MEDICAL MALPRACTICE
A. AN OVERVIEW OF THE LAW
Sometimes doctors, nurses or other health care providers make mistakes.
Unfortunately, their mistakes can have serious consequences for patients or the
patients’ family. When injury or death takes place because of such mistakes, you need
experienced, competent representation to pursue appropriate claims.
My firm concentrates on medical malpractice issues and represents only patients
and their families. I have been a specialist in Obstetrics and Gynecology for more than 20
years. I also have experience in General Surgery, Emergency Medicine, and Internal
Medicine. Prior to medical school, I worked as a Surgical Assistant and Male Nurse. In
addition, I work with a team of medical experts to investigate each potential case. After
thorough preparation and investigation of the medical issues, I then collaborate with
reputable trial attorneys to expertly follow malpractice cases through jury verdicts,
arbitration awards and settlements.
In order to file a professional negligence case, four elements have to be present for
the courts to consider the case. The elements for a cause of action in a malpractice case
are: (1) the duty of the professional to use such skill and diligence as other members of
his profession commonly possess and exercise; (2) a breach of that duty; (3) approximate
causal connection between the negligent conduct and the resulting injury, and (4) actual
loss or damage resulting from the professional’s negligence.
1. Negligence:
Medical malpractice is defined as the failure on the part of the health care provider
(doctor, nurse, hospital) to exercise that degree of care commonly exercised by other
health care providers in the community under the same or similar circumstances. You
need not prove that the health care provider intended to harm the patient; negligence is
not an intentional act. When there is more than one medically acceptable way to treat a
patient or to perform a surgery, the fact that most doctors do it a certain way does not
mean a doctor has committed malpractice if he chooses to follow another, lesser but
recognized, method. In other words, a difference in medical judgment is not malpractice.
In pursuing a malpractice case it is essential to secure the services of one or more
expert witness. Since neither the patient nor the patient’s family are physicians, it really
does not matter what they think was done wrong. The successful prosecution of the case
requires an expert in the same medical specialty as the potential defendant to give
testimony that the medical treatment fell below the applicable standard of care. I have
been a physician and surgeon close to 30 years and have been on staff in many of
Southern California’s finest hospitals and medical centers. This experience allows me to
screen your medical records, hospital records, and related documents for their merit first,
before selecting appropriate experts. I will only advise you to go ahead with the suit if all
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of us agree that your case has merit. Finally, appropriate paperwork, such as an
agreement to employ and fee agreements, is completed and an “intent to sue letter,” also
called the “90 day letter,” is mailed to the appropriate parties.
2. Damages:
The California law applicable to medical malpractice claims is known as MICRA
(The Medical Injury Compensation Reform Act). Since the mid 1970s, it has established
certain limitations on the amount of damages that may be recovered. Damages are
allowed for medical expenses and loss of earnings, as well as for impairment of earning
capacity. In a wrongful death case damages are also given for the loss of support each
heir has suffered. These are referred to as economic damages.
The law recognizes a second category of damages, called non-economic damages.
These are damages to be determined by the jury to compensate the patient for such items
as pain and suffering, physical and mental injuries, permanent disability, and emotional
suffering. In a death case these damages also include loss of love, society and comfort.
Our law limits non-economic damages (pain and suffering) to $250,000. This is true even
in a death case where the limit applies for non-economic damages on behalf of the heirs.
The spouse of an injured patient also is entitled to claim damages for loss of
consortium. This means essentially a claim for the loss of the injured spouse’s
companionship, as well as for the loss of that spouse’s domestic services. The law places
an additional $250,000 limit on a loss of consortium claim.
3. Informed Consent:
A healthcare provider has a duty to obtain the consent of a patient before
performing a surgical procedure or rendering a particular form of treatment. A patient
must be informed of risks commonly encountered so that in agreeing to the procedure he
is truly able to give an informed consent. This is known as the Doctrine of Informed
Consent. In the representation of our clients we generally make a dual claim: for medical
negligence, as well as for failure to obtain an informed consent from the patient. Just
because a patient consents to a surgery does not mean that the patient consents to it being
negligently performed.
4. Statute of Limitations:
There are a number of other requirements under the law in terms of when the
lawsuit must be filed. This is known as the Statute of Limitations and may vary based
upon the facts in the case although, generally, a suit must be filed within one year
from the date of injury or death. Sometimes additional time is allowed when there is a
delayed discovery of the fact that the doctor was negligent. This technical area demands
expertise, and often time is an important fact. Different time limits apply to minors. There
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are additional requirements when the health care provider is a governmental entity such
as a County Hospital, the Veterans’ Administration, or a Hospital District.
B. DO YOU HAVE A VIABLE CASE?
1. Obtaining Records:
The first thing we do in ascertaining the potential for a case is to ask the
prospective client to prepare an outline of the facts in chronological order. By giving us
this information, including the names and addresses of the doctors and hospitals and all
applicable dates (to the best of the client’s recollection) the client enables us to make a
preliminary determination as to how best to proceed. If the basic facts suggest there is a
viable case, we have the client sign medical authorizations so that the pertinent records
can be obtained through a photocopy service.
