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Medical Malpractice: A Comprehensive Guide

Medical negligence, otherwise known as medical malpractice, is the third leading cause of death in the United States.

In fact, a report published in the British Medical Journal suggests that only heart disease and cancer kill more people on a yearly basis than medical negligence.  More specifically, experts believe that medical errors kill over 250,000 people every year.  For those who do survive these errors, those individuals often suffer lasting damage and considerable emotional and/or physical trauma.

In this guide, we will discuss the circumstances under which you, or a loved one, may file a claim for medical malpractice, the time limits for filing a medical malpractice action, and the compensation that one can expect from filing a claim. We will also discuss the most common types of medical malpractice, and some of the difficulties in litigating these types of claims.

Chapter 1: What is Medical Malpractice?

Medical malpractice is the failure of a doctor or other health care provider to conduct himself/herself in a manner that is consistent with the applicable standard of care, and which causes injury to a plaintiff.

How to Prove Medical Malpractice

In order to prove a claim for medical malpractice, or establish what is called a “prima facie” case for malpractice, a plaintiff must prove four things:


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.


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.


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.]


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.

Chapter 2: Types of Medical Malpractice Cases

Medical malpractice comes in nearly infinite forms, and relates to errors in every medical specialty, including each of the following:

Medical malpractice also encompasses claims against pharmacies, hospitals, medical clinics, nurses, and laboratories.

Most Common Forms of Medical Malpractice

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 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.

Chapter 3: Starting a Medical Malpractice Case

Hiring a Medical Malpractice Lawyer

The first step in starting a medical malpractice case is the assembly of the medical records of the person who has been injured.

These may include:

Other materials that may impact a medical malpractice lawyer’s understanding of what happened to the injured person.

Once the medical records are assembled, those records can be sent to a qualified malpractice attorney who can review those records, and/or send those records out to an expert in the field who can determine whether or not there is a viable claim, as described above.
If it is determined by the medical malpractice attorney or the expert that there is a viable claim, the lawyer will generally bring the client in for a meeting to sign a retainer agreement which lays out the terms of the representation.

In California, most (but not all) medical malpractice cases are taken on a contingency basis, where the attorney is only compensated if there is a settlement or verdict at trial.  However, from time to time, a medical malpractice claim may not be as clean as an attorney would like, or might be extremely expensive based on the number or type of experts that may be required.

Accordingly, there are generally four types of financial arrangements that apply to medical malpractice cases:

Hourly billing: in this circumstance, the attorney bills the client on an hourly basis for all of the time he or she spends on the case. This arrangement tends to be extremely expensive and is usually reserved for cases that have questionable merit, or where the attorney for whatever reason does have a high enough index of suspicion that he/she will prevail on the claim.

Straight contingency: in this type of arrangement, the attorney fronts all of the costs for the case and is only compensated at the conclusion of the case.  This type of arrangement is utilized most frequently when the attorney believes there is a very strong likelihood that he/she will prevail in the action.

Blended rate: this financial arrangement is utilized when the attorney has mixed feelings about the case; where he/she is willing to take some risk, but not the entire risk, that the case will settle, or he/she will prevail.

Contingency plus costs: in this type of arrangement, the attorney is willing to risk their time by assisting in the case without compensation until and unless there is a settlement or verdict, but still has some doubts about the case and/or is concerned about the costs associated with litigating the claim, so he/she will ask the client to pay for the hard out-of-pocket costs associated with the lawsuit.

Chapter 4: Filing a Medical Malpractice Lawsuit

What to Expect During a Medical Malpractice Case?

Very few people who are not lawyers understand the difference between “going to court” and “settling out of court.”  “Going to court” is actually not a legal term, but in hearing that term repeatedly over the years, it is clear that most people believe that term to mean “going to trial,” which is very rare in medical malpractice cases.

On the flip side, very few medical malpractice cases settle before a complaint is filed in the court system.  For those few cases that do settle before a court filing is made, those cases are referred to as “pre-litigation” settlements.

The vast majority, over 95% or more medical malpractice cases, are won or lost between the above two guideposts: they require “going to court” (which simply means that a formal complaint must be filed in the court system) but settle before “going to trial”.  Of those cases, almost all of them will settle or be dismissed without the client ever seeing a court or stepping foot inside a courthouse.

In the very small percentage of cases that are not settled “pre-litigation” and are not settled after filing a lawsuit, the case will actually “go to trial.”  Cases will only go to trial when the two sides cannot come to an agreement regarding liability (i.e., standard of care and causation) or damages and they require a jury to evaluate both sides and render a final verdict whether the health care provider committed malpractice.


    What is the difference between medical negligence and medical malpractice?


    These terms mean the same thing. Most people refer to these events as malpractice, however, negligence is the legal term used.


    How common is medical malpractice
    in the U.S.?


    Medical malpractice is the 3rd leading
    cause of death in the U.S.


    Will my case go to trial?


    93% of all medical malpractice meet are resolved outside the courtroom.


    Do all medical errors constitute
    medical malpractice?


    No, medical malpractice means that you must establish the medical professional failed to act in accordance with standards set by the medical community.

Obstacles to Winning a Medical Malpractice Case

Most medical malpractice cases that go to trial are won by the defendant (i.e., the doctor or other health care provider).  In fact, recent studies have shown that over 80% of medical malpractice cases that proceed all the way to trial are decided in favor of the defendants.That statistic, coupled with the significant expense of taking a medical malpractice case to trial, as well as the caps on recoverable damages in California, make these cases very difficult to take to trial.  In addition, if a plaintiff does prevail, defendants will frequently appeal the verdict, making these cases even more difficult to take to trial.

Chapter 5: Medical Malpractice Laws in California

In California, medical malpractice cases are governed by the Medical Injury Compensation Reform Act (MICRA) law, for which many treatises have been written.

The MICRA law is extensive, however, the pertinent parts of the law are two-fold:

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.

Medical malpractice is the 3rd leading cause of death in the United States.

In 2018. California had the third highest medical malpractice payout of $269.2 million.

Medical Injury Compensation Reform Act (MICRA), places a $250,000 cap on non-economic damages in medical malpractice cases.

9.5% of medical malpractice claims against U.S. healthcare professionals occur in California.

80% of medical malpractice cases that proceed all the way to trial are decided in favor of the defendants.

California Statute of Limitations for Medical Malpractice

Many states set forth very narrow timelines for filing a medical malpractice claim and, in most cases, it’s important to bring a case as soon as possible.

In California, a claim of injury or death against a health care provider for alleged medical negligence must be filed within three years after the date of injury, or one year after a plaintiff discovers or has a reasonable suspicion that a health care provider committed malpractice– whichever comes first.

In some cases, the statute of limitations may be extended if:

For minors under the age of six, actions must be presented within three years from the date of injury or before the child’s eighth birthday – whichever allows for the longer period of time.

Get Help With Your Medical Malpractice Case

The Trial Law Offices of Bradley I. Kramer, M.D., Esq are ready to take on your case.
Talk to an experienced medical malpractice attorney in Los Angeles today at 323-746-0087.

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