Contact Us

DISCLAIMER:

By sending this email information to Kershaw, Cook & Talley, an attorney-client relationship is not created between you and Kershaw, Cook & Talley, or any other party. An attorney-client relationship does not exist until a formal “Attorney Retainer/Fee Agreement” has been signed by all parties.

What is a Medical Malpractice Claim?

Comments Off on What is a Medical Malpractice Claim?

Medics
At their core, medical malpractice claims are a type of negligence, to which general principles of negligence apply. The basic elements of a tort — duty, breach, causation and damages — are the same. Below are a few considerations of each element to keep in mind when deciding whether your medical mishap may rise to the level of medical malpractice:

  • Duty: in an action for medical malpractice, the defendant’s conduct is assessed by using a professional standard of care rather than the general standard of reasonableness employed in cases involving ordinary negligence.[1] California jury instructions for health care professionals describe medical negligence as:

[A/An] [insert type of medical practitioner] is negligent if [he/she] fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful [insert type of medical practitioners] would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as “the standard of care.”[2]

As described above, determining whether a particular professional’s actions fell below the specific standard of care is determined based off of similar professionals. What level of professional learning, skill and care would have been required in that instance is determined only from the opinions of the physicians (including the defendant) who testify as expert witnesses.[3]

  • Breach: if based on the professional’s specific standard of care, the individual has failed to live up to that standard, a breach has occurred.
  • Causation: the breach of duty must have been the proximate, or legal, cause of the resulting injury. Plaintiff must show that the defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of the injury.[4] It is not sufficient to allege that the defendant negligently failed to diagnose plaintiff’s condition and that because of this plaintiff became ill.[5] A direct connection between the negligence and the injury must be shown.
  • Damages: compensatory, general and punitive damages may all be recovered upon a showing of the above elements. In California, Medical Injury Compensation Reform Act (MICRA) limits non-economic damages to $250,000, including claims for pain and suffering, loss of enjoyment of life and loss of consortium.[6] This cap does not affect economic damages such as compensation for past and future medical care and lost income.
[1] Fraijo v. Hartland Hosp., 99 Cal. App. 3d 331, 341 (Ct. App. 1979).
[2] Judicial Council Of California Civil Jury Instruction 501, Judicial Council Of California Civil Jury Instruction 501.
[3] Cal. Jury Instr.–Civ. 6.30, Cal. Jury Instr.–Civ. 6.30. An exception to this rule is when the circumstances are such that the required conduct would be within a layperson’s common knowledge. Massey v. Mercy Medical Center Redding, 180 Cal. App. 4th 690 (3d Dist. 2009).
[4] Bushling v. Fremont Med. Ctr., 117 Cal. App. 4th 493, 509 (2004).
[5] Dunn v. Dufficy, 194 Cal. 383, 388 (1924).
[6] Cal. Civ. Code § 3333.2 (West).
Web Statistics