How to sue a doctor for Medical malpractice

August 12, 2020

Patients or families of patients who have been injured or hurt because of receiving inappropriate medical treatment or as a result of mistaken diagnosis by a professional medical provider like a doctor, nurse, technician or hospital, can file a medical malpractice case. Continue reading this post to know How to sue a doctor for medical malpractice.

One can measure whether the medical provider was negligent or failed to provide appropriate care and diagnosis when one can prove that the patient would have received better care or appropriate diagnosis from other medical providers under similar conditions or circumstances.

In most instances, medical care providers’ are known to work hard for providing the highest standard of care for all their patients. However, there are a few instances when things go gravely wrong.

If you or your family member has been a victim of medical malpractice in the form of receiving poor medical care, wrong diagnosis, or breach of doctor-patient confidentiality, you are entitled to be compensated for medical malpractice from the concerned party.

What is the difference between Malpractice and Negligence?

All medical practitioners, doctors, nurses, hospitals, etc. owe a duty of care to their patients. This breach of duty of care by any medical practitioner or hospital is known as Medical malpractice.  It involves an element of “intent” which is not present in case of medical negligence.

The practitioner is aware that he/she should do something for treating the patient but they are unable to do so, knowing that the failure may be harmful or injurious to the patient. The practitioner does not want to harm the patient; however intentionally to go ahead with some decision or procedure, being well aware that they are risking the patient’s health and life.

For example, a doctor or hospital decides to forego a specific medical test which is very important only because it would not be covered by the patient’s insurance company.

At the same time, medical negligence does not involve intent.  When a medical practitioner commits a mistake while treating a patient that ends up harming the patient it is a case of medical negligence.

The act is definitely negligence, but it is not medical malpractice as the act was not committed by the medical provider with the intent of harming the patient.

For example, a nurse accidentally leaves behind gauze inside the patient’s body during surgery.  The nurse had no intent to harm the patient but it was a mistake that can harm the patient.

There is a very thin line between medical negligence and malpractice, only experienced medical malpractice lawyers or medical malpractice law firms can study the facts and evaluate the case to determine whether it is a case of medical malpractice lawsuit or medical negligence.

How to sue a Doctor? Is it hard to sue for Medical Malpractice?

In the state of California, if you plan to sue a doctor for potential medical malpractice, the doctor (defendant) is required to be formally notified about your (plaintiff) intention to file the case. The defendant needs to be given at least 90 days of intimation before filing the lawsuit.

You do not require a particular form or format for intimating the defendant, but the defendant should be informed:

  1. What is the legal basis of the claim?
  2. What type of injury and loss was sustained?

It is not hard to sure for medical malpractice, but it is important that you follow the statute of limitations with regards to the filing of a medical malpractice lawsuit.

The statute of limitations in California requires a medical malpractice lawsuit to be filed within three years of the date of receiving the injury or within one year of discovering the injury (whichever occurs first).

Therefore once you have discovered that you have been injured by a doctor or professional medical care provider’s mistake or that you are suffering from a health condition because of their mistake, you need to file your medical malpractice lawsuit within a year from then.

However, if it is over three years since the alleged malpractice, then you cannot file the lawsuit against the doctor or medical care provider.

In the case of Minors, the statute of limitations allows the filing of a lawsuit within three years from the date of the alleged malpractice.  If the minor was less than six years old at the time of the injury, the lawsuit needs to be filed before the minor’s eighth birthday.

What type of damages can a patient sue for? How much do you get for a Medical Malpractice Lawsuit?

Victims of medical malpractice in California can file a medical malpractice lawsuit and recover damages which include, but are not limited to:

  • Medical bills of the patient,
  • Cost of Home health care,
  • Cost of therapies undertaken, Physical and occupational.
  • Loss of wages and future income
  • Psychological pain and suffering

In California, there is a cap of $250,000 on non-economic damages in medical malpractice lawsuits.

What are Non-economic damages? Non-economic damages include losses like psychological pain, suffering, living with physical impairment, loss of enjoyment of normal life, loss of consortium, etc.

A plaintiff can ask for compensation of these non-economic damages, but there is a cap.  This means that even if the plaintiff is able to prove that medical malpractice was committed and wins the trial, they won’t be able to receive more than $250,000 in non-economic damages.

This cap is not applicable to economic losses like medical expenses, loss of income, and loss of ability to earn, etc. which is a result of medical malpractice.

For such economic losses, the plaintiff can be awarded any amount without any cap, to compensate for the damages suffered.

How do I file a Medical Malpractice lawsuit?

Bringing in a medical malpractice lawsuit is very difficult and requires adequate knowledge and expertise. The law is strictly regulated by a complex body of rules, which is different for each state; therefore it is very important to get advice or representation from a professional, well experienced medical malpractice lawyer or medical malpractice law firm.

A professional lawyer understands the law and the statute of limitations associated with it. They understand the need to follow all the required steps for filing a medical malpractice lawsuit to ensure a successful filing. The basic steps involved in filing a medical malpractice lawsuit are:

  • Contacting the Medical caretaker involved to get a complete understanding of what might have gone wrong resulting in the injury and if anything can be done to remediate it. In most cases, the doctors and hospitals are ready to rectify the problem or offer a solution to the issue.
  • If contacting the medical practitioner did not help, the next step is to contact the concerned Medical Licensing Board which is responsible for issuing medical licenses. The board cannot order the professional to compensate but can issue warnings to the concerned doctor or practitioner.
  • Ensure that the claim is being filed in accordance with the statute of limitations and other laws regarding medical malpractice of the respective state.
  • Many states require the filing of a “certificate of merit” before the medical malpractice lawsuit The certificate is used for determining that the injuries suffered by the patient were a result of negligence by the medical care practitioners. A medical professional reviews the medical records and history of the patient and then certifies that the original medical practitioner had deviated or not followed the stated medical practices, which resulted in the injuries. The medical malpractice lawyer hired by you can file this certificate of merit to confirm that your filing a lawsuit has merit.


Hiring the best medical malpractice law firm

Hiring the services of Khashan Law, the best medical malpractice law firm in California, can help make the big difference between you being duly compensated for your injuries or you’re losing your case.

Our team of experienced lawyers will discuss the strengths and weaknesses of your case and then accordingly advise you on the way forward. Contact us for a free, confidential consultation on (951) 461-2387.