Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals may obtain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.

A medical malpractice lawsuit may be brought against a physician, nurse, pharmacist, dentist, psychiatrist, anesthesiologist, psychotherapist, obstetrician or other medical professional for improper or negligent treatment; and an injured party can ask for damages for both physical effects and emotional damages. Often, it will be necessary to name a medical facility such as a hospital or doctor’s office as a defendant.

The reasons for filing a medical malpractice lawsuit can include:

• a particular action taken by the medical professional
• lack of action taken by a medical professional
• prescribing improper medication
• misdiagnosis or failure to diagnose a particular disease or medical condition
• a surgical error
• wrongful death
   

Sometimes the percentage of negligence in a case will be divided among several named parties; additionally, there could also be negligence on the part of the plaintiff/claimant that will lower the potential financial recovery.

In medical malpractice lawsuits, the parties, if found at fault, will generally have both joint and several liability, which means that each defendant is individually liable for the entire judgment; but if one defendant is unable to pay, then the other one must pay the entire judgment.

The California legislature enacted the Medical Injury Compensation Reform Act (MICRA) in 1975 with the intention of lowering medical malpractice liability insurance premiums for health care providers. Prior to this statute, it was not uncommon for juries to award multimillion-dollar verdicts, especially in cases with serious injuries or death. MICRA has been challenged with cases brought up on appeal before the California Court of Appeal and the California Supreme Court, but most of the legislation remains intact.

Provisions of the Medical Injury Compensation Reform Act include:

• A cap on the recovery of noneconomic damages limited to $250,000.
• The payment can be made over a period of time if ordered by the Court.
• The allowed attorney fees are capped based on the amount of the award, and the percentages decrease as the award increases. Maximums allowed are:
  • 40 percent of the first $50,000 awarded
  • 33 1/3 percent of the next $50,000 awarded
  • 25 percent of the next $500,000
  • 15 percent of any amount that exceeds $6,000
• Time limits for filing cases were shortened.
• Requires the use of binding arbitration for some situations.
   

Since California enacted MICRA, several other states have instituted similar laws with the hope of keeping health care programs financially solvent by both lowering the cost of health care services and increasing the availability of these services. This is accomplished by preventing escalating costs for malpractice insurance and avoiding extreme jury awards. Health care providers are therefore generally in favor of the Medical Injury Compensation Reform Act.

Those who oppose this type of legislation, including malpractice attorneys and their clients, say these programs often curtail justice and appropriate awards for the victims in malpractice cases. Those most likely to suffer are the poor and elderly whose compensation based on economic issues is extremely curtailed. Additionally, those opposing MICRA dispute the limits on noneconomic damages, i.e., the pain and suffering caused by death of a family member being limited to $250,000.

In California, the medical malpractice statute of limitations means that a malpractice suit involving injury or death must be instituted in the following timeframes:

• One year from the date the claimant discovered the negligent act, but
• No more than three years from the date of injury, or
• If a minor under the age of six, within three years of the date of negligence or before the child’s eighth birthday, whichever period is greater
• The statute of limitations on wrongful death is generally two years from the date of death.
• When a hospital is owned by a county or local administrative agency, a direct claim must be filed with the agency within six months of the birth, death or negligent action before any lawsuit can be filed. Failure to take this action will result in dismissal of any lawsuit.

In California, health care providers and their patients may sign agreements to arbitrate medical malpractice disputes, which means they will attempt to settle differences without litigation. Absent this type of agreement, a party may directly file a medical malpractice lawsuit, although there are exceptions to medical malpractice litigation under the statute of limitations.

Some hospitals or insurance policies require arbitration; and, if you carry that insurance, then you must submit to arbitration to settle a malpractice issue. Cases submitting to arbitration are generally less time consuming and will settle the issues faster than filing a medical malpractice lawsuit. Often damages awarded will be less than what a jury would award, but the tradeoff will be that the case will probably settle sooner and will not cost so much to prove.

There are different types of legal malpractice, and in some cases you may prefer not to pursue litigation. For instance, if you have difficulty in communicating with your attorney — i.e., the attorney is not returning your calls, the attorney is not keeping you apprised of the status of your case, the attorney billed you incorrectly, or the attorney is no longer representing you but refuses to return your paperwork — there are alternative remedies that reside within legal malpractice law.

If you believe your attorney has inappropriately charged you too much for services, it is best to talk to your attorney and to try to resolve the problem directly with them. After all, they should be familiar with legal malpractice law as well as the consequences. When approaching your lawyer, you may ask for a detailed billing if one has not been provided to you. Perhaps your case was more complicated than originally anticipated and required the attorney to put in extra hours of work. Professional services, whether from a doctor, dentist or lawyer, are expensive. Most people never see their doctor or dentist bills because they are covered by insurance, but most people must pay their attorney directly. So don’t be shocked; educate yourself about legal malpractice and the laws, and get a good perspective on what the costs will be when you hire an attorney.

If you believe your attorney is guilty of legal malpractice, you can file a complaint against that attorney through the State Bar of California. The California Supreme Court and state legislature impose ethical standards on all lawyers practicing law in the state of California as outlined in the Rules of Professional Conduct and/or the State Bar Act. If a complaint against an attorney is filed showing they do not meet these standards, then the State Bar may discipline the attorney for legal malpractice.

According to the State Bar of California, and depending on the seriousness of the malpractice offense, an attorney may be given a warning; put on probation; suspended from practicing law for a period of time; or disbarred (prohibited from practicing law in California). These punishments are limited to issues of unethical conduct.

If you want to make a formal complaint against your attorney, contact the State Bar at 1-800 843-9053 (toll free in California) or 213-765-1000 (from outside California). You may also visit the State Bar website at www.calbar.ca.gov. Complete and detailed information is available on the hotline to help you decide if filing a complaint with the State Bar is an appropriate course of action for your legal malpractice issue. The complaint form should be mailed to the State Bar at the address indicated. Be sure to follow the instructions. There is no fee to file a complaint against an attorney.

The following are some possible issues where an attorney may perform their duties below a standard of care that is usual for the profession, which may result in a malpractice case and the assignment of a legal malpractice attorney:

• The attorney committed fraud or theft.
• The attorney breached his/her fiduciary duties.
• The attorney failed to file a case before the statute of limitations expired.
• The attorney knew about and failed to resolve conflicts of interest.
• The attorney did not properly research or defend a case.
• The attorney did not show up in court and/or failed to meet court deadlines.
• The attorney commingled his personal funds with funds in his/her client’s trust fund.
• The attorney settled a case without consent of the client.
• The attorney breached his/her duty of confidentiality to the client.
• The attorney stopped working on the case but never told the client.
   

Although this may not be a complete list, these are some of the most likely reasons to consult with a legal malpractice attorney to determine if there is a cause of action for malpractice.