Medical
Malpractice Injury
Medical Malpractice Claims
arising from
injuries sustained as a result of visits to doctors or hospitals.
If
you are a victim of Medical Malpractice to your family or
know someone whom is you should know you have certain legal rights and must be very
selective of the Lawyer or Law Firm you chose to represent you. Our
service has had experience in the personal injury law field for the last
12 years. We Specialize in the following personal injury type claims.
Statutes
of Limitations
A medical malpractice action for injury or death must be brought within
one year from the date the claimant discovered the negligent act, but no
more than three years from the date of injury. Cal. Civ. Proc. Code
� 340.5 (West 1992). For retained foreign body cases, the statute is
tolled until the claimant discovers or should have discovered the injury. Ashworth
v. Memorial Hosp. of Long Beach, 206 Cal. App. 3d 1046, 254 Cal. Rptr.
104 (1988), rehearing denied, March 23, 1989.
Actions by or on behalf of minors must be brought within three years
from the date of the negligent act, unless the child is under the age of
six, in which case the action must be commenced within three years or
prior to the child's eighth birthday, whichever provides the longer time
period. Id. It is notable that the statutory period begins to run
for adults at the time of discovery but for minors at the time of the
negligent act. Although the California Supreme Court has yet to address
this anomaly, other courts have begun to read a discovery rule into the
provision for minors, on the theory that not to do so would deny minors
the equal protection of the law. Photias v. Doerfler, 45 Cal. App.
4th 1014, 53 Cal. Rptr. 2d 202 (1996); Katz v. Children's Hospital of
Orange County, 28 F.3d 1520 (9th Cir. 1994).
If a claimant is insane, a guardian can be appointed to permit the
claim to be brought within the required time limit. Cal. Civ. Proc. Code
� 372 (West Supp. 1998).
Contributory
or Comparative Negligence
California follows a pure comparative negligence rule: a claimant's
negligence reduces his recovery but will never bar recovery. Li v.
Yellow Cab Company, 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858
(1975). The plaintiff's negligence is compared to the combined negligence
of plaintiff and of all tortfeasors, whether or not joined as parties, to
determine the amount of the reduction. American Motorcycle Ass'n v.
Superior Court of Los Angeles County, 20 Cal. 3d 578, 578 P.2d 899,
146 Cal. Rptr. 182 (1978).
Joint
and Several Liability
A joint tortfeasor's liability may be joint, several, or joint and
several. Cal. Civ. Code � 1430 (West 1982). An obligation imposed on
several tortfeasors is presumed to be joint, with the following exception.
Cal. Civ. Code � 1431 (West Supp. 1998). In any action based on
principles of comparative fault, liability is several only with respect to
non-economic damages, including pain, suffering, inconvenience, mental
illness, emotional distress, loss of society and companionship, loss of
consortium, injury to reputation, and humiliation. In such cases, a
defendant's liability for non-economic damages is several only, and his
liability to the claimant is determined by reference to his percentage of
fault. Cal. Civ. Code � 1431.2 (West Supp. 1998).
Contribution
After adopting comparative negligence, the California Supreme Court in American
Motorcycle Ass'n v. Superior Court of Los Angeles County, 20 Cal. 3d
578, 578 P.2d 899, 146 Cal. Rptr. 182 (1978), adopted a comprehensive
system of dealing with allocation of fault. This differed somewhat from
that of California's contribution statutes, based on changes necessary to
accommodate comparative fault, and goes by the name partial equitable
indemnity. The principal holdings of the case were: (a) that joint and
several liability should be retained (now partially altered by Cal. Civ.
Code � 1431.2 (West Supp. 1998); (b) that the common law doctrine of
equitable indemnity would be modified to permit, in appropriate cases, a
right of partial indemnity on a comparative basis; (c) that this was not
precluded by the contribution statutes; (d) that a comparative negligence
defendant may file a cross-complaint against any person, whether already a
party to the action or not, from whom he seeks to obtain total or partial
indemnity; and (e) a good faith settlement relieves a tortfeasor from
liability for indemnity, just as for contribution. The central holding in American
Motorcycle Ass'n is incorporated into Cal. Civ. Code � 1432
(West Supp. 1998), which provides that a party who satisfies more than his
share of a claim may require a proportionate contribution from all the
parties joined with him.
A settling tortfeasor is free from all liability in contribution. Cal.
Civ. Proc. Code � 877(b) (West Supp. 1998). His share is not counted
when dividing the remaining fault among the other defendants to determine
how much of the judgment each is responsible for. Bracket v. State,
180 Cal. App. 3d 1171, 226 Cal. Rptr. 1 (1986) (NO. A027875); Lyly and
Sons Trucking Co. v. State, 147 Cal. App. 3d 353, 195 Cal. Rptr. 116
(1983). The right of contribution can be enforced , if necessary, in a
separate lawsuit. See Coca-Cola Bottling Co. v. Lucky Stores,
Inc., 11 Cal. App. 4th 1372, 14 Cal. Rptr. 2d 673 (1992).
Vicarious
Liability
California law holds a hospital liable for the acts of a physician if
he is an actual or ostensible agent. An ostensible agency is established
when a principal intentionally, or by want of ordinary care, causes a
third person to believe another is an agent. Jacoves v. United
Merchandising Corp., 9 Cal. App. 4th 88, 11 Cal. Rptr. 2d 468 (1992).
When a hospital holds out a physician as an employee, a patient may
reasonably assume that the physician is an employee of the hospital
without making an inquiry on the subject. Seneris v. Haas, 45 Cal.
2d 811, 291 P.2d 915 (1955).
Expert
Testimony
To establish a prima facie case of medical malpractice,
the claimant must present expert medical testimony verifying the claims of
negligence, unless the fact finder can infer negligence from the facts. Mann
v. Cracchiolo, 38 Cal. 3d 18, 694 P.2d 1134, 210 Cal. Rptr. 762
(1985).
