Malpractice - An Overview

Our office handles three types of professional malpractice: medical, attorney, and accountant.  These type of malpractice can occur when you engage a professional to help you and the professional harms you by acting in an unreasonable way.

Medical Malpractice

When illness or injury forces you to see a physician or go to the hospital, you can generally be assured that the doctor's years of experience and training will result in excellent treatment of your ailment. But in truth, physicians are only human and errors are always possible. Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient.

Negligence by a medical professional could include an error in a diagnosis, treatment, or illness management. If such negligence results in injury to a patient, a case could arise against the doctor if his or her actions deviated from generally accepted standards of practice or against the hospital for improper care, such as problems with medications, sanitation or nursing care.

Medical malpractice laws are designed to protect patients' rights to pursue compensation if they are injured as the result of negligence. However, malpractice suits are often complex and costly to win. While theoretically, you can seek compensation for any injury caused by negligence, regardless of its seriousness, time and money make it unrealistic to sue for an injury that is minor or resolves quickly. Therefore, if you believe you have a medical malpractice claim, it is important to consult with an attorney who can help you determine whether your claim is worth pursuing.

Theories of Liability in Malpractice Cases

Negligence: Most malpractice cases proceed under the theory that a professional was negligent in treating the patient or representing the client. To establish medical negligence, the plaintiff must prove:

• The existence of a duty owed by the professional to the plaintiff (for example, a doctor/patient relationship);
• The applicable standard of care, and the professional's deviation from that standard, which is deemed a breach of the duty owed the plaintiff;
• A causal relationship between the professional's deviation from the standard of care and the injury; and
• Injury to the plaintiff.

One of the most important aspects of a malpractice action is establishing the standard of care to be applied to the professional. Medical professionals are often heard to refer to medicine as an art, rather than a science, and although errors in judgment may result in injury to a patient, not all medical errors are actionable as negligence.  This is also true for legal and accounting errors.

To find a professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of professional care. To establish the standard to be applied, a plaintiff must present the testimony of another expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those recognized in the profession as being competent and qualified to practice. The plaintiff will have to present expert testimony not only as to the applicable standard of care, but establishing that the defendant failed to meet this standard.

Another element of malpractice actions, causation, is sometimes challenging to establish. Specifically, the plaintiff must show that the defendant’s deviation from the applicable standard of care resulted in his or her injury. This is challenging because sometimes, the professional’s deviation from the standard of care may not have caused the plaintiff's eventual injury, and vice versa.
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Negligent Prescription of Medications or Medical Devices

A medical professional may be held liable for the negligent prescription of a medication or medical device if he or she ignored the manufacturer's instructions, or prescribed an incorrect medication or dosage, which resulted in injury to the patient. In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn of potential side effects or dangers of the drug. In most cases, the prescribing physician is considered a "learned intermediary," which means that because of his or her superior medical knowledge, and the fact that he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.

Legislation Affecting Malpractice Actions

Due to the power and resources of the health care industry, California has passed legislation making it more difficult to bring and prevail in medical malpractice actions.  Physicians and hospitals are protected by legal limits, called "caps," on the amount of damages that can be awarded in malpractice suits.

Potential Defendants

Medical malpractice can be committed by several types of health care professionals and, in a case where a hospital employee commits malpractice, the hospital itself may be held liable under the legal doctrine of "respondeat superior." Under this theory, an employer may be held liable for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligent act or omission occurred. This doctrine is very important to plaintiffs in medical malpractice cases, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

In some situations, commonly involving attending physicians working in hospitals, health care providers are considered independent contractors rather than employees, which makes the doctrine of "respondeat superior" inapplicable. What this means is, if a doctor or other health care professional is an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. However, the hospital can be held liable for its own negligence, for example, in granting attending privileges to an unlicensed or incompetent physician.

Attorney/Accountant Malpractice

People hire attorneys and accountants to handle matters that they are not qualified to handle themselves.  Professional malpractice occurs when a negligent act or omission by a professional results in damage or harm to a client.

Negligence by an attorney could include things like missing a statute of limitations or preparing documents in a faulty way.  Negligence by an accountant could include things like mis-valuing a business or preparing taxes in such a way as to cost the client more money than necessary.
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Conclusion

In general, there are no guarantees of medical results. An unanticipated or unsuccessful result from medical treatment or surgery does not, in itself, mean that medical malpractice has been committed. Nonetheless, if you believe you may have been the victim of medical malpractice, you should meet with an experienced attorney as soon as possible to discuss the facts of your case and receive a professional evaluation of your situation.

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Serving the greater San Francisco Bay Area including, but not limited to, San Francisco, Oakland, Marin, Napa, Walnut Creek, Concord, Sacramento and the counties of Solano, San Joaquin, Stanislaus, and Yolo.

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