motion Fees, (6) Travel Expenses, (7) Mediation Costs, (8) Subpoena Fees, (9) Witness Fees, and (10) Consultant Fees.
Depending of the complexity of the case and/or the number of defendants, the costs to prosecute a medical malpractice case from start to finish can range from $20,000 to well over $100,000.00. Prior to the filing of a medical malpractice case an attorney will likely spend thousands of dollars in hiring medical experts to review the medical records to render an opinion on whether there was a breach of the standard of care, causation and damages. Due to the enormous financial risk associated with prosecuting a malpractice case, attorneys often reject cases when the financial risks greatly outweigh the likelihood for success in obtaining a significant judgment for damages.
Fourth: Medical Malpractice Cases Are Aggressively Defended.
Don’t expect that once you have retained medical experts who are willing to testify that malpractice occurred that you are home free. In fact, the battle has just begun. Physicians, hospitals and other healthcare providers, through their liability carriers, will be assigned very competent defense counsel to defend them. These defense attorneys are paid hourly, so it’s rare that they waive the white flag in the beginning of litigation. Even in very strong plaintiff cases, the defendant healthcare providers will generally always find medical experts supporting the medical care and treatment provided by the healthcare defendants, including providing the opinion that there is no breach of the standard of care and/or raising defensible issues relating to causation or other issues. Because the defendants will likely have their own medical experts supporting their defense, plaintiffs are put in the precarious position of not knowing which expert a jury will believe. This is commonly referred to as “the battle of the experts”.
Fifth: What Kind of Damages Are Recoverable in a Medical Malpractice Lawsuit?
Generally, there are two types of damages a plaintiff can recover in a medical malpractice case: general damages and special damages.
General Damages. General damages are those intangible damages which include, but are not limited to past, present and future pain, suffering and mental anguish. These damages are by law, capped under the The Medical Injury Compensation Reform Act, which was enacted in 1975, commonly referred to as MICRA. This Act capped general damages to $250,000.00. This means that the maximum amount a plaintiff can receive for general damages in an action against a healthcare provider is $250,000.00. Put to its extreme, if medical error caused the death of your loved one, the most you can received for pain and suffering is $250,000.00. If a physician negligently amputates the wrong limb, the most you can received for pain and suffering is $250,000.00. Compare this to an auto accident, where the death of a loved one caused by the negligence of another could be in the millions of dollars for general damages. Clients are often shocked when they hear this news. This cap on general damages has not changed nor increased with inflation or the cost of living since it was enacted.
Special Damages. Special damages are those damages generally associated with out of pocket losses and include, but not limited to, past, present and future medical expenses, loss of income, diminished earning capacity, etc. There is no limitation on the amount of special damages a person can receive in a medical malpractice action; it’s all according to proof.
If you believe you have been injured as a result of a medical error (medical malpractice), please give Sklar & Sklar a call. We represent clients throughout Riverside County and San Bernardino County, including, but not limited to: Palm Springs, Cathedral City, Rancho Mirage, Palm Desert, La Quinta, Indian Wells, Indio, Coachella, Joshua Tree, Morongo, Banning, Desert Hot Springs, Beaumont, Moreno Valley, Thousand Palms, Bermuda Dunes, and Twentynine Palms.
To learn about some of our recent successes in medical malpractice, please click here: Sklar & Sklar recent successes.