The reasons behind maintaining a strict medical standard of care are obvious: injury or prolonged illness can result if family doctors, anesthesiologists, obstetricians, nurses and other health care professionals and staff fail to follow accepted procedures. When emergency room errors, failures to diagnose a serious illness or surgical errors harm a patient, the only recourse may be medical malpractice litigation.
California patients often encounter one major exception to the standard process that guides medical malpractice claims. Northern California’s largest medical provider, Kaiser Permanente, requires patients to sign an agreement to resolve medical malpractice disputes via arbitration rather than a potential jury trial in California state court. Kaiser arbitrations are heard by panels of one to three arbitrators, depending on the circumstances and alleged harm.
The goal in a Kaiser arbitration is exactly the same as it would be for any individual or family harmed by medical malpractice: to obtain compensation for harm caused by a medical provider’s negligence that can offset the burdens of resulting medical expenses, lost income and other damages. One important distinction is the necessity of making informed choices when it comes to the arbitration panel, a factor that strongly suggests working with a law firm that has experience in Kaiser arbitrations.
As in any complex legal matter, mastery of highly technical evidence must be accomplished by consulting with medical experts and thoroughly reviewing medical records. Kaiser arbitrations are subject to strict guidelines, and a patient generally must submit a claim within a year of becoming aware that malpractice may have occurred.
Standard California Medical Malpractice Claims
A wide variety of medical errors that occur at non-Kaiser facilities are subject to medical malpractice claims under California law. The most common types of claims involve birth injuries, errors during surgery, mistakes made by emergency room staff, and failures to properly diagnose an injury or illness. To a large extent, the relevant steps in a traditional med mal claim will be relevant to a Kaiser patient who proceeds in arbitration.
The first thing that any potential plaintiff must consider is that medical malpractice claims are time barred under California law. This means that you must act swiftly if you believe that you or a family member was harmed by a doctor, surgeon or other practitioner’s failure to heed accepted standards of care. While medical malpractice statutes of limitation are subject to legal interpretation, the basic provisions define the eligible period as three years from the time of injury and one year from the patient’s awareness of injury.
For a patient’s medical malpractice claim to be successful, four essential aspects of civil liability must be established. The patient (or survivors in a wrongful death case) must prove that the hospital or specific medical professional owed a duty that is susceptible to assessment in light of the standard of care. The plaintiff must be able to provide evidence that indicates a breach of that duty. Further facts must establish the nature of the injury in question, and finally the plaintiff must show that the breach led to the injury.
After establishment of liability, the next vital phase is proof of damages. It is one thing to establish that a medical error such as wrong-site surgery or misdiagnosis caused harm, and another entirely to show the extent to which that mistake has affected a patient. Assessment of damages is specific to both the type of harm and the individual patient, and includes everything from the likely costs of corrective surgery, rehabilitation and adaptive equipment to the value of permanent or temporary lost income.
Contingency Fees and Medical Malpractice Representation
Obviously, mounting a strategic and successful medical malpractice claim takes concerted effort and considerable resources. That is one reason why California law mandates that plaintiffs’ medical malpractice cases be handled on a contingency fee basis.
This means that a client pays no attorney or expert witness fees unless the claim results in a payment of compensation from the caregiver. The lawyer’s percentage of a settlement or jury award diminishes as the amount of compensation increases, beginning with 40 percent of the first $50,000 recovered and decreasing to 15 percent of any compensation in excess of $600,000.
While this may seem like one more complexity in a situation that has already caused a patient or family considerable stress, the fact is that contingency fees empower health care consumers to secure the same level of skilled legal defense that large hospitals and insurance companies enjoy. Best of all, most law firms will assess your potential claim during a free, no-obligation consultation to help you understand your full range of legal options before you commit to a course of action.
If you or a loved one has been injured by a medical error at a California medical facility, a knowledgeable medical malpractice lawyer can help you understand your options. Contact a skilled California attorney who has experience representing clients in both medical malpractice litigation and Kaiser arbitrations today.