Q: What is medical malpractice?

Medical malpractice is any action for personal injury against a healthcare provider based on professional negligence. This term is most often used to apply to a law suit brought by a patient against his or her physician as a result of getting “bad care.”

Q: What is a “Healthcare Provider?

Under Section 364 of the California Code of Civil Procedure, the “healthcare provider” means “any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.” Furthermore, the term "health care provider" also includes “the legal representatives of a health care provider.”

I took the quotes above right from the Code, so the definition might need some translation. The term “healthcare provider” may be applied to your physicians, nurse practitioners, physician assistants, dentists, chiropractors, and anyone else who holds a license to practice healthcare.

Q: So, if a person or a facility has a license to treat other people, that person or facility is a healthcare provider?

Exactly. Furthermore, the license held is meant to control the quality of the healthcare provided by the person with the license. A licensed provider must practice his or her profession with no less than the degree of learning and skill ordinarily possessed by other practitioners in the same or similar locality and under the same circumstances. This level of skill is often called the “standard of care.” Hence, a licensed healthcare provider must practice within the standard of care when he or she provides “care.”

Q: How do I check my healthcare provider’s license status?

The internet offers a quick way to check the status of doctors. To check the status of a California doctor, visit http://www.medbd.ca.gov which is the site for the Medical Board of California. For example, you can see my status at Paul J. Molinaro, M.D., J.D.

For healthcare providers in other states, try the site of your state medical board or state department of consumer affairs.

Q: How do I know if my healthcare provider is providing the standard of care?

The first clue is when something goes wrong with your medical condition, meaning you do not get better, or in some cases get worse. When you seek treatment for a medical illness, you expect to get better. When you do not get better, or get worse, your expectations are not met.

Q: So, anytime I seek medical treatment from a healthcare provider, and I do not get better, I can sue for medical malpractice?

Absolutely not! Such and idea would imply that patients should always get better, and common sense tells us that is not true. I simply stated that the “first clue” to a medical malpractice case is when a patient does not get better. The next step in evaluating a potential medical malpractice case is to determine why a patient did not get better or why the patient got worse.

Q: How can I find out why I did not get better?

If you have a good relationship with your doctor or other healthcare provider, just ask. If you feel uncomfortable asking such a question, that may be a sign that you and your provider are not a great fit. I tell my patients that they should feel comfortable with their doctor, meaning that they feel free to ask questions: questions about my diagnosis; questions about tests I order or do not order; questions about medications I prescribe; questions about symptoms they think are unrelated to their diagnosis; and even questions about alternative treatments they have read about on the internet.

If you are not comfortable asking your doctor, doubt your doctor will be truthful, or are otherwise not able to ask, then you can get a second opinion from another doctor. In some cases, your insurance plan will cover the expense of second opinions. Because coverage may vary according to your health insurance plan, contact your insurance carrier to learn more about your rights to a second opinion.

If the second opinion suggests that your initial care was below the standard of care or if you are not able to get a reliable second opinion, you can consult a medical malpractice attorney. I generally offer a free, though brief, initial consultation to go over the basic facts surrounding the care received by a potential client. I then provide an opinion as to what next steps, if any, should be taken.

Q: What types of information would I need to have when I call for an initial consultation?

One of the most important things you need to know is the date on which you knew or should have known that you had a medical problem or suffered harm from medical care that you received. This date is important because there are time limits, set by law, which you must follow when suing a healthcare provider. This time limit is called a “statute of limitations.”

In California, the statute of limitations is set forth in Section 340.5 of the California Code of Civil Procedure which states, “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”

The time limits for children may be extended depending on the facts of the case. California provides even shorter time limits for legal actions against governmental entities such as county hospitals where the statute of limitations may be six months.

Q: What happens after the time limit set forth by the statute of limitations has run?

Essentially, the patient will lose the case. The issue of whether the healthcare provider was at fault will never even arise. Delay in bringing your case may have very harsh penalties.

Q: What other types of information would I need to have when I call for an initial consultation?

I would ask you where you received your healthcare. Generally, you need to bring your case in the state where you were treated. I will ask why you sought care and what care was provided.

Additionally, in order to be successful in a medical malpractice case, you will need to have provable damages. This means you must have suffered some measurable harm as a result of the substandard care you received. For example, if a doctor gives you the wrong medicine, and you take one tablet before discovering the error, the doctor has likely practiced below the standard of care. However, if you suffered no side effects from that one wrong dose, and quickly got the correct medicine, you have no measurable damages.

