For one to successfully prove a medical malpractice suit in a court of law in California, the claimant is required to establish a number of tenets, including:
- Duty Owed – Whenever a provider of healthcare such as a physician begins to take care of a patient or takes the patient as a client, he or she becomes privy to a legal duty of service. However, for a valid claim of malpractice to be made by a claimant, it is necessary for there to have been a valid patient and physician relationship that can be proven in a court of law.
- Dereliction of Duty – This is another way of discussing the duty that should have been performed by the healthcare provider but was not. The standard of treatment that was performed must not have been acceptable in comparison to what would have been expected from a reasonable professional. Alternatively, there must have been a delay in the provision of said treatment. In some cases, one may need expert testimony for this to be proven.
- Breach of Duty – This must be proven by the claimant; the negligence of the physician or other healthcare professional must have been what led to the injury experienced by the patient or claimant. It must be possible to prove that had the physician or professional behaved in a different manner, there would not have been an injury.
Statute of Limitations
In the state of California a medical malpractice claim for injury or death must be filed within one year from the date the negligent act was discovered, or no more than three years from the date of injury. As is the case with most states exceptions to the statute of limitations are made for minors; legal actions brought forward either by or on the behalf of minors must be filed within three years from the date of the injury.
However, if the child is 6 years old or younger the claim can be filed within three years or before their 8th birthday, whichever is longer.
In relation to medical malpractice lawsuits there are two types of damages which are classified as either economic or non-economic. In California non-economic damages such as pain and suffering are capped at $250,000, which applies to both injury and cases of death. Other examples of non-economic damages include mental distress, loss of quality of life, permanent impairment or function loss, disfigurement, and loss of consortium.
Currently, there is no cap on economic damages such as compensation for lost wages, medical bills, and other related costs under the California Medical Injury Compensation Reform Act (MICRA) which came into effect in 1975.
California - News Articles
The cap for non-economic damages in California medical malpractice cases is set at $250,000, and it’s been that way since the Medical Injury Compensation Reform Act (MICRA) was first passed in 1975. The Consumer Watchdog advocacy group, along with a man whose two children died after a drugged driver crashed into them, wants to liftRead More
Voters in California are going to be the latest decision makers in a long and contentious argument over pain and suffering awards tied to medical malpractice. In California, pain and suffering awards (also called non-economic awards) have been capped at $250,000 for almost four decades in medical malpractice cases. A recently-qualified state ballot initiative (PropositionRead More