ACCESS TO JUSTICE FOR THE PEOPLE WHO HAVE BEEN INJURED BY THE NEGLIGENT ACTS OF THE MEDICAL PROFESSIONALS

Q: Why do I need a lawyer for a malpractice case?

A: If you are suing for medical malpractice or some other type of professional negligence, the law says you need to prove that the doctor or other professional breached (broke) the duty of care owed to you and that you suffered damages as a direct and proximate cause of the breach. These legal requirements are very hard to prove, and you will need expert witnesses to do it.

Expert witness fees are very expensive. They can often cost several thousand dollars per day. The expert witness fees must be paid for consulting, which includes reviewing records, examining a patient, and discussing findings with the lawyer, as well as for depositions and for trials. 

Experienced Medical Malpractice and Injury Attorney in Los Angeles and Orange County.

The new MICRA law will go into effect on January 1, 2023 and will:

• Increase the cap to $500,000 for wrongful death cases and $350,000 for injury cases starting January 1st..

• Raise the cap in increments every year for ten years, until it reaches $1 million for wrongful death cases and $750,000 for injury cases in 2033.

• Allow for up to three separate caps in cases when multiple providers and institutions are responsible. Starting next year, the maximum cap could be $1.5 million for wrongful death cases, and $1.05 million for injury cases. By 2033 it will be a maximum $3 million for wrongful death and $2.25 million for injury cases.

• Increase the cap by 2% every year starting in 2034.

• Raise the contingency fee and base it upon whether the recovery is a settlement or a judgment.

AB 35, signed by Gov. Gavin Newsom in May 2022, will increase the cap annually. Under the bill:

1. For a non-death case, the cap increases from $250,000 to $350,000 on January 1, 2023, and increases $40,000 every year through 2033 until it reaches $750,000.

2. For a wrongful death case, the cap increases from $250,000 to $500,000 on January 1, 2023, and increases $50,000 every year through 2033 until it reaches $1,000,000.

3. After the caps reach $750,000/$1,000,000 in 2033, they will increase by 2% on January 1, 2034, and by an additional 2% every year thereafter.

4. MICRA limits a plaintiff’s recovery for noneconomic damages to $250,000, regardless of the number of defendants. AB 35 creates three separate categories of defendants for a total of three possible caps: One cap for healthcare providers (regardless of the number of providers or causes of action); one cap for healthcare institutions (regardless of the number of institutions or causes of action); and one cap for an unaffiliated health care provider or health care institution.

5. Periodic payments can be utilized for future economic damages starting at $250,000 (under MICRA, that started at $50,000).

6. The cap on plaintiffs’ attorneys' contingency fees goes to 25% if the action is settled prior to the filing of an action and 33% if the recovery occurs thereafter.

7. The bill provides for evidentiary protections for providers who make statements about fault prior to litigation. 

We fight for the victims of Medical Malpractice, Neglect, and Injury at Nursing Homes, Hospitals, Assisted Living, and Boarding Care Facilities. We make sure that the doctors, nurses, and medical providers' actions are according to the standard of care acceptable in the medical community. Physical and psychological injury can happen to anyone. We fight for the victims of negligence and negotiate the best settlement based on the complexity of the case or take it to trial. When the healthcare provider does not follow the standard of care, you or your loved ones can suffer permanent injuries, infections, delays in care, and even death. If you experienced an injury while receiving medical care from your provider, you may have a case for medical negligence against your doctor, nurse, dentist, nursing home, or a hospital. 

There are many kinds of medical malpractice cases and each one requires a specialist to evaluate facts and applicable law. If your loved one was injured while receiving care from a medical professional, please contact our office immediately for a free evaluation of your case as we have to adhere to certain deadlines in order to be able to help you.  

Some examples of medical malpractice include:

• Failure to adhere to the applicable standards of care for diagnosis and follow up

• Failure to diagnose or delay in the diagnosis

• Failure to provide treatment timely

• Failure to prescribe  the right medication at the right time at the right dosage

• Failure to interpret lab results, order necessary tests, or imaging

• Failure to provide correct anesthesia and correct follow-up after a procedure

• Failure to adhere to the hospital policy or nursing home policy

• Failure to provide the right treatment, brain injuries, birth injuries

• Wrong surgery, abandonment, or lack of consent. 