2. Medical Review:
I then personally review the medical records to see if probable cause exists to
conclude that malpractice has occurred. If the claim is meritorious, the medical records
will be given to the most appropriate expert for review and consultation. If the expert and
I agree with the medical negligence issue, we then take appropriate steps to get the
lawsuit on file.
3. The Health Care Provider Must Approve Any Settlement:
As you can see, this is a careful screening process. Malpractice cases generally
are time consuming and expensive to pursue. We want to be sure that we have a viable
case with appropriate expert support before undertaking the representation of a client.
You can be sure that the defense will have some experienced experts of their own to
counter our experts. It should be noted that before a case can be resolved by settlement
(in our experience most of our cases do settle short of trial) the health care provider must
consent to the settlement. Why?
Under our law, all settlements, arbitration awards, or verdicts in excess of $30,000
must be reported to the State Medical Board. A physician does not lose his license to
practice for an occasional act of negligence; the best doctor can occasionally make a
mistake. A doctor, however, can lose his license to practice or have it suspended for a
period of time if he is found to have been guilty of gross negligence or medical
incompetence. The State Board does investigate each case and reserves the right to call
the physician to appear before a review panel (Bureau of Medical Quality Assurance) to
show cause why his license should not be suspended or revoked. Thus, insurance policies
for doctors generally have a clause requiring the doctor’s written consent to any
settlement in excess of $30,000.
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C. WHAT ABOUT ATTORNEY’S FEES AND COSTS?
Attorney’s fees are on a contingent fee basis. This means that if there is no
recovery, no fees need to be paid to the attorneys. However the costs of prosecuting the
case are the responsibility of the client. On occasion such fees are advanced by the law
firm. These costs include such things as Court filing fees, photocopying of medical
records, depositions, and expert witness fees, as well as other court costs. When a
recovery is obtained, these items are reimbursed to the attorneys. After the deduction of
costs, the balance of the recovery is subject to attorney’s fees as provided by law.
Presently, the law provides for a contingent fee of 40% of the first $50,000 of recovery,
33 1/3% of the next $50,000, 25% on the next $500,000, and 15% on any amount in
excess of $600,000. We keep track of costs advanced and although we attempt to hold
costs down, we do spend what we deem necessary for the proper preparation and
prosecution of the case. Additional fees apply in the event of an appeal. There are no
additional fees created by my association with another law firm.
D. WHAT HAPPENS NEXT?
Once all pertinent records and any applicable x-rays or other studies have been
obtained and reviewed, a lawsuit is prepared, filed and served upon the defendants.
Their insurance carriers will retain counsel to represent them and a responsive pleading
called an Answer To Complaint is filed. The case is then considered to be “at issue” and
will soon be set for a Status Conference by the trial judge. At that time, a trial date and a
settlement conference date are generally scheduled. The lawsuit must be filed within the
court district where the injury or death occurred. Although there are some exceptions
and some rules which give priorities, it generally takes some 12 or more months to get a
trial date. In the meantime, a number of things take place. These include discovery
proceedings, which take several forms: to include interrogatories (questions to be
answered under oath in writing); depositions (the taking of pretrial oral testimony in the
presence of a court reporter); defense medical exams where applicable, notices to
produce documents for inspection, disclosure of expert witnesses and taking their
deposition, settlement conference(s), and court Status Conferences. You will, of course,
be assisted at every step of these pre-trial proceedings. We are always available to
answer any questions.
E. KNOWLEDGE AND EXPERIENCE COUNT
Medical malpractice cases are generally considered to be the most difficult, time-
consuming and expensive cases trial lawyers handle. Statistically about 70% of the
malpractice cases that go to trial are won by the defendant doctor. For that reason you
need to hire a law firm with proven experience, available experts, financial backing and
courtroom experience to prepare and, if necessary, to try your case. I will work with a
firm most experienced in your area of malpractice. My firm, Gunther Rene Bauer M.D.,
J.D. provides the necessary medical knowledge within the legal framework. When I
operate in the hospital, I am only assisted by other surgeons whose skill and knowledge I
know, whom I can trust and rely on to give me their very best during the operation. So
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too, I only associate with law firms I can trust, with attorneys who concentrate on
medical malpractice cases and have a track record of successfully litigating medical
malpractice cases. Attorneys who defend healthcare providers are very skilled and have
many resources available to them. For that reason, it is very important to associate only
with a firm that is respected, and well-known to the defendant’s firm as experienced,
knowledgeable and tough. This gives you, the client, the best chance for a satisfactory
settlement and, if the case doesn’t settle, a much better chance to succeed at trial or
arbitration. In other words the road to success is preparation, preparation, and more
preparation.
F. FINAL THOUGHTS
People involved in a malpractice situation have a number of things to worry
about, such as getting better, dealing with disability, or in death cases, dealing with the
loss of a loved one. At least from the standpoint of the lawsuit, let us do the worrying for
you. While I can make no representations or guarantees about the outcome of any case,
please rest assured that we will strive at all times to secure a maximum recovery for you.
The team working for you will be pleased to answer any questions you may have. You
will be informed as to the progress we are making on your behalf. You will, of course, be
apprised of all settlement offers. Cases can only be settled with the clients’ authorization.
If you need more information about me or the law firm I have associated with for this
case, we will be pleased to make this available to you.
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