Your Los Angeles Medical Malpractice Case: The Basics

Your son's emergency appendectomy at the Children's Hospital went well, but during a checkup one week later the doctor reveals disturbing news: a surgical sponge was left inside his body! Now there is a huge risk of infection, and the surgeon wants to open little Johnny up again to dig out the sponge. This type of accident is unacceptable from a medical professional, but alarmingly, it's not uncommon. In fact, studies estimate thousands of hospital patients die each year as a direct result of medical malpractice involving surgical errors by healthcare professionals in the operating room.

The hospital will comp the second operation, of course, but how can they compensate your son for the additional suffering he must endure, or you for the sleepless nights of worrying?

FindLaw has created this guide to medical malpractice lawsuits in Los Angeles to help you know what lies ahead.

Initiating a Lawsuit

In California you must give medical malpractice defendants 90 days notice of your intention to pursuing a lawsuit before you can actually file it. Filing a lawsuit is as simple as drafting a complaint, which is a brief summary of the alleged malpractice, your injuries, the names of the defendants, and a request for compensation.

You can file your lawsuit in any of Los Angeles' many courthouses. Once it is filed, it will get a stamp in the upper right corner. You then need to make copies of this "conformed" complaint and mail them, along with a summons and civil case cover sheet (and L.A. County Addendum), to every defendant. You should use certified return receipt mail so you can later prove that the defendant was actually served with the papers.

Instead of shouldering this burden alone, you may wish to consider scheduling a free consultation with an experienced personal injury attorney. Plaintiff's attorneys usually work on a contingency fee basis, which means they earn a certain percent of your eventual recovery. This means you don't pay them unless and until they win, and this also gives them every incentive to maximize your settlement. California has a sliding scale that limits attorney fees, which cannot exceed 40% of the first $50,000 recovered, 33% of the next $50,000, 25% of the next $50,000.00 and 15% of damages exceeding $600,000.

Time Limits

The California statute of limitations places a deadline on when plaintiffs are permitted to file a medical negligence lawsuit. If the statutory period expires before you've filed, you will forever be barred from recovery. You have one year from the day you discover, or reasonably should have discovered the injury. However, the lawsuit must be initiated within three years regardless of the date of discovery, except for cases where a foreign object is left in the plaintiff's body.

Alternatively, if you allege that the doctor failed to obtain informed consent from you before beginning a treatment, the proper lawsuit is battery. Battery lawsuits have a two-year time limit.

Medical Negligence

Medical malpractice cases are governed by the law of negligence. Liability can arise from the doctor's failure to diagnose the patient correctly, an unreasonable delay in treatment, or improperly treating the patient. To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care, and this failure caused your injuries. Doctors are required to provide medical care as a reasonably competent health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.

To win, you must prove exactly what was expected from a doctor under the circumstances, and how your doctor failed to meet that expectation. Since most judges or jurors have little to no knowledge of standard medical procedure, an expert witness who can explain the applicable standard and point out the doctor's shortcomings is very helpful.

Informed Consent

A lawsuit for battery follows an intentional harmful or offensive touching. However, people can consent to allow others to "touch" them, and that includes doctors and surgeons. A doctor must receive consent from his patients before performing any potentially harmful surgery or treatment options.

Specifically, a physician must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's "informed consent" to proceed. There are three general components to informed consent:

• a disclosure informing the patient all the risks, benefits and alternatives of the treatment;
• an understanding of the disclosure by the patient, and;
• a voluntary (non-coerced) waiver executed by the patient.

Picking Defendants

The doctrine of "respondeat superior" provides that an employer is responsible for the tortious action of an employee acting within the scope of his or her employment. This means you can file your lawsuit against both the negligent doctor and the hospital that employs the doctor.

A hospital can also be sued independently under the "corporate negligence" doctrine. For example, the hospital may fail to maintain sanitary conditions, fail to screen employees for proper credentials, or improperly discharge a patient.

You may also have a product liability lawsuit against a pharmaceutical company if they created a medicine with unreasonably dangerous side effects that you were not made aware of, or against a company that designed or manufactured a defective medical device.

Limits on Damages

The Medical Injury Compensation Reform Act places a $250,000 upper limit on the amount of non-economic damages you may recover in a medical malpractice lawsuit. Non-economic damages compensate the plaintiff for the pain and suffering they've been forced to endure as a result of the malpractice, so they are a little vague in nature. More concrete costs are called economic damages, which are calculated by the financial burdens the plaintiff had to bear as the direct result of their injuries, such as medical bills or the loss of income from their inability to work.