Medical Malpractice IN CALIFORNIA

MICRA

Primary in any medical malpractice case in California is the Medical Injury Compensation Reform Act ("MICRA"), special legislation passed in July 1975 for the express purpose of discouraging lawsuits against hospitals and health care practitioners.

The body of MICRA is contained in the following California statutes:

Civil Code Section 3333.2
Limit of $250,000 for general damages (pain and suffering)

Code of Civil Procedure 667.7
Periodic payment of special damages (the costs of medical care, special needs, and lost earnings)

Bus & Professions Code 6146
Limits on attorneys fees

Code of Civil Procedure 364
Pre-case filing requirement

Code of Civil Procedure 340.5
Limited time deadlines by which to file a medical malpractice lawsuit

Civil Code Section 3333.1
The use of government agencies and plaintiff's insurance to pay for medical mistakes

Code of Civil Procedure 425.13
Prerequisites to making a claim for punitive damages

These statutes are accessible at the hyper-links above, and at the home page submenu for "MICRA"

ELEMENTS OF A CAUSE OF ACTION FOR MEDICAL MALPRACTICE

Unlike most tort actions where the "wrong" someone does to cause harm is within common knowledge, physician and nurse experts are usually required to bring a medical malpractice case to trial, and to explain at trial the standards of care to be expected by healthcare practitioners to meet a patient's medical care needs:

"The elements of a cause of action for medical malpractice are:


(1)
a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise;

(2)
a breach of the duty;

(3)
a proximate causal connection between the negligent conduct and the injury; and

(4)
resulting loss or damage.

Because the standard of care in a medical malpractice case is a matter 'peculiarly within the knowledge of experts,' expert testimony is required to 'prove or disprove that the defendant performed in accordance with the standard prevailing of care' unless the negligence is obvious to a layperson." (Johnson v. Superior Court (Rosenthal) (2006) 143 Cal.App.4th 297 at 304, 49 Cal.Rptr.3d 52, at 57)

With the high costs of medical experts, and the high costs of preparing a case for trial (court filing fees, deposition fees, medical records), many meritorious medical malpractice cases cannot be pursued. After the deduction of these costs from a trial verdict, little may be left to compensate the patient for his/her lifelong care needs, or to pay attorneys fees for obtaining a recovery.

For the medical malpractice cases that are pursued, it is important to pursue these cases with the best resources possible, yet efficiently, so that a meaningful recovery can be achieved to meet the needs of a patient.

ADDITIONAL STATUTES

Additional statutes particular to medical malpractice actions in California include:

Health & Safety Code 1279.1
General, Psychiatric and Special hospitals must report "adverse events" to the patient and to the California Department of Public Health

Health & Safety Code 1799.110(c)
Only experienced emergency room physicians can testify to standards of patient care expected by doctors in the emergency room

PATIENT RIGHTS

Few "rights" exist for patients in medical malpractice cases. One of these is a patient's right to access medical records for reviewing and copying.

CALIFORNIA MEDICAL BOARD

Where a lawsuit is impractical, yet the conduct of a hospital, doctor, nurse, therapist or other healthcare practitioner needlessly endangers others, a complaint to the Medical Board of California can be made. For egregious conduct, the Medical Board might suspend a doctor's license until the completion of remedial courses.

For questions or comments, you are invited to contact the HIDALGO law firm.


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MEDICAL MALPRACTICE
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