Damage
Caps
California places a cap on non-economic damages for medical malpractice
cases. Cal. Civ. Code � 3333.2 (West 1997). Non-economic damages,
defined as compensation for pain, suffering, inconvenience, physical
impairment, disfigurement, and other non-pecuniary injury, are limited to
$250,000. Id. The cap applies whether the case is for injury or
death, and it allows only one $250,000 recovery in a wrongful death case. Yates
v. Pollock, 194 Cal. App. 3d 195, 239 Cal. Rptr. 383 (1987). There is
authority, however, for allowing separate caps for the patient and a
spouse claiming loss of consortium. Atkins v. Strayhorn, 223 Cal.
App. 3d 1380, 273 Cal. Rptr. 231 (1990). The cap on non-economic damages
has been held to be constitutional. Fein v. Permanente Medical Group,
38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 368 (1985) (also upholding
the modification of the collateral source rule).
Statutory
Cap on Attorneys' Fees
California limits the amount attorneys in a medical malpractice case
can collect pursuant to a contingent fee arrangement to 40 percent of the
first $50,000, 33 1/3 percent of the next $50,000, 25 percent of the next
$500,000, and 15 percent of any amount that exceeds $600,000. Cal. Bus.
& Prof. Code � 6146 (West 1990). This limit applies regardless
of whether the recovery is by settlement, arbitration, or judgment. Id.
If the contingent fee arrangement is based, in part, on an award of
periodic payments, the court is to place a total value on the payments
based upon the projected life expectancy of the claimant, and then
calculate the contingent fee percentages. Id.
Periodic
Payments
For medical malpractice cases that result in judgments of future
damages in excess of $50,000, either party may request the court to order
periodic payments. Cal. Civ. Proc. Code � 667.7 (West 1987). Upon
the death of the claimant, the court will modify any future damage award. Id.
However, damage awards for the loss of future earnings will not be reduced
by reason of the claimant's death. Id.
Collateral
Source Rule
California allows defendants in medical malpractice actions to offer
evidence of the claimant's receipt of payments in connection with the
injury in the form of social security benefits, workers' compensation
benefits, health insurance, accident insurance, or any other contract
providing for health care. Cal. Civ. Code � 3333.1 (West 1997). The
claimant may then offer evidence of any amounts paid or contributed to
secure the right to the collateral benefits. Id. No provider of
benefits can recover them from the plaintiff or by subrogation from a
defendant. Id.
Pre-Judgment
Interest
California allows a jury, at its discretion, to award pre-judgment
interest. Cal. Civ. Code � 3288 (West 1997).
Patient
Compensation Funds and Physician Insurance
California does not have a patient compensation fund or a program of
state-sponsored liability insurance for physicians.
Immunities
As a general matter, public entities, which include the state, its
counties, cities, and other political subdivisions, are immune from
liability. Cal. Gov't Code � 815 (West Supp. 1998). However, public
entities may be held liable for their employees' tortious acts. Cal. Gov't
Code � 815.2 (West 1995). The government entity has a duty to defend
and indemnify its employees. Cal. Gov't Code � 825 (West 1995).
Likewise, a public entity is liable for any injury proximately caused by a
tortious act of an independent contractor of the public entity to the same
extent that the public entity would be subject to liability if it were a
private person. Cal. Gov't Code � 815.4 (West 1995).
Except as provided by specific statute, a public entity is immune from
liability for punitive or exemplary damages. Cal. Gov't Code � 818
(West 1995). However, under certain conditions, the public entity, other
than the state, is authorized to pay punitive or exemplary damages on
behalf of the employee. Cal. Gov't Code � 825 (West Supp. 1998).
Public entities may insure themselves against all tort liability. Cal.
Gov't Code � 990 (West 1995). The purchase of insurance will not
alter the rules applicable to punitive damage awards. Id.
California's General Immunities Act contains a special section for
hospital and public health activities. California waives its immunity from
liability for injury inflicted on a patient of a mental institution by
another patient. Cal. Gov't Code � 854.8 (West 1995). Nothing in the
code exonerates public employees from liability for injuries caused by
their negligence, wrongful acts, or omissions. Id. The public
entity has the discretion to pay any judgment against employees; however,
the public entity must pay judgments against public employees lawfully
engaged in the healing arts and acting within the scope of employment. Id.
Public entities which maintain medical facilities regulated by the
State Department of Health Services, Social Services, Developmental
Services, or Mental Health are liable for injuries caused by a failure to
provide adequate equipment, personnel, or facilities. Cal. Gov't Code
� 855 (West 1995).
Public entities and their employees are not liable for injury resulting
from any discretionary decision to perform an act to promote the public
health and prevent the spread of disease. Cal. Gov't Code � 855.4
(West 1995). Except during the course of treatment, public entities or
their employees are not liable for injury caused by the failure to make a
physical examination or to find a disease which would constitute a hazard
to others. Cal. Gov't Code � 855.6 (West 1995). Public employees are
also exempt from liability for failing to diagnose that a person is
afflicted with a mental illness or addiction. Cal. Gov't Code � 855.8
(West 1995). Public entities are not liable for injuries caused by an
individual who escaped from a mental ward, unless a governmental employee
acted on the basis of fraud or malice. Cal. Gov't Code � 856.2 (West
1995). Presumably, in all other areas where the statute is silent as to
the waiver of immunity, a governmental entity operating a health facility
is immune.
Arbitration
California allows health care providers and their patients to contract
for the arbitration of disputes. Cal. Civ. Proc. Code � 1295 (West
1982). However, absent the parties' agreement, California does not require
that claims of medical malpractice be arbitrated prior to litigation.
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