As a patient you have a special patient-doctor relationship and you are entitled to expect a certain standard of care from your doctor or health care practitioner. This standard of care can be defined as the type and level of care that a reasonably skilled and competent health care professional, who has a similar medical background, would have otherwise provided under the same circumstance, which led to the alleged medical malpractice.

Your doctor therefore has a duty to act within this level of care. If your doctor fails to meet this standard of care, it may amount to medical negligence or malpractice. Therefore, if you suffer an injury as a result of this failure, you may be able to seek damages based on medical negligence. California Law enables victims of medical negligence to file a lawsuit against the responsible medical practitioners. In this regard,

Medical Malpractice cases succeed or fail based on whether you can establish medical negligence. Medical negligence can occur for a variety of reasons. Some common examples are:

Surgical errors: Failure to follow post-operative procedures lead to equipment being left behind in the patient, etc
Missed or late diagnosis: Your doctor failed to follow the recognized diagnostic methods. He/she failed to ask about your medical history or failed to order tests, etc.
Medication errors: Your doctor over-prescribed your medication, or failed to consider side effects or allergic reactions or the interaction with other medication.
Injuries during childbirth: The incorrect use of birthing equipment caused injury to the baby, or the doctor failed to notice telltale signs of certain conditions.

In the above examples negligence can be apparent, and relatively easy to prove. In most cases however, establishing medical negligence will be complex from a legal and a medical viewpoint. You will need expert evidence and witnesses, and you are sure to be met by a team of legal and medical experts protecting the profession.

Proving Medical Negligence

There are several things that you need to do to be able to prove medical negligence. Firstly you need to establish the existence of a duty of care between the medical practitioner and the patient. In other words, you need to prove there was a doctor/patient relationship.

Secondly, you need to prove the standard of care has been breached. In order to prove that the standard of care has been breached, you will need to present evidence about the reasonable conduct and level of care expected of a competent medical practitioner with a similar qualification in similar circumstances, and show exactly how the medical practitioner in question fell below this standard.

Then you need to establish that your doctor breached both this duty and standard of care by failing to act within the reasonable standard of care. He/she deviated from the standard of care.

Up until this point, you are trying to establish medical negligence.

If you succeed in showing that the medical practitioner’s conduct is below the expected standard and/or duty of care, you may succeed in your case of medical malpractice based on negligence.

Negligence on its own, however, is not enough to succeed with a medical malpractice claim. In addition, you have to prove a causal connection between the practitioner’s deviation or failure to meet the standard of care and your injury. You must prove that his/her negligence actually caused your injury, and you need to establish that you suffered damages as a result of the injury.

Proving negligence by relying on “Res ipsa loquitur”

Californian law recognizes the difficulties in proving medical negligence. If you suffer an injury as a result of a medical procedure, but you can’t prove exactly what conduct caused the injury, yet the injury could not have occurred without negligence on the part of the doctor, you can rely on a legal doctrine known as “res ipsa loquitur” to establish negligence. This means you can let “the thing speak for itself”.

If your case is such that you can rely on this doctrine, the burden of proof shifts from you to the medical practitioner. He/she now has to prove that he/she was not negligent.

When can you invoke the “res ipsa loquitur” doctrine?

You can “let the thing speak for itself” when:

Evidence of the actual cause of the injury is not obtainable.
The type of injury does not normally occur without negligence.
You are not responsible for, or contributed towards, your own injury.
The injury was caused by an agency or instrumentality within the defendant’s exclusive control.
The injury could not have been caused by any agent or instrumentality other than that over which the defendant had control.
A common instance where you could rely on the “res ipsa loquitur presumption is where it is undisputed that a surgical sponge or instrument was left behind in your abdomen. The jury can infer negligence from such.

Is there a deadline to file a lawsuit?

Yes, in California you have three years from the date of injury, or one year from the date you knew, or should have known, about the injury to file your claim. The earlier of the dates is the deadline for filing a lawsuit.

Remember: You cannot consent to negligence!

Medical procedures have inherent risks and your doctor should discuss these risks with you. You will sometimes be asked to sign a consent form stating that you understand and accept the risks. Medical negligence however, goes beyond these inherent risks and your doctor cannot escape liability by you signing the consent form.

Legal assistance

To succeed in proving medical negligence you need assistance from a lawyer with knowledge and experience in medical malpractice cases. You need a lawyer with expert knowledge of state and federal laws and medical procedures. Your lawyer needs the knowledge to examine medical records and navigate these highly technical matters. Our team of lawyers have both the knowledge and the experience to provide you with expert assistance in filing and pursuing your medical negligence case. Give us a call now and speak to one of our California medical malpractice lawyers and let us discuss your situation and help you determine if you have a case worth pursuing.