Medical Malpractice: A Comprehensive Guide

Duty:

The doctor, health care provider, hospital, pharmacy, clinic, or other health care entity must have had a duty, contractual or otherwise, to provide care to that individual.  In other words, you cannot sue a doctor or other provider who is not or was not providing care to you.

Breach:

The doctor, health care provider, hospital, pharmacy, clinic, or other health care entity must breach or violate the applicable “standard of care” for providing treatment.  That doctor, health care provider, hospital, pharmacy, clinic, or other health care entity must have done something (or not done something) that a reasonable provider in similar circumstances would have done (or not done).

The “standard of care” is a legal term of art and is defined by California Jury Instruction 501 as “the level of skill, knowledge, and care in diagnosis and treatment that another reasonably careful doctor, hospital, etc. would use in the same or similar circumstances.”

This level of skill, knowledge, and care that another reasonably careful doctor, hospital, nurse, etc. would use in the same or similar circumstances is based on the testimony of the expert witnesses, who are required in medical malpractice cases.

Causation:

By breaching the “standard of care,” the provider must have directly caused the plaintiff damages. It is not enough for a health care provider to have simply done something wrong or unreasonable, or even blatantly unreasonable. That error must also cause the plaintiff a direct objective physical or emotional injury. If a plaintiff cannot show that the breach of the “standard of care” directly caused him/her injury, then there is no claim for medical malpractice. This is the single most contested issue in medical malpractice cases.  Countless doctors do things that breach the standard of care on a daily basis; the question is whether that lapse in judgment or error causes a plaintiff direct physical or emotional harm.

Under California law, the law regarding causation is something called the “substantial factor” test. A “substantial factor” in causing harm is a factor that a reasonable person would consider having contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]

Damages:

Along with proving that a health care provider breached the standard of care and that such breach caused a direct injury to the plaintiff, the injury must also be significant enough for there to be something to fight about.  If a plaintiff can prove the above three prongs, and if there is any appreciable or recognizable amount of damages, then a plaintiff has technically met the burden of proving a “prima facie” case.  However, if the damages are not large enough such that an attorney foresees a sizeable settlement or verdict, then there may be nothing to fight about.

It is important to note that medical malpractice cases are extremely expensive to litigate owing principally to the fact that expert witnesses are required to testify, or at least provide sworn declarations in these cases.

If, for example, a neurosurgeon is being sued, then a neurosurgeon will have to be hired by the plaintiff or the plaintiff’s attorney to testify against the defendant doctor.  The initial fee that some of these doctors charge just to review a case can be upwards of $10,000.  Therefore, medical malpractice attorneys must be very selective about the cases they take, even if a plaintiff can establish a “prima facie” case.

Failure to Diagnose:

A misdiagnosis is exactly that, an incorrect diagnosis that ignores or fails to correctly identify the problem. From delayed diagnosis to failing to diagnose a serious illness or disease altogether, these circumstances can lead to devastating results and may support a claim for medical malpractice.

Some of the most common misdiagnosis involve misreading of imaging studies by a radiologist,
including chest x-rays, CT scans, and MRIs.  Other misdiagnoses stem from a doctor’s failure to consider clinical symptoms, failing to order appropriate lab tests or other studies, and misinterpretation of lab tests resulting in progression of a disease, such as cancer.

Some common consequences stemming from a misdiagnosis include the need for what would have otherwise been unnecessary testing, medications or surgeries which can negatively and permanently impact the patient’s body. Failing to provide a correct diagnosis which leads to a delay in proper treatment can be particularly bad in the case of a cancer misdiagnosis.

Failure to Treat:

A failure to treat may include failing to perform certain tests, not monitoring reasonably known medical conditions, not referring patients to necessary specialists or failing to advise patients of available treatments. While not an exhaustive list, failing to treat within a timely matter can cause further injury or suffering to a patient.

Errors in Surgery:

Surgical errors occur when a surgeon operates in a way that is not consistent with the standard of care.  These cases usually involve a surgeon cutting or removing a structure that should not have been cut or removed during surgery.

Common examples of surgical errors include nerve injuries, anesthesia errors, an incision at the wrong site, operating on the wrong body part or performing an incorrect procedure on the wrong patient.

Errors in Radiology:

Radiology errors often involve the misreading of CT scans, MRIs, x-rays, sonograms, ultrasounds and other images. Radiology errors can be serious or even, deadly. If a radiologist fails to correctly read the image, the incorrect reading will influence a patient’s diagnosis and treatment plan.

Pharmaceutical:

Pharmaceutical errors (against pharmacies or pharmacists) are generally of two types: failing to dispense the correct medication or (2) failing to dispense the correct dosage of medication.

With the names of medications being so similar in the United States, it is more common than it should be for pharmacists to dispense an incorrect medication.  For example, the two drugs
Hydroxyzine and Hydralazine look very similar but are used to treat entirely different medical conditions.

Nursing Errors:

Nurses perform a necessary function in the hospital, namely to carry out doctors’ orders and keep doctors apprised of a patient’s condition.  When nurses fail to do these things, patients’ health is threatened.  Nurses are also responsible for taking a patient’s vital signs and managing their medications.

Hospital Injuries:

Hospitals must ensure that they are safe for patients.  Having unsafe premises, not hiring appropriate ersonnel, or not being adequately staffed are all issues that expose hospitals to liability for malpractice.

General damages are limited at $250,000:

This includes compensation for all pain and suffering experienced by a patient. Importantly, that figure does NOT include losses for lost earnings, out-of-pocket expenses, and the cost of any future medical care required as a result of the error committed.

Caps on attorney fees:

MICRA sets forth caps on attorney’s fees, which are unfair and probably unconstitutional, and for this reason, there are very few attorneys in California that are willing to take medical malpractice cases.