Defining Medical Malpractice in California
The first thing to understand is that medical malpractice is defined as “professional negligence”. It defines it as:
A negligent act, or an omission to act, by a healthcare provider.
The act (or omission) must have taken place during their service
Services are within the scope of the providers’ licenses
The act led to personal injury or death
Who Can You Sue for Medical Malpractice?
Anyone in the medical profession, such as doctors, physical therapists, nurses or pediatricians, amongst others. But you can also sue institutions such as clinics, laboratories (for medical trials) and even hospitals.
What Are Some Examples of Medical Malpractice?
Common examples include pain, suffering and financial impact due to:
- Failure to diagnose
- Delayed diagnosis
- Surgical error
- Medication error
How Long Can You Sue After The Incident?
The statute of limitations in medical malpractice cases is different in the state of California for minors and adults.
- For adults: three years after the date of the injury, or one year after the discovery of the injury.
- For minors: three years after the wrongful act, or before the child’s 8th birthday if they were less than 6 years old at the time of the injury.
Note that there are exceptions where you may claim compensation at a later date. For instance, if the healthcare provider is found to have committed fraud or intentionally concealed their wrongdoing.
Recovering foreign objects unintentionally left in a patient (during a surgical procedure) also removes the standard statute of limitation.
What Are Shared Liability Rules?
In some cases, the defendant will claim that the plaintiff is partly responsible for the injuries. This is common, for instance, when patients fail to fully follow a doctor’s instructions.
If this is found to be the case at trial, the district attorney will rely on a pure comparative negligence rule, which will deduct a percentage of damages based on your part of the responsibility. If you were going to be awarded $100,000 but are found to be 40% at fault, you will only receive $60,000.