Q: I was considering calling an attorney after I received bad care, but my in-laws accused me of just wanting money and made me feel guilty. Isn’t it wrong to try to get money by suing a doctor who just made a mistake?

This is a question which could take many scholars thousands of pages to answer. The answer would encompass discussions of law, societal ethics, medicine, and personal belief systems. However, I want to be clear that doctors, and other healthcare providers, are allowed to make mistakes. We do not hold them to a standard of perfection. We only hold them to practice with, at least, the degree of learning and skill ordinarily possessed by other practitioners in the same or similar locality and under the same circumstances; the standard of care.

So, to answer your question, let me just say that, whatever opinion you or anyone else has, when you suffer harm because a healthcare provider failed to provide the standard of care, the law allows you to recover money. The reason is that when you suffer permanent harm to your body, it is unlikely that such harm can be fixed. The pain and suffering you experience cannot be undone. Time lost cannot be replaced. Thus, the only thing of value that can be offered is money.

You place great trust in your healthcare providers. You depend on their professional skills to provide an accurate diagnosis and prescribe appropriate treatment. In accepting you as a patient, those healthcare providers accepted the responsibility to provide you with no less than the standard of care. With their responsibility comes liability for harms caused by not meeting the standard of care.
Furthermore, when you have been treated and did not get better, or got worse, you may not know the reason why. If you learn that your misfortune was not the result of receiving bad care, you may be able to put the “why questions” behind you and move on with treatments. If you find that your healthcare provider was at fault, then, again, you can put the “why questions” behind you and move on with treatments. Either way, you receive closure, and, emotionally, that is very important.

Q: What kinds of errors are often associated with medical malpractice?

Let me use the physician as an example, although a similar pattern applies to any healthcare provider. Taking your interactions with doctors in a chronological order, the general pattern is: (1) you develop symptoms; (2) you decide that the symptoms need professional treatment; (3) you visit a doctor, and the doctor takes your history, performs a physical examination, orders diagnostic tests; (4) the doctor makes a diagnosis; (5) the doctor starts you on a course of treatment which may involve medication, surgery, radiation treatment, chemotherapy, physical therapy,  lifestyle changes, or some other modality; and (6) you either get better, fail to improve, or get worse.

It is your responsibility to seek healthcare when you are ill. Thus, you are fully responsible at Steps One and Two above for your own healthcare. If you have waited too long to seek help, your doctor will not be able to help you no matter how competent he or she is. For example, a patient may develop a small lump and ignore it for years. By the time the patient seeks treatment, his or her cancer is untreatable. Furthermore, even if the doctor fails to diagnose this cancer, a case for medical malpractice might be futile, because the patient will die whether the cancer is diagnosed and treated or not.

Step Three is important in that your doctor should obtain a complete history from you, perform a thorough physical examination, and order the tests needed to make the correct diagnosis. If your doctor does not ask the right questions and allow you time to fully answer, he or she may not have taken a thorough history. If your doctor is in a rush, and does not fully examine you, he or she may miss valuable signs of illness such as rash, lumps, weakness, or loss of mental ability. Finally, your doctor might not order appropriate tests, either because he or she did not keep up to date with diagnostic tests or because of the hassles of getting tests approved by your insurance carrier. There is no valid reason for failing to take a complete history, do a thorough physical examination, and order the appropriate tests.

I would like to add more about ordering tests. If your doctor feels that a test is necessary, but your insurance does not cover the test, your doctor should tell you that fact. While your doctor does not have to pay for the test himself or herself, you should be told that a test is necessary and that your insurance does not cover the test. Then, you can either pay for the test “out of pocket” or try to get your insurance company to pay for it. In any case, you should be told which tests are necessary and appropriate.

At Step Four, your doctor should make the proper diagnosis. If the doctor has gotten your history, examined you, and done the right tests, he or she should be able to make a reasonably certain diagnosis. If the doctor makes an incorrect diagnosis, the law will look to whether your doctor’s diagnosis was made using the degree of learning and skill ordinarily possessed by other practitioners in the same or similar locality and under the same circumstances. Failure to diagnose within a reasonable time, or misdiagnosing a disease altogether are often medical malpractice.

Additionally, a doctor should always follow up on test results. For example, if a mammogram is ordered during an office visit, the patient often goes to the mammography center a few days later. Then the patient waits a week or two for the results. If the doctor does not notify the patient of an abnormal result, that doctor may be liable for medical malpractice.

