You had gone in for a relatively minor surgery at Mercy General and at first everything seemed ok. Then, a few months later you started experiencing severe abdominal pain. It took several visits to diagnose the problem, but it turned out a surgical sponge had been accidentally left inside. Now you are scheduled for further treatment, have been placed on new medications and have had to miss a substantial amount of work. A few people have mentioned medical malpractice, but you are not sure what is involved in that type of case. To help you navigate, here is some basic information about medical malpractices cases in Sacramento.
For a general overview on the topic, check out FindLaw's section on Medical Malpractice. Then return here for information specific to Sactown.
What Is Medical Malpractice?
Medical malpractice is essentially negligence by a health care professional. Although we all have a duty to act reasonably to avoid harming others, doctors are held to a slightly higher standard of care. Basically, doctors are measured against other doctors and are expected to use the same degree of skill, care and diligence as another reasonably competent doctor under the circumstances. If a doctor breached this duty and that breach caused you injury, you may have a claim against him.
Types of Cases
Medical malpractice can arise in a variety of circumstances. Some of the common cases come from misdiagnosis, delayed treatment, surgical errors, prescription errors, and anesthesia miscalculations.
How Long Do I Have To File Suit
There are deadlines within which you must file your legal action or be barred forever from doing so. These are called statutes of limitations and vary by state and cause of action.
For medical malpractice suits in Sacramento and the rest of California, section 340.5 of the Code of Civil Procedure sets forth most of the relevant timelines. Basically, you must bring your action within 3 years after the date of injury or 1 year after you discover (or should have discovered) the injury, whichever comes first. Your suit cannot be brought more than 3 years after the date of injury except in certain specified circumstances (including when a foreign body such as a surgical instrument is left behind).
Bringing A Suit
Before you can file your action, California law requires that you give the defendant 90 days notice of your intention to file suit, including the legal basis of the claim and the type of loss sustained (specifying the injuries suffered).
Once you have provided the required notice, and the 90 days has elapsed, your suit will typically be brought in the civil division of the Sacramento Superior Court.
You will be the plaintiff and the doctor will generally be the defendant. However, depending on the circumstances, there are additional entities that can be named as defendants as well, such as hospitals or pharmaceutical companies.
Proving Your Suit
Generally, your medical malpractice action will focus on showing that your doctor was negligent. In order to establish medical negligence you must prove that:
Â -The doctor owed you a duty
-The doctor breached this duty
-The breach caused an injury
- You sustained an injury
You will typically attempt to show that the doctor breached his duty by bringing in medical experts in the same specialty as the doctor. The experts will testify regarding the accepted standards of medical care and how the doctor failed to meet these standards.
Check out this FindLaw article for a further discussion of Proving Fault in Medical Malpractice Cases.
Common Defenses To Medical Malpractice
One of the most common ways of defending against a malpractice claim is for the doctor to contend that you failed to establish negligence. He may present his own experts who argue that his actions were entirely in line with the actions any reasonable doctor in the same circumstance would have taken. Or he may argue that any injury you sustained was as a result of the initial problem and not a result of his negligence.
Another defense the doctor may offer is that you were partially to blame as you also acted negligently. If he is successful in establishing your negligence, under the pure comparative negligence system followed by Sacramento and the rest of California, your negligence will reduce (but not bar) your recovery. So if your damages were $100,000 and you were 50% at fault, you could still recover $50,000 (50%).
What Damages Are Available
You will typically seek damages (economic compensation) in the form of both economic ("special") damages and non-economic ("general") damages. Economic damages include things like medical costs and lost wages whereas non-economic damages include things like pain and suffering, disfigurement and inconvenience.
Note that the non-economic damages in Sacramento and the rest of the state are limited to $250,000.
Pursuing a medical malpractice action requires both medical and legal knowledge. For this reason it is recommended that you consult an experienced medical malpractice lawyer who can handle the case while you focus on getting better. For more information on how an attorney can help, as well as sample forms and checklists to get your case organized, check out the FindLaw section on Medical Malpractice Legal Help.
Contact a qualified attorney.