Medical Malpractice FAQ

Q: What is a medical malpractice case?

A: People file lawsuits against physicians when they feel that the treatment they received, or did not receive, caused them injury, or caused the death of a spouse, parent or child. In legal terms, a successful medical malpractice case must prove that a physician deviated from the medical standard of care, and that this deviation is what caused the patient harm. If this can be proven, a patient is entitled to collect monetary damages for their medical expenses incurred as a result of the malpractice, their income loss, and for their pain and suffering.

Q: What is a "statute of limitations"?

A: In simple terms, a statute of limitations can be thought of as a "deadline". Lawsuits must be pursued within a certain amount of time after an incident takes place. The statute of limitations timeframe is different for different areas of the law.

Q: What is the statute of limitations for medical malpractice cases in California?

A: In most medical malpractice cases, the statute of limitations is one year from the time someone either became aware, or should reasonably have become aware, that harm was done to them. If the malpractice or harm was hidden or not readily apparent, the statute of limitations can be extended to three years.

Q: Are there cases where the statute of limitations may run longer than three years?

A: Yes. The statute of limitations may be extended in cases involving minors under the age of eight years old, cases involving injuries a child sustains during birth, and victims from whom the malpractice has been fraudulently or intentionally concealed, or who are harmed by the presence of a foreign body having no therapeutic or diagnostic purpose. It may also be extended cases involving physicians who no longer practice in California, and cases in which the victim was mentally ill or disabled. Understanding the statute of limitations under these circumstances can be complex. If you feel one or more of these situations may apply to your case, please contact us for more information.

Q: Are there limits to the amount of money I can win?

A: In California, legislation limits the amount of money you can win as a result of your pain and suffering. However, awards resulting from wage loss or the cost of future medical care are not capped. These awards can sometimes total millions of dollars.

Q: What will it cost me to file a lawsuit?

A: Medical malpractice cases are usually accepted by attorneys on what is known as "contingency". This means that fees are not charged until your case is resolved, either at trial or by settlement. In California, limits are placed on the fees attorneys may collect.

This limit is based on a sliding scale that takes into account the final dollar figure agreed upon at settlement or awarded at trial.

Q: What if I believe that my doctor did not do something that they should have?

A: Medical malpractice cases can be broadly divided into ones either involving "commission" or "omission". When a physician actually "made a mistake", the medical standard of care may have been breached by "commission". If a physician failed to do something that they reasonably should have done, then the medical standard of care may have been breached by "omission". Both types of error can lead to a medical malpractice lawsuit.

Q: What are some common types of medical malpractice?

A: There are three main types of medical malpractice case.

  • Cases in which a mistake made in treatment
  • Cases in which an improper diagnoses was made
  • Cases involving a lack of consent

Lack of consent cases may involve patients who were treated against their will or who may not have been properly informed about the risks of a procedure, or about its chances of success.

It should be noted that in cases involving emergencies, a patient may not be able to give their consent, due for example to severe illness or unconsciousness. Lack of consent cannot be claimed under such circumstances. This exception encourages physicians to take bold action during emergencies, without having to fear future litigation.

Q: What is not medical malpractice?

A: While some procedures or treatments are simpler than others, all procedures and treatments involve some element of risk. Not all risks can be predicted ahead of time. For this reason, a negative outcome alone is not enough to hold a physician responsible for damages. A negative outcome must also be linked to proof that the physician failed to meet the medical standard of care. When this can be proven, a medical malpractice lawsuit may exist.

In some cases, a physician may make a mistake or otherwise fail to meet the appropriate medical standard of car, but what the doctor did wrong must also be proven to be the cause of damage to the patient. If the doctor’s mistake did not cause the patient harm, a successful lawsuit is not likely.

Q: My case is a slam dunk! Where do I sign up?[1]

A: We appreciate your enthusiasm, and hope that you contact us for a consultation! Please understand though that medical malpractice cases are complex, litigation can take years to complete, and there is no guarantee that your case will prevail. Lawsuits can be time and energy consuming. The choice to pursue legal action should be made with a full understanding of the risks involved.


[1] Intentionally silly wording. I figure this entire section would be heavily reworked based on what we want our overall tone to be, what our specific fee arrangements are, etc. Think of it as a placeholder.