Q: What is medical malpractice?

Medical malpractice, or more appropriately, medical negligence is that type of claim which a victim has available to him or her to pay for a wrong committed by a doctor or other medical professional which has caused bodily harm.

Medical malpractice is much more than the physician or other health care provider making a simple mistake. Malpractice occurs when the health care provider does something that other good doctors would have not done or else fails to do something other good physicians would have done .

No, these are among the most difficult cases for a victim or victim's attorney to win. In California, 9 out of 10 jury verdicts are in favor of the doctor .

In order to bring a malpractice case to trial, it is necessary to have expert testimony describe what was done wrong and how it could have and should have been avoided. Good reliable experts are expensive and difficult to find. Often, doctors in the community won't testify against one of their own colleagues and out of town doctors have to be brought in to testify.

When the victim does win, the amount that victim can obtain is severely limited by legislation which was passed under heavy lobbying by the insurance industry and medical community.

While a malpractice case may settle before going to trial, the insurance company cannot settle the case without the doctors' consent. Doctors in most cases are unable to admit that they are capable of making a mistake. Without the doctor's consent the case cannot settle no matter how much the patient and the doctor's insurance company may want to settle it.

In addition, there is a whole category of medical malpractice cases that never go to trial, but instead are resolved through binding arbitration. Many hospitals and doctors have the clients sign an agreement to go to binding arbitration if there is any dispute. These agreements are often in fine print in the initial papers the patient fills out when they first see the doctor or when they are initially admitted to the hospital. Often, the patient doesn't realize that he or she has signed a binding arbitration agreement until there is a problem and the lawyer finds this clause buried in the patient's medical records. These binding arbitration clauses are usually iron clad .Courts have found them to be enforceable not only against the patient, but also against the patient's spouse and unborn child !

In California, if the patient concedes that there case is worth less than $200,000.00, then the case is decided by a single arbitrator selected jointly by all parties.

If the patient believes their case is worth in excess of $200,000.00, the case is decided by three arbitrators: One selected by the patient, one selected by the health care provider and a neutral arbitrator mutually agreed upon by both sides.

Because arbitrators charge several hundreds of dollars an hour for their time, arbitrations can become very expensive.

Additionally, most arbitration clauses patients sign provide that each side bears their own cost. That means that even if the patient wins their medical malpractice claim, they still have to pay all of the costs for the experts and the arbitrators out of their own pockets. This is different from most trials where the victim's attorney tries to shift the costs to the defendants if the victim wins the trial.

Regardless of the age of the victim or the severity of the injury, the most any victim of malpractice can get for his or her pain and suffering is $250,000.00 in California. So, even if a baby is born permanently blind and paralyzed because of a doctor or hospital's mistake, the most that infant can expect to get for its lifetime of pain and suffering is $250,000.00.

Efforts have been made to remove this harsh cap, but as recently as a few months ago the California legislature voted down bills to increase this ceiling.

In addition to this $250,000 limit for pain and suffering, there is no limit on how much the victim can get for future medical expenses or future lost wages.

Yes, perhaps the harshest limit is the statute of limitations. In the United States, California has the shortest time limit in which a victim can assert a medical malpractice claim.

Generally, if a victim doesn't takes steps to formally preserve his or her claim for malpractice, all rights to bring any lawsuit will be lost one year after the patient discovers the injury , or three years after the date of the injury, whichever occurs first.

There is an exception to this rule for minors, or if the health care provider committed fraud or in the unusual situation where the doctor left a foreign body inside of someone during surgery.

But again, generally there is a very limited window of opportunity for a victim to bring a malpractice claim so if someone thinks they have been permanently injured by a doctor, they should consult a good attorney right away.

Because of the large expense involved in hiring experts and bringing a malpractice case coupled with the difficulty in winning these cases, only the most seriously injured victims' claims can be pursued .These cases are extremely hard fought and more emotionally taxing for the client than almost any other type of litigation.

If the victim suffered a severe , permanent injury, a malpractice attorney will read and summarize all of the person's medical records to make an initial determination as to whether there is a viable case. Often, the attorney will do medical research to assist in the initial evaluation.

Before bringing a malpractice lawsuit, a competent and ethical attorney will first have the medical chart reviewed by a qualified expert to make sure that there is a case.

It is impossible to ascertain the merits of a medical malpractice lawsuit without extensive investigation, research , evaluation and consultation with medical experts.

Attorneys are hired on a contingency fee basis. That means the victim does not have to pay the attorney by the hour for his or her time. Attorneys' fees in medical malpractice lawsuits are set by statute in California. The fees are forty percent (40%) for the first $50,000 recovered and goes down from there on a graduated scale where at the top end the attorney receives fifteen percent (15%) for any sum in excess of $600,000.00.

But remember that in addition to the attorneys' fees there are also a lot of expert costs associated with malpractice cases. These are separate and apart from the attorneys' fees. On a case by case basis attorneys make different arrangements for payment of expert costs.

Make sure that the attorney devotes a substantial part of their practice to medical negligence claims and that he or she has done so for a number of years.

Ask the lawyer about other medical malpractice cases he or she has handled. If he or she hasn't handled a case involving your same scenario before, has he or she had one that involves the same specialty? If so, ask them to describe it .

Ask the attorney if he or she has taught medical malpractice to other attorneys or authored any books or articles in the area. If not, what does the attorney do to keep abreast of changes in both law and medicine?

Is the client expected to pay for the initial expert's evaluation? If so, who much will it cost and when is the money due?

Will the case be handled by the attorney personally or will it be handled by an associate? If handled by an associate, what experience does the associate have and how much direct involvement will the primary attorney retain in the case?

What kind of experts will the attorney retain to review the file? Ask to see the experts' curriculum vitae (resume) to make sure the expert has a solid background .

This final issue is the most important factor . The investment both the victim and the attorney will make in pursuing the case will involve a tremendous amount of effort, time and resources. Given how difficult medical malpractice cases are to win, the client should make every effort to ensure they have a solid case before proceeding forward.

From society's point of view the filing of a claim which ultimately cannot be proved hurts the civil justice system and will be used to attack the system by those who try to eliminate the rights of victims.

Lastly remember that this is a claim that is about to be asserted against a professional for failure to properly carry out his or her duty. This step should never be taken lightly.