Step Five may be where the majority of medical malpractice occurs. However, keep in mind that I have simplified the steps, and the distinctions between steps are not always clear. For example, it may be well within the standard of care for your doctor to start a treatment plan to see if you get better, and have an alternate treatment plan if you fail to improve. However, this web site is not meant to provide an in dept lesson in medical treatment but just a brief overview of medical malpractice. Step Five is where your doctor’s errors may cause serious harm. For example, an unskilled surgeon may cut the wrong structures during an operation, and then fail to properly monitor the patient post operatively. A medical doctor may prescribe the wrong medication and fail to monitor whether his or her patient improves.

Step Six is where a patient must decide whether a second opinion is needed or whether a lawyer should be consulted. As discussed above, a bad outcome is not always due to medical malpractice, but you may need help in knowing the difference.

Q: I think I have a medical malpractice case. What should I do now?

Because there is a time limit on when you can bring a law suit, you should consult a lawyer as soon as possible. If you are in California , I invite you to call my office. If your are not in California , or would like a referral, call your state bar association or county bar association  for a list of medical malpractice attorneys.

Q: Do you have any advice for choosing a medical malpractice attorney?

Yes. First, trust your instincts. You should feel comfortable with your attorney. This means that he or she listens to you, treats you with respect, and answers all your questions. You should not feel embarrassed discussing your case or any of your medical problems with your attorney. Also, attorneys are under a duty of confidentially, so you should be able to trust them with your secrets.

Second, make certain your attorney has experience handling cases like yours. While I may not have been an attorney for decades, I have been a physician since 1991. I am very comfortable with medical issues. I also use the team approach I learned in medicine when I handle a medical malpractice case. That is, I will often bring another attorney on board to help me. These associates, who are usually referred to as “of counsel” have twenty or more years of successful litigation experience in medical malpractice cases. When a client hires me, they hire my team. When you interview potential attorneys make sure you know their qualifications and who they use on their team.

Third, the payment arrangement with your attorney should be made clear and set forth in writing from the very beginning. Some attorneys, often those with larger firms will cover all expenses of your case. This means you pay nothing unless you win. Of course, the catch is that these firms are very selective in the cases they take. They do not gamble with their money, and unless your case is straight forward and has the potential of a large award, these firms will not take your case.

Other firms, will often work out an arrangement whereby the client pays all “hard costs” of the suit as they are incurred, and the attorney takes a percentage of any award at the end of the case to cover the attorney’s fees. This means that costs for copies of medical records, expert witnesses, depositions, court fees, and such (anything that requires the payment of money up front) will be the responsibility of the client. The attorney’s hourly work will not be charged unless the case is successful. My firm usually follows this second approach, but it depends on the case. We are very selective in the cases we accept, but we are also very sensitive to our client’s financial situation. Thus, we are flexible in how we set up arrangements for our fees.

Whether or not a law firm covers all the costs or makes the client cover the “hard costs,” the fee collected is a percentage of the recovery. California makes negotiating lawyer’s fees for medical malpractice cases very easy. It does not allow negotiation.

Under Section 6146 of the California Business and Professions Code:

“An attorney shall not contract for or collect a contingency fee for representing any person seeking damages in connection with an action for injury or damage against a health care provider based upon such person's alleged professional negligence in excess of the following limits: (1) Forty percent of the first fifty thousand dollars ($50,000) recovered. (2) Thirty-three and one-third percent of the next fifty thousand dollars ($50,000) recovered. (3) Twenty-five percent of the next five hundred thousand dollars ($500,000) recovered. (4) Fifteen percent of any amount on which the recovery exceeds six hundred thousand dollars ($600,000). The limitations shall apply regardless of whether the recovery is by settlement, arbitration, or judgment, or whether the person for whom the recovery is made is a responsible adult, an infant, or a person of unsound mind.”

Q: Anything else to add to this page?

Yes, the standard disclaimers. This website is not intended to provide any legal advice nor is it intended to provide detailed information on medical malpractice. It is maintained for general educational purposes only. There are no guarantees to the accuracy of any information on this page or other pages. Anyone looking for legal advice should personally contact an attorney. Any examples I use, which may be similar to your situation are not meant as legal advice for you. I use examples to emphasize points for general education.

If you live in California and would like further information about your situation, please call my office. I offer a no obligation telephone consultation for most inquiries. Readers in other states should consult a local attorney or, if a recommendation is needed for a local attorney, contact their state or county bar association.