San Francisco Medical Malpractice Lawyer
When you are sick or injured, you depend on your health care provider to diagnose and treat your condition quickly and effectively. You trust that your provider is making the correct diagnosis, performing the most effective treatments, and prescribing the right medications in the appropriate doses. If a health care provider makes a mistake in any part of your medical treatment that results in additional injury or fatality to you or a loved one, you may be entitled to recover financially for any damages you suffer. The legal basis for your financial recovery is called “medical malpractice.”What Is Medical Malpractice?
“Medical malpractice” is a fancy way of saying that your health care provider did something wrong when treating you and caused you to become sick or injured. Sometimes, a medical error may even cause death. When any of these occur, California law allows you to file a legal claim (a “medical malpractice” claim) against the health care provider at fault. A medical malpractice claim can be complex, however, and can be difficult to prove.What Do I Have to Prove in a Medical Malpractice Claim?
To prove a medical malpractice claim, it is not enough simply to show that you are dissatisfied with the outcome of your medical care. Sometimes doctors do all they can to provide effective treatment. Even if a doctor does all the right things, a patient may not recover as quickly or completely as he or she had hoped. Some patients simply don’t survive their illness. This does not mean that the health care provider committed medical malpractice.
To prove medical malpractice, you must show that your health care provider was negligent in the way he or she performed their medical duties. In fact, the name for medical malpractice under California law (Cal. Civ. Code § 340.5) is “Professional negligence.”
To prove that a health care provider was professionally negligent, you must prove four things:
- A duty of care. You have probably heard of the “Hypocritic Oath”—the ethical oath that physicians take to “Do no harm.” What this really means is that they must provide a quality of care that is accepted and practiced by other healthcare professionals with similar training and skills. Put simply, doctors must act reasonably, based on how other doctors with similar training would treat their patients.
- A breach of duty. When a health care provider either acts or fails to act in a way that is unreasonably below the standard of care with which other health care professionals treat their patients, then that provider has breached the professional duty of care.
- Causation. To be negligent, it is not sufficient that a health care provider simply makes a mistake or breaches the duty to provide the appropriate standard of care. To be negligent, the provider’s mistake must be the proximate cause of the patient’s injury or death. This means that the patient’s injuries would not have occurred if the provider had not failed to provide the standard level of care.
- Damages. Finally, to prove negligence, the patient must suffer actual damages as a result of the provider’s failure to satisfy the professional standard of care. These can be economic damages, such as for hospital bills, prescription costs, or lost income, or they could include noneconomic damages, such as for pain and suffering, physical impairment, and inconvenience.
When a health care provider is negligent, and the patient is injured or dies as a result, then the provider may be liable for medical malpractice.How Often Does Medical Malpractice Occur?
According to a 2016 study conducted by a research team at Johns Hopkins Armstrong Institute for Patient Safety and Quality and published in The BMJ(formerly the British Medical Journal), medical error is now the third leading cause of death in the United States, after heart disease and cancer. The authors estimate that as many as 250,000 people die every year in the United States as a result of a medical error.
What Are the Most Common Types of Medical Errors?
Medical errors can occur in a variety of ways throughout the process of treating a patient. Here are some of the most common ways in which health care providers make mistakes that negatively affect their patients:
- Failure to properly diagnose. Failing to make a proper diagnosis can lead to serious medical harm to the patient. This can occur through:
- oFailure to diagnose (omitting or overlooking a critical condition);
- Misdiagnosis (identifying wrong conditions); or
- Overdiagnosis (identifying too many conditions or overtreating).
- 20.6% of all medical care delivered is unnecessary. This includes:
- 22% of all prescription medication;
- 24.9% of tests; and
- 11.1% of procedures.
In a 2017 survey of more than 2,100 physicians that was published in the medical journal PLoS One, responding physicians reported that:
In another study published in 2020 in the medical journal Diagnosis, researchers concluded that the three most commonly misdiagnosed diseases are:
- Vascular events;
- Infections; and
- • Prescription errors. According to data provided by the Academy of Managed Care Pharmacy (AMCP), as many as 1.5 million people are harmed—and more than 200,000 people die—each year as a result of prescription medication errors. A 2022 report from the National Library of Medicine (NLM) estimates that as many as 9,000 of these fatalities occur in the United States alone.
Prescription medication errors can occur at any stage of treatment by any number of healthcare providers, including:
- A doctor diagnosing the patient. If a doctor misdiagnosed a patient, there is a likelihood of prescribing the wrong medication.
- A doctor transcribing the prescription. It is not just a myth--doctors are notorious for poor handwriting! Because they are busy, they write quickly and abbreviate. The NLM report estimates that 75% of medication errors are caused simply by a physician being distracted. Miscommunication or misinterpretation can easily result in the patient receiving the wrong medicine or dosage.
- A pharmacist filling the prescription and dispensing the medication. According to the AMCP, the three most common dispensing errors include:
- Dispensing the wrong medication, dosage, or form;
- Miscalculating a dose; and
- Not identifying multiple drug interactions or contraindications (medical reactions) by the patient.
- A patient taking the prescription. Although the patient may take the wrong medication or dosage, it may be the result of the provider failing to educate the patient about the medication.
- Expired or poorly produced drugs. A pharmaceutical company may produce ineffective or contaminated drugs. This error can affect a host of patients who take the drugs.
According to a new law in California that became effective on January 1, 2023 (Cal. Civ. Code § 3333.2), those who may be subject to professional negligence include:
- A health care provider. A “health care provider” may include any person who is licensed or certified in the State of California as a:
- Medical professional;
- Osteopath; or
- Chiropractor, among other specialists, and
- A qualified clinic;
- Health dispensary; or
- Health facility; as well as
- The legal representative of a health care provider, including:
- An employer;
- Professional corporation;
- Partnership; or
- Professional practice organization.
- A health care institution. This includes one or more health care facilities owned and operated by the same entity or its affiliates, and all of its agents.
How Long Do I Have to File a Medical Malpractice Claim?
Pursuant to Cal. Civ. Code § 340.5, a patient generally has one year from the date he or she discovers their injury to file a medical malpractice claim. If a patient does not discover within a year that they have been injured, he or she has three years from the date of the actual injury to raise their claim. In some cases, if the patient is a minor child, the action must be filed within three years from the date of the provider’s negligence. If the minor child is under age six, the claim must be filed within three years, or before the minor child’s eighth birthday, whichever is longer.Do I Need a Medical Malpractice Attorney?
If you have been injured as the result of a health care provider unreasonably extending you care that was of lower quality than the standard care that other professionals normally provide, you may be entitled to full compensation for your injuries. But medical malpractice cases are complex and require very specialized knowledge, training, and legal skills to evaluate and prepare your case. Be sure to hire a medical malpractice attorney who can serve your needs.
At Moseley Collins Law, we want to provide quality legal services to those who need our help most. If, as a result of your case, you suffered over $1 million of economic damages, require constant (24/7) care, or you experienced the wrongful death of a loved one, call Moseley Collins today at 916-444-4444. We are anxious to assist you. If the facts of your case are not suited for the type of services we provide, we will make sure you receive all the resources or referrals you need to file your medical malpractice claim on time.