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Frequently Asked Questions
Medical Malpractice

What is medical malpractice?

Malpractice is another word for "negligence" which means that a health care provider did not measure up to the standard of care expected of reputable and careful health care providers under similar circumstances. If the malpractice caused harm, a lawsuit or claim may be filed to recover damages for the harm that was suffered.

Who are health care providers?

Health care providers are the people and institutions involved in the "healing arts." Included in the definition are medical doctors, podiatrists, chiropractors, nurses, physician assistants, midwives, optometrists, dentists, psychologists, pharmacists, physical therapists, hospitals, clinics, and health maintenance organizations (HMOs).

What is the medical standard of care?

Health care providers are required to use that degree of learning and skill ordinarily used under similar circumstances by reputable and careful members of the profession. If, for example, a surgeons actions are questioned, another surgeon must testify that the doctor being sued failed to do something that he should have done, or did something which he should not have done.

Why are expert witnesses necessary?

If the subject matter is not commonly understood by ordinary people, then evidence may be offered by someone with specialized knowledge and experience. This person is called an "expert witness." In most medical malpractice cases, the plaintiff cannot prove the case unless an "expert" testifies regarding the issues of "standard of care" and "causation."

What is causation?

Causation means that the incorrect actions of the health care provider probably led to or contributed to the injuries and damages suffered. For example, if an emergency room doctor did not quickly examine a patient, it could be a life-or-death situation. However, if the patient would have died, regardless of anything a doctor might have done, then there would be no "causation," even if the doctor delayed his examination. Another example of "no causation" would be a person who receives an incorrect prescription from the pharmacist and realizes the mistake before she takes the medicine. However, if the medicine were actually taken, and harm resulted, there is "causation."

Why does causation have to be proven by a probability and not a possibility?

To prove a medical malpractice case, it must be probable that the incorrect treatment caused the harm. In this context, "probability" means that it is "more likely than not" that the treatment caused the harm. The plaintiff must prove that there was more than a 50% likelihood that the harm was caused by the negligence. For example, in a case involving the negligent failure to diagnose cancer, if there was less than a 50% chance that earlier diagnosis would have affected the outcome, there is only a "possibility" and not a probability. The law does not permit recovery of damages based on a "possibility." The law does not permit recovery of damages based on a possibility.

What damages can be recovered in medical malpractice cases?

Damages are divided into two categories: economic and non-economic. Economic damages include out-of-pocket losses that have ascertainable monetary value, such as lost earnings and medical bills. If the loss can be replaced with money, it is "economic." Non-economic damages are typically known as "pain and suffering" damages. It is compensation for physical impairment or disability, or the diminished enjoyment of life caused by the malpractice. If the malpractice resulted in a patient's death, the damages include compensation for the lost financial support that the spouse and family would have received, and compensation for the loss of the decedents care, comfort and love.

Are there limits on what damages can be recovered?

Yes. In 1975, the California legislature reacted to a threat by physicians who were complaining that their malpractice insurance was too high and that they would leave the state if malpractice damages were not limited. Non-economic damages were limited to a maximum of $250,000, regardless of how much pain and suffering was caused by the malpractice. If a person became totally paralyzed, he or she could be awarded only $250,000 for harm which could not be translated into dollars for lost earnings or the cost of medical care. If a husband and father died because of malpractice, only $250,000 could be awarded for the loss of his care, comfort and love. Even though more than 35 years have passed and the value of a dollar is much less, the limitation on these damages has never been raised. There are no limits, however, to damages that can be awarded for tangible financial losses, such as lost earnings and the cost of medical care.

How much does it cost to have a malpractice case reviewed?

We do not charge any fees to evaluate a malpractice case. However, the determination of whether harm was caused by malpractice is usually made only after a medical expert has reviewed the case and rendered a favorable opinion. Typically, the medical expert will charge between $1,000 and $3,000 (or more) depending on how long it takes to review the medical records. If the client cannot afford to pay for the medical expert's review, we may agree to advance the cost of the expert consultation if we think the case might have merit.

What if I can't afford hourly attorney fees?

We handle most medical malpractice cases on a contingency fee basis, which means that money is paid after settlement or judgment, we are paid a percentage of the money recovered as a fee.

Choose lawyers with experience in malpractice cases.

You want your attorney to have substantial experience representing plaintiffs in malpractice cases. Why Choose Blumberg Law Offices? Because we have the reputation, knowledge, and experience to give you a fighting chance against the malpractice defendants and their insurance companies. John P. Blumberg is certified as a specialist in Medical Malpractice law by the American Board of Professional Liability Attorneys. View our Medical Malpractice Case Summaries for examples of the medical malpractice cases we have handled.