Pursuant to the Hippocratic Oath, all physicians vow to"prescribe regimens for the good of patients and never do harm to anyone." Unfortunately however, sometimes patients do suffer harm at the hands of their physicians, either due to an overt act of the physician (e.g., removing the wrong limb) or the failure to act (e.g., the failure to diagnose a condition). Whether that harm or injury justifies a medical malpractice ("med-mal") claim, however, requires an in-depth analysis of the particular situation.
Initially, not all injuries resulting from medical care give rise to a med-mal claim. Contrary to general perception, the practice of medicine is an art, not a science ten different doctors could give a patient ten different diagnoses and treatments and they could all be reasonable under the circumstances. A med-mal claim exists only where the physician's act or failure to act "falls below the standard of care in the relevant community." This means that if nine of the 10 physicians would treat one way, and the tenth treats a different way and an injury results, the actions of the tenth may fall below the standard of care and give rise to a claim. It is the patient's burden to prove the elements that (1) he suffered an injury, (2) the injury was caused by the physician and (3) the physician's acts were below the standard of care.
Med-mal cases are inherently complicated because they usually deal with medical issues that only physicians can explain. This also makes them very costly because they require the employment of expert witnesses physician's themselves to testify as to the existence or non-existence of an element.
In addition, there are numerous restrictions on med-mal actions under California law. Some of the more significant are:
_ A $250,000 limit on non-economic damages (i.e., pain and suffering). Meaning that regardless of the extent of injury (up to, and including, death), compensation for pain and suffering is limited to $250,000. Economic damages such as lost earnings, medical care and other costs are not limited.
_ A physician may introduce evidence of, and be allowed a credit for, benefits given to the injured patient by his own insurance or through public-based programs. In other personal injury actions, a defendant cannot claim such a credit.
_ The amount an attorney can charge to handle a med-mal claim is set by statute and severely limited, often up to one-half of the fees recoverable in other personal injury actions.
_ If economic damages exceed $50,000, the physician (or more accurately, the insurance carrier) may elect to make periodic payments.
The complicated nature, high cost, legal restrictions and potential for large awards usually mean that med-mal claims will be heavily contested by the physicians and their insurance carrier.