Medical Malpractice

If you are the victim of medical malpractice you may be entitled to receive compensation for all injuries, both to pay subsequent medical bills and other costs, caused by the medical malpractice and for any pain, suffering and emotional distress you may have experienced as a result of the malpractice.

Medical malpractice is negligence committed by a medical professional. While many accidents occur in hospitals and in the practice of medicine in general, some of them could have been avoided. When a physician makes a preventable error that results in injury, the patient may file a medical malpractice suit for damages. 

A claim for medical malpractice is similar to a claim for regular negligence except the person who committed the negligence, or who 'breached the duty owed to you', was the medical professional or medical facility that provided medical treatment to you.


Statutes of Limitations

In California, pursuant to the Ca. Code of Civil Procedure section 340.5, 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, whichever comes first. For retained foreign body cases, i.e., if a surgeon negligently leaves some foreign thing or substance inside your body after surgery, the statute is tolled until the injured patient discovers or should have discovered the injury. (See Ashworth v. Memorial Hosp. of Long Beach, 206 Cal. App. 3d 1046, (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, i.e, grant minors the right to still bring suit even though three years have elapsed since the date of a negligent act if they have not yet discovered the negligence on the theory that not to do so would deny minors the equal protection of the law.

If a claimant is insane, a guardian can be appointed to permit the claim to be brought within the required time limit.



Duty of Care

The duty of care for a physician or medical professional is a little different from that for the average person who, as explained in the negligence section, basically owes a duty to every other person. A physician must owe a duty of care to patients before his or her competency in performing that duty can be judged. In U. S. jurisprudence, a person has no affirmative duty to assist injured individuals in the absence of a special relationship with them (such as doctor-patient, attorney-client, guardian-ward, etc.). However, once a doctor voluntarily decides to assist others or come to their aid, he or she becomes liable for any injury that results from any negligence during that assistance. Once the requisite doctor-patient relationship is established, the doctor owes to the patient the duty of care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician under the same or similar circumstances.


Contributory or Comparative Negligence

'Negligence law' in California follows a 'pure comparative negligence' rule. This mean that a claimant’s negligence reduces his recovery but will never bar recovery. (See Li v. Yellow Cab Company, 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975)). The claimant's, or plaintiff’s) negligence is compared to the combined negligence of all negligent persons, whether or not joined as parties, to determine the amount of the reduction. (See American Motorcycle Ass’n v. Superior Court of Los Angeles County, 20 Cal. 3d 578, 578 P.2d 899, 146 Cal. Rptr. 182 (1978)). Since California is a pure comparative negligence state, a person claiming negligence can recover for their injuries and harm even if they are more at fault than any of the other negligent persons.

For example, if you have an auto accident and you are 75% at fault, and your damages are worth $10,000 you will still receive $2,500 or 25% of your damages, (100% = the complete loss; you were 75% at fault, 100% (-) you 75% at fault = 25%). 


Joint and Several Liability

Liability in Negligence Law when there are 'joint tortfeasors', that is, more than one tortfeasor, ('civil wrongdoer'), acting together to negligently cause an injury may be joint, several, or joint and several. This means that a group of negligent actors', here medical professionals', legal responsibility or obligation to pay damages to an injured person may be 'joint', or shared with the other negligent actors so that each may be responsible for the entire damages award; it may be 'several', i.e., where each negligent actor is only responsible for their share of the damages award, usually with each paying their share based on their degree of fault; or it may be 'joint and several', i.e. where the injured party may collect the entire damages award from any one tortfeasor as if the legal responsibility or obligation to pay damage is 'joint', but the paying wrongdoer may then sue the other joint wrongdoers so as to recoup any amount he paid that was in fact their responsibility based on degree of fault. In California, joint tortfeasors, whether in the area of medical malpractice or otherwise, are usually held to a joint and several liability standard.

