California Laws Regarding Medical Malpractice Recovery
Medical malpractice recovery can be tricky in California. In 1975 the state reformed its medical practice laws with provisions that can be construed to be physician-friendly. Knowing the special procedures and rules that apply to medical practice lawsuits in California helps to ensure that your case is not unnecessarily dismissed, filed improperly or is filed without consideration of the limitation on non-economic damages.
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Instructions
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A lawsuit based on medical malpractice must be filed in a timely manner. In California, and in general, the statute of limitations for a medical malpractice action is one year. This means that the plaintiff must file a lawsuit within a year from the date that he discovered the malpractice. In some situations, the statute of limitations is lengthened. For example, in the case of a retained foreign body (e.g., something left in the body cavity during surgery), the time in which the plaintiff must file his lawsuit is tolled until the plaintiff discovers the presence of the foreign body. At the time, the statute of limitations clock begins to accrue.
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Under California's Medical Injury Compensation Reform Act ("MICRA"), a plaintiff must provide notice to a healthcare provider of his intent to file a lawsuit against the provider for medical malpractice. The letter must be sent 90 days prior to the filing of a lawsuit and must inform the healthcare provider as to which specific injuries the plaintiff contends are a result of the provider's malpractice. The purpose of this notice requirement is to encourage the parties to settle the matter so as to prevent the filing of an unnecessary lawsuit. A doctor concerned about the effect a lawsuit could have on his reputation may submit the claim to his insurance company in hope of settling the matter before attorneys' fees, court costs and publicity result.
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Another feature of MICRA is a cap on the recovery a plaintiff can get for non-economic damages. In California, the maximum amount of money a plaintiff can recover for pain and suffering or physical impairment or disfigurement is $250,000. This amount is pro-healthcare provider, limiting the provider's liability exposure, and has not been adjusted for inflation since the law was enacted in 1975. Plaintiffs, of course, can recover the full amount of their economic damages (e.g., loss of earnings) as they can substantiate according to proof. The cap on non-economic damages requires plaintiffs and their attorneys to run a cost-benefit analysis to determine whether filing a lawsuit makes economic sense.
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Tips & Warnings
Though the $250,000 for non-economic damages can be applied to a one-time claim, there is authority for allowing separate caps for the patient and a spouse claiming loss of consortium, advises McCullough, Campbell & Lane LLP in the firm's California Medical Malpractice Summary.
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