Medical Malpractice

Heirs who filed a medical malpractice wrongful death suit lack standing to challenge the constitutionality of MICRA's limits on noneconomic damages (Civ. Code 3333.2) and attorney fees (B&P Code 6147).  Plaintiffs' attorney had not withdrawn or moved to withraw due to the statutory limits on attorney fees.  Moreover, there is no constitutional right to an attorney in civil litigation.  Plaintiffs… Read More

Patient's lawyer's first letter to hospital was not a notice of intent to sue for medical malpractice under CCP 364; only a later letter provided that notice and extended the limitations period by 90 days.  The first letter was devoted mostly to a request that the hospital preserve its records regarding the incident in which plaintiff was injured by an… Read More

This decision affirms an order enforcing a settlement agreement that resolved 20 medical malpractice actions--even though the agreement for liquidated damages of $50,000 per month up to a cap of $1.5 million if the defendant failed to timely pay the installments due under the $575,000 settlement amount.  The opinion emphasizes that under Civ. Code 1781(b), which applies to contracts other… Read More

The trial court erred in granting defendant summary judgment based on expiration of the statute of limitations (CCP 340.5) in this medical malpractice case arising from a stillbirth following an operation to turn the fetus to a head-down position for birth.  There was a question of fact as to whether plaintiff subjectively suspected malpractice the day before delivering the stillborn… Read More

Summary judgment for defendant hospital is affirmed.  The doctor who malpracticed in conducting an operation on plaintiff at defendant hospital was not the hospital's actual agent.  The contract between the two expressly denied any agency or employment relationship, and there was no evidence that the hospital exercised any control over the manner in which the doctor treated his patients.  The… Read More

A hospital may be held vicariously liable for a doctor's negligent treatment of a patient at the hospital if the doctor is a hospital employee or the hospital's ostensible agent.   Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448; Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631.  Here, the trial court correctly granted the hospital summary judgment… Read More

A medical expert testifying about causation in support of the party bearing the burden of proof in a medical malpractice case must be able to express an opinion “to a reasonable medical probability,” which means more likely than not.  If the defendant tries to prove that something other than its alleged negligence caused plaintiff's injury, it bears the burden of… Read More

Under CCP 425.13, a plaintiff may not bring a claim for punitive damages in a medical malpractice case without first moving for and obtaining a court order allowing her to amend to allege that claim.  The statute also provides that the motion to amend must be brought before the earlier of 2 years from filing of the action or 9… Read More

Under Civ. Code 3333.2(c)(2), noneconomic damages in a medical malpractice case are limited to $250,000 unless the defendant provided services that exceeded "the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital."  This decision holds that section 3333.2 applies to a physician's assistant who has… Read More

Torts, Medical Malpractice, Abandonment of Patient, Reliance on Other's Good Conduct, 1, 1 The trial court did not err in this medical malpractice case in not giving CACI 509, dealing with a doctor's abandonment of the patient.  For the instruction to be applicable, the doctor must accept the patient into his care and then refuse to treat the patient without… Read More

An indigent prisoner filed this medical malpractice case, claiming that the defendant doctor had failed to tighten a screw in the artificial elbow he implanted in plaintiff's right arm, with the result that the screw came loose, causing serious injury to plaintiff's arm.  The trial court denied plaintiff's motion for appointment of a lawyer and a medical expert.  This opinion… Read More

Under CCP 340.5, the statute of limitations on a medical malpractice claim expires at the earlier of three years from the date of injury or one year from the date of discovery.  Injury from the failure to diagnose a latent, progressive condition occurs “when the undiagnosed condition develops into a more serious condition,” and that more serious condition is made… Read More

A 998 offer made jointly to a defendant surgeon and his putative employer was invalid because it required both to agree to the offer.  Consent of a single defendant would be insufficient to accept the offer as presented.  The case illustrates why 998 offers are invalid when made to multiple defendants requiring all to consent.  The putative employer had defenses… Read More

Civil Code section 3333.2 which limits the recovery of noneconomic damages to $250,000 against health professionals in "professional negligence" cases does not apply to claims against such professionals for battery--at least when the battery is the performance of a surgery or other medical procedure to which the patient did not give his consent.  Here, the patient consented to removal of… Read More

A medical malpractice plaintiff provides adequate notice of a potential medical malpractice claim, as required by Code of Civil Procedure section 364, by mailing a notice of intent to file an action to a physician’s address of record with the Medical Board of California. Read More

Plaintiff's medical malpractice suit was untimely, having been filed more than a year after discovery of the malpractice; formal CCP 364 pre-suit notice from her attorney did not extend the limitations period since plaintiff had already sent her own letter which operated as a pre-suit notice despite not being intended as such.  Read More

Defendant hospital was entitled to summary judgment after plaintiff’s expert declaration stated only that husband "could have survived" had defendant treated him in accord with the standard of care—but stopped short of saying that survival was more likely than not but for the hospital’s acts, which is the standard for showing causation in a medical malpractice wrongful death action.   Read More

To reduce a damage award in a medical malpractice case, the defendant may introduce evidence of collateral source payments to plaintiff for medical care including Obamacare and private medical insurance benefits that has already received or likely will receive in the future. Read More

In case involving knee injury that resulted from implantation of medical device, the jury’s award of $5 million in noneconomic damages was excessive and was the result of prejudice caused by misconduct of plaintiff’s counsel in belittling and mocking defendant's witnesses and counsel as well as the trial court itself.  Read More

The one-year limitations period on medical malpractice begins to run when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one, and since the evidence conflicted on this point, the trial court erred in granting summary judgment to defendant.  Read More