However, an obligation imposed on numerous tortfeasors is presumed to be joint, with the following exception. In any action based on principles of 'comparative fault', (defined as where a tortfeasor is only responsible for the percentage of damages caused by their negligence, or that is their fault, as compared to the fault of the other joint tortfeasors), 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. (Also see 'Contributory or Comparative Negligence' section above).



After adopting comparative negligence, the California Supreme Court ruled in the landmark case, American Motorcycle Assn v. Superior Court of Los Angeles County, 20 Cal. 3d 578, 578 (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 (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 the American Motorcycle Assn case is incorporated into Cal. Civil Code § 1432 (West Supp. 1998), which provides that a party who satisfies more than his share of a claim may require a proportionate contribution, or partial equitable indemnity, from all the parties joined with him.

A settling tortfeasor is free from all liability in contribution. (See Cal. Civil Proc. Code § 877(b). Further, 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. (See cases, Bracket v. State, 180 Cal. App. 3d 1171, 226 (1986) (NO. A027875); Lyly and Sons Trucking Co. v. State, 147 Cal. App. 3d 353, 195 (1983)). In addition, the right of contribution can be enforced , if necessary, in a separate lawsuit. (See case, Coca-Cola Bottling Co. v. Lucky Stores, Inc., 11 Cal. App. 4th 1372, (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, for example a hospital, intentionally, or by want of ordinary care, causes a third person (i.e., a patient) to believe another, for example a physician, is an agent. (See case, Jacoves v. United Merchandising Corp., 9 Cal. App. 4th 88, 11 (1992)). Practically speaking, 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. Thus, in this example, the hospital is liable for the physician's negligent, medical malpractice.


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.


Statutory Cap on Damages 

California places a cap on non-economic damages for medical malpractice cases. (See Cal. Civil Code § 3333.2) Non-economic damages, defined as compensation for pain, suffering, inconvenience, physical impairment, disfigurement and other non-pecuniary, (non-monetary), injury, is limited to $250,000. The cap applies whether the case is for injury or death, and it allows only one $250,000 recovery in a wrongful death case. (See case, Yates v. Pollack, 194 Cal. app. 3d 195) There is authority, however, for allowing separate caps for a patient and spouse claiming loss of consortium. (See case Atkins v. Strayhorn, 223 Cal. App. 3d 1380) The cap on non-economic damages has been held to be constitutional. (See case Fein v. Permanente, 38 Cal. 3d 137, a case that also upholds the modification of the collateral source rule. See section on the 'Collateral Source Rule' below) 

Statutory Cap on Attorney 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.

This limit applies regardless of whether the recovery is by settlement, arbitration, or judgment. 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.

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. Civil Proc. Code § 667.7. Upon the death of the claimant, the court will modify any future damage award. However, damage awards for the loss of future earnings will not be reduced by reason of the claimant’s death.

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. The claimant may then offer evidence of any amounts paid or contributed to secure the right to the collateral benefits. No provider of benefits can recover them from the plaintiff or by subrogation from a defendant.


Pre-Judgment Interest. California allows a jury, at its discretion, to award pre-judgment interest.


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. However, public entities may be held liable for their employees’ tortious acts. The government entity has a duty to defend and indemnify its employees. 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, (the public entity), were a private person. Except as provided by specific statute, a public entity is immune from liability for punitive or exemplary damages. However, under certain conditions, the public entity, other than the state, is authorized to pay punitive or exemplary damages on behalf of the employee. Public entities may insure themselves against all tort liability.

The purchase of insurance will not alter the rules applicable to punitive damage awards. 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. Nothing in the code exonerates public employees from liability for injuries caused by their negligence, wrongful acts, or omissions. 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. 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. 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. 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.


Public employees are also exempt from liability for failing to diagnose that a person is afflicted with a mental illness or addiction. 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. 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.



California allows health care providers and their patients to contract for the arbitration of disputes. Cal. Civil Proc. Code § 1295 However, absent the parties’ agreement, California does not require that claims of medical malpractice be arbitrated prior to litigation.


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