Personal Injury Lawyer Blog
The statute of limitations is a big issue in medical malpractice cases. In Sacramento, a victim must begin the legal process within one year from the date the injury was discovered. In some cases up to three years grace period is granted. Cal. Civ. Proc. Code § 340.5 (West 1992)
In cases of a retained foreign body, such as a sponge left inside the body during surgery, the claim can reach for as long as it takes the claimant to discover the entity. Ashworth v. Memorial Hosp. of Long Beach, 206 Cal. App. 3d 1046, 254 Cal. Rptr. 104 (1988), rehearing denied, March 23, 1989. – See more at: http://www.mcandl.com/california.html#sthash.7ENOwq5L.dpuf
Another reason it could take longer than one year is if the complaint is on behalf of a minor child. However, if the child is under the age of six years the action must have commenced within three years prior to the eighth birthday of the child.
An important note here is the statutory period starts for adults at the moment of discovery but for minors it begins at the conception of the negligent act. Some California courts have begun to read a provision into the law here. It adds a provision for children based on the theory that not doing so will deny minor children equal protection under the law. Photias v. Doerfler, 45 Cal. App. 4th 1014, 53 Cal. Rptr. 2d 202 (1996); Katz v. Children’s Hospital of Orange County, 28 F.3d 1520 (9th Cir. 1994). – See more at: http://www.mcandl.com/california.html#sthash.7ENOwq5L.dpuf
Comparative or contributory negligence is a big factor in medical malpractice cases. Comparative negligence says that the plaintiff’s actions were negligent and directly caused the victims injuries. Failure to act responsibly can be considered a negligent act.
Vicarious liability also comes into play in medical malpractice cases. Vicarious liability says that a hospital can be held liable for any and all negligent acts by a doctor. The physician can be an actual or ostensible agent in the negligence. Ostensible agencies develop when the physician knowingly or by some other action causes a third party to believe another is an agent.
Expert testimony is an important part of medical malpractice cases. Medical malpractice cases must be established as prima facie, or with sufficient evidence, when presented in court. In order to accomplish this, a medical expert must present testimony.
Damage caps are a big issue in Sacramento medical malpractice cases. In instances of noneconomic claims, California places a cap on the amount that can be rewarded as compensation. Noneconomic factors are things like pain and suffering. Inconvenience, disfigurement, types of physical impairment and other non-pecuniary injury, are limited to $250,000.
Cases of medical malpractice can be difficult in Sacramento. Moseley Collins is an attorney with years of experience in area medical malpractices cases. The laws are intricate and insurance companies are out only to save as much money as possible. Moseley Collins has the case experience to predict the best course of action for your individual case.