Medical Malpractice: The 7 Things You Need to Know Before Filing a Claim

Medical malpractice is one of the most difficult types of personal injury lawsuits to successfully prosecute. The New England Journal of Medicine (NEJM) found that only 21 percent of medical malpractice verdicts are awarded in the plaintiff’s favor. While some of medical malpractice claims filed do reach a settlement, the unfortunate truth is that many more claims fail to make it past an attorney’s case evaluation because they are not financially viable to pursue. Read on to learn more about the challenges of filing a medical malpractice lawsuit.

1. The Statute of Limitations

Every personal injury lawsuit has what’s called a “statute of limitations” dictating how long the injured party has to file their claim. Most personal injury claims in California have a two-year statute of limitations, meaning you have two years from the date of your incident to file a lawsuit. A medical malpractice lawsuit must be brought either within one year of when you discover your injury, or no later than three years from the date of the injury. There are exceptions that prevent doctors from being able to get away with fraud or concealment, but generally speaking, medical malpractice has a stricter statute of limitations than other personal injury claims.

2. Cap on Damages

California’s Medical Injury Compensation Reform Act (MICRA) places a $250,000 limit on the non-economic damages that can be recovered in a medical malpractice lawsuit. Non-economic damages are the “pain and suffering” that plaintiffs usually seek in a personal injury claim, including:

• Physical discomfort
• Emotional distress (depression, anxiety, grief, etc.)
• Damage to reputation
• Mental suffering
• Loss of companionship
• Aggravation to a previous injury
• Death of a family member

$250,000 might sound like a lot of money, but not when applied to the loss of a loved one or other catastrophic injury. Furthermore, MICRA has not been adjusted to keep up with inflation since its enactment in 1975. Without going into hard economics, we’ll just say that the $250,000 would need to be quadrupled to be worth in 2017 what it was in 1975. And, when you factor in litigation costs and attorney fees, it’s easy to see how a medical malpractice claim can quickly become “in the red,” even if there is a recovery.

3. Collateral Source Rule

Another unfavorable aspect of MICRA for medical malpractice plaintiffs is the collateral source rule. In a typical personal injury case, the plaintiff can seek recovery for all medical expenses relating to their injury, including those paid by a third party such as a healthcare provider. In a medical malpractice lawsuit, the defendant can introduce evidence of payments made by insurers, workers’ compensation benefits, and other outside sources. This means that not only are your non-economic damages limited, so are your economic damages, including future medical expenses.

4. Standard of Care

In order to win a medical malpractice lawsuit, you must prove that your doctor, surgeon, nurse, or whoever is responsible for your misfortune breached a standard of care. This is more difficult to prove than standard negligence, because the standard of care is set by doctors themselves, and you need to be able to point to a specific act that was undeniably outrageous and below the standard–something that all reasonable doctors would outwardly condemn. Remember, unsuccessful results do not mean that your doctor acted unreasonably. Virtually every medical procedure comes with inherent risks that do not result from medical malpractice.

5. Causation

Let’s say you’re within your statute of limitations, the financial calculations are in your favor, and you manage to prove that your doctor made a decision or error that does indeed fall below the standard of care. At this point, you would think that your claim is on a winning path, right? We’re sorry to say that you still have a long way to go.

Often the doctor will contest the causation of your injury and whether their actions were a “substantial factor” in your injury. California law states:

“A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.”

For example, if your claim is that your doctor failed to diagnose you with heart disease and you had a heart attack a year later, the doctor will likely testify that you would have had a heart attack even if they had diagnosed you correctly. It’s a simple argument that can negate your medical malpractice claim. We see this a lot with cancer patients who simply can’t prove that survival would have been probable if not for their doctor’s failure to diagnose them timely.

6. Expenses

To elaborate on why so many medical malpractice claims are not financially viable, these cases involve much more than standard attorney fees and court costs due to the need for medical expert witnesses. In order to prove a breach of the standard of care and causation, you will need a medical professional—or perhaps several medical professionals—to testify in court on your behalf. These fees routinely run tens to hundreds of thousands of dollars. Worse yet, they cannot be claimed as damages in your lawsuit. Put simply, your attorney will have to go out of pocket for what will likely be years of litigation, for the hope of a limited payoff. Again, the calculations are often unviable for both you and your attorney.

7. Arbitration

A large number of the medical malpractice cases that do make it over the many hurdles above will end up in arbitration, which means you don’t even appear before a jury. California law allows medical providers to seek arbitration for disputes with patients, and most have this written in their documentation. Kaiser Permanente, for example, has an agreement with almost all of their members that any medical malpractice lawsuit brought against them will proceed to arbitration.

Get a Free Medical Malpractice Case Evaluation

Do you believe that you or a loved one is the victim of medical malpractice? This article is meant to educate, not deter. Let Belgum, Fry & Van Allen provide a free case evaluation to help you determine whether you have a viable medical malpractice claim.