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Your Oakland Medical Malpractice Case: The Basics

The birth of your first child is supposed to be the happiest moment of your life, but something went wrong with little Timmy. You don't know for sure, but you have a strong suspicion that a mistake was made in the delivery room. All you're asking for is fair compensation for the extra costs you've now been burdened with, but the hospital won't even return your calls. Sometimes the only answer might be a lawsuit, so FindLaw has prepared some general information about Oakland medical malpractice cases.

Time Limits

The California statute of limitations places a deadline for when plaintiffs can 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've discovered, the injury. However, all malpractice lawsuits must be initiated within three years regardless of the date of discovery, except for cases where a foreign object was left in the plaintiff's body.

Alternatively, if your lawsuit is based on a lack of informed consent, the proper claim is battery. Battery lawsuits have a two-year time limit.

Medical Negligence

Medical malpractice liability usually comes in the form of medical negligence, which can be a doctor's failure to diagnose the patient correctly, an unreasonable delay in treatment, or improperly treating the patient. All healthcare professionals' conduct must conform to a general standard of care, which is the care that would be provided by a reasonably competent health care professional, with a similar background and in the same medical community, under the circumstances that led to the alleged malpractice.

To succeed in a medical negligence lawsuit you must show that the health care professional's conduct fell below this generally accepted standard of medical care, and this failure caused your injuries. Since most judges or jurors have little to no knowledge of standard medical procedure, an expert witness who can articulate the applicable standard and point out the doctor's shortcomings is all but essential to victory.

Informed Consent

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;
  • comprehension of the disclosure by the patient, and;
  • a voluntary (non-coerced) waiver or "release" executed by the patient.

If these elements were not met you may have a claim for battery, which is an intentional, nonconsensual harmful or offensive touching.

Picking Defendants

You can sue the individual whose negligent conduct caused your injuries and the hospital that employs that person under the doctrine of "respondeat superior," which provides that an employer is responsible for the tortious action of an employee acting within the scope of his or her employment.

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 products liability lawsuit against the pharmaceutical company that created a medicine with unreasonably dangerous side effects that you were not made aware of, or against the company that designed or manufactured a defective medical device.

Initiating a Lawsuit

Filing a lawsuit is as simple as drafting a complaint, which is a brief summary of the alleged malpractice, the injuries, the names of the defendants, and a request for compensation. California has a specific rule that requires the plaintiff to give medical malpractice defendants 90 days notice of their intention to pursuing a lawsuit before they can file.

The lawsuit can be filed at the Rene Davidson Courthouse located at 1225 Fallon Street, or one of the many branch courthouses in Oakland. Once it is filed, the plaintiff must mail copies of the complaint, a summons and civil case cover sheet to every defendant. Using certified return receipt mail is often a good idea in case it is needed later to prove that the defendant was actually served with the papers. Alternatively, a professional process server can be used.

Last, but certainly not least, an experienced medical malpractice attorney can help with these and the numerous other technical requirements. Many offer free consultations, too. Plaintiff side attorneys usually work on a contingency fee basis, which means they take a certain percent of any eventual recovery. This means they don't get paid until they win and they have every incentive to maximize a 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.


Concrete financial costs are called economic damages. These are the sum total of unfair monetary burdens you've borne as a result of the malpractice, and typically include medical bills and loss of income from inability to work.

In contrast, non-economic damages compensate you for the pain and suffering you've been forced to endure as a result of the malpractice. These are inherently subjective and can vary widely from case to case, so the California legislature has implemented a $250,000 damage cap on non-economic damages in medical malpractice lawsuits in the form of the Medical Injury Compensation Reform Act.

Visit FindLaw's section on medical malpractice law for more general information, or learn about Oakland personal injury lawsuits.

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