In order to bring a successful medical malpractice claim, the plaintiff must prove that the healthcare professional failed to adhere to the standard, was responsible for the care, and provided care negligently. Experts must certify that the healthcare professional made a mistake that other reasonable doctors would have not made under similar circumstances. The plaintiff would have to prove that such a professional mistake caused the injury and but for the healthcare professional mistake the injury would not have happened. A Plaintiff must prove real injury and real damages that are given a monetary value.  Experts usually testify as to the value of the physical damage, medical providers' negligence, lost wages, and medical bills.

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of the action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

If you suspect Medical Malpractice and Negligence please call or email our office for a free consultation. Ms. Jasinska is a licensed Registered Nurse and an Attorney. She has worked at a number of hospitals, nursing homes, care homes, boarding care, and home health agencies in various capacities and roles. She understands the challenges and the issues faced by each level of professional in the healthcare setting. As a nurse attorney, she also has a passion for holding professionals accountable for their actions and their level of expertise.

Amended Code of Civil Procedure § 377.34 now permits damages to be recovered for a decedent’s pain, suffering, or disfigurement, in an action brought by the decedent’s personal representative or successor in interest, if the action or proceeding was granted a specified preference under Code of Civil Procedure section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026. The amendment requires plaintiffs recovering under this statute to report their awards to the Judicial Council, and the Judicial Council will provide this information to the Legislature.

“Health care provider”: This term includes persons authorized to provide health care; i.e., both persons licensed to practice and those excepted from state licensing requirements. It includes medical students lawfully practicing medicine under statutory exception to licensing requirements; unlicensed social worker who is registered with appropriate agency and working toward licensure is “health care provider” under MICRA]

Among the duties that are within a general practitioner's standard of care

• Consult specialist or refer patient.

• Hospitalize if needed.

• Attend diligently and not abandon patient.

• Use due care in prescribing and administering drugs and devices.

• Prevent a patient from harming himself or herself or others.

• Inform a patient of the (1) risks of treatment and (2) risks of nontreatment.

• Not misrepresent a patient's medical condition or life expectancy; and

• Disclose an interest in the treatment suggested to the patient (such as when the doctor may use the patient's tissue for research).

DOCTORS MUST HAVE A DEGREE OF LEARNING AND SKILL AND USE ORDINARY CARE AND DILIGENCE IN APPLYING THAT LEARNING AND SKILL

A general practitioner who knows, or in the exercise of reasonable care should know, that special consultation is required must consult a specialist or refer the patient to a specialist. Failure to do so constitutes malpractice unless the doctor conformed to the standard of a specialist.

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of the action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

The medical malpractice statute of limitations (CCP § 340.5) permits tolling of its 3-year limitations period only for fraud, intentional concealment, the presence of nontherapeutic and nondiagnostic foreign bodies, or, in certain limited circumstances, when plaintiff is a child under the age of 8.

The same basic liability rules that apply to physicians and surgeons apply to dentists, osteopaths, chiropractors, podiatrists, nurses, pharmacists, blood banks and testing laboratories, EMTs, 911 services, hospitals, sanitariums, and rest homes. 

A healthcare provider is not liable for professional negligence or malpractice for any occurrence or result that was caused by the natural course of the patient's disease or condition or that was the natural or expected result of reasonable treatment for the disease or condition. CC §1714.8.

Plaintiffs must establish:

1. The defendant had a duty to use such skill, prudence, and diligence as other members of the profession possess and use

2. Conduct that breached that duty

3. A proximate causal connection between the defendant's negligent or wrongful conduct and the resulting injury

4. Actual loss or damage

Claims subject to contract arbitration: The CCP § 340.5 statutory periods do not apply when the medical malpractice dispute is governed by an arbitration agreement between the plaintiff patient and defendant health care provider. In these cases, if defendant refuses to submit to arbitration after a demand to do so, plaintiff's remedy is to petition the court to compel arbitration (CCP § 1280 et seq.); and plaintiff's enforcement action is subject to the 4-year limitations period for breach of a written contract.