Your Orange County Medical Malpractice Case: The Basics

Grandma's hip replacement at the UC Irvine Medical Center immobilized her and caused a ton of pain, but at least she'll be able to walk again. Later, however, the doctor frowns at X-rays during a routine checkup. It turns out that the surgeon left a tiny plastic tube inside Grandma's leg and it is causing a bacterial infection. Another surgery later, Grandma's recovering again but needs 24-hour nursing supervision for more than a month. Who is going to pay for all this unnecessary medical treatment? Can Grandma recover for the extra suffering she was forced to endure? You need plain English answers, not lawyer-speak, which is why FindLaw has created this informational guide to Orange County medical malpractice cases.

Medical Negligence

Medical malpractice liability usually arises from medical negligence, which can be a doctor's failure to diagnose the patient correctly, unreasonable delay in treatment, or improper treatment of the patient. All healthcare professionals' conduct must conform to a general standard of care. Legally, this 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 that 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 often essential.

Informed Consent

Another way that malpractice liability arises is by a provider's failure to meet their obligations in regards to 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:

• Disclosure informing the patient all the risks, benefits and alternatives of the treatment;
• Comprehension of the disclosure by the patient, and;
• Voluntary waiver or "release" executed by the patient.

If these elements were not met you may have a civil 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 not keep sanitary conditions, fail to screen employees for proper credentials, or improperly discharge a patient.

Last, but not least, some patients may have a products liability lawsuit against the pharmaceutical company that created a medicine with unreasonably dangerous side effects they were not made aware of, or against the company that designed or manufactured a defective medical device.

Time Limits

The California statute of limitations places a firm 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 (prohibited) from recovery.

• You have one year from the day you discover, or reasonably should have discovered, the injury;
• 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.

Initiating a Lawsuit

Filing a lawsuit is as simple (or complicated) 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. Note that California has a specific rule that requires you to give medical malpractice defendants 90 days notice of your intention to pursue a lawsuit before you can file.

You can file your lawsuit at the Central Justice Center in Santa Ana at 700 Civic Center Dr. West, or one of the branch courthouses in Orange County. Once it is filed, you need to mail copies of the complaint, a summons and civil case cover sheet to every defendant. You should use certified return receipt mail so you can later prove that the defendant was actually served with the papers, or just use a professional process server.

If you don't want to handle all this personally, you may want to consider scheduling a free consultation with an experienced personal injury attorney. Plaintiff side attorneys usually work on a contingency fee basis, which means they take a certain percent of your eventual recovery. This means you don't pay them until and unless they win. Not surprisingly, they have a high 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.

Damages

Concrete financial costs are called economic damages. These are the sum total of the 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. In fact, 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.

If you have specific questions about your injuries or case, you may want to talk to an attorney specializing in medical malpractice cases. If you need more information on the law in general, visit FindLaw's section on medical malpractice law or learn about Orange County personal injury lawsuits.