The road to filing for medical malpractice is long and hazardous. You could have suffered poor or improper medical care, a misdiagnosis, lack of consent, or breach of doctor-patient confidentiality. If this caused you harm, you may have grounds for a medical malpractice claim in California. Here are the steps you need to follow to ensure the best outcome.
1. Consulting with a Medical Malpractice Attorney
Not only is it difficult to prove whether the standard of care was followed, but you also don’t have much time. In California, the statute of limitation for malpractice is one year from discovery of the injury or three years after the date the injury happened, depending on which comes first.
To help you navigate all these rules and caveats and advise you on what you should or shouldn’t do, the team at the Law Offices of Michael Oran, APC, have the experience and expertise necessary to guide you.
If you decide to seek the advice of an attorney during your initial consultation, you will review your medical condition and the treatment that led to your injury. In order to prove your claim, you’ll need to gather several documents.
2. Investigation and Gathering Evidence:
The most important documents you’ll need are your full medical records. You can request them yourself or give written permission to your lawyer to retrieve them. In California, health providers have five business days to let you see your records or 15 business to provide copies. Next, you need to prove the provider-patient relationship, through your medical records or bills.
Once you have gathered all these, which can take several months, you need a medical expert to review your case. They have to be a medical professional with the same qualifications and in the same geographic area as the one you’re suing. This is how a breach of standard of care is proven.
Many healthcare professionals may be reluctant to testify against a colleague. However, experienced medical malpractice lawyers will have a network of willing experts.
At this point, your lawyer might be able to estimate the amount of damages you could receive and whether your case should go to court or be satisfied with a settlement. Damages compensate for pain and suffering, and they should cover the cost of additional medical treatment as well as loss of income.
3. Filing the Lawsuit
One last step before you can actually file the lawsuit: California law requires you to send a notice of claim to the healthcare provider you’re about to sue. It must be sent at least 90 days before suing and needs to include the legal basis of your claim, the type of loss sustained, and the nature of the injuries suffered.
Some states require that a certificate of merit be filed along with the complaint. That is not the case in California; one less thing for you to do! Once the 90 days are over, you can file the complaint: your lawsuit has now officially started. The next steps between that and going to trial can take from one year and a half to three years.
4. The Discovery Process
Now starts the discovery process. This is where each party sends interrogatories, document requests, and takes depositions. That means the healthcare provider’s legal team can ask you to make a deposition. Your lawyer’s advice can be precious at that time.
Each party can be dissatisfied with the other’s responses and file a motion to compel further responses, which a judge decides on. This process can last a year or more.
5. Settlement Negotiations and Mediation
It is possible that your case might not go to trial at all. Once the discovery process ends, talks of settlement usually begin. This could be to your advantage – or not.
In medical malpractice cases, the healthcare provider has the last say since the cost of settlement might have consequences on their insurance. As for the insurance providers, they often prefer taking the case to trial to discourage plaintiffs from litigation.
You might prefer a settlement to close the case quicker. But depending on the details of your case, a trial could award you more damages. Speak to a lawyer at the Law Offices of Michael Oran, APC, to figure out what option would fit you best.
6. Going to Trial
If you don’t settle, you will now take the case to trial. In California, any civil lawsuit can be tried by a jury. Jurors can be more compassionate than an insurance legal team and award you more damages than you’d have been granted in a settlement. But they also can get lost in the many technicalities of a malpractice case. The jury will be made of 8-12 jurors, picked by the judge and lawyers of both parties.
For a medical malpractice case, only three-quarters of the jurors need to agree. The trial can take several weeks, and its outcome is unpredictable – while it may lead to a larger settlement for you, this is not guaranteed.
7. Verdict and Post-Trial Motions
While the jurors deliberate, they can ask the judge or lawyers questions. Once they have a decision, they will allocate damages. In California, there is a cap for non-economic damages of $250.000. Besides, if you are found to bear some negligence too – like not following the doctor’s orders – damages will be diminished proportionally.
After the deliberation, you will be called back to court, where the judge will read the verdict. The losing party has the right to appeal. If an appeal ensues, no damages will be paid until it’s resolved.
Talk to the Experts at the Law Offices of Michael Oran, APC
As you can see, the journey to file and win a medical malpractice case is long and difficult. It is in your best interest to seek professional legal advice. You can rely on the experience of the team at the Law Offices of Michael Oran, APC, and their expertise in successfully handling such cases in California. Keep in mind the shortness of the statute of limitation for medical malpractice and schedule a consultation to discuss your case as soon as possible.
