Legal Question in Medical Malpractice in California

Any attorney will say you need to read (or obtain) a copy of the consent to treat (or similar form). It may require mediation as a preliminary step, then arbitration. Consult with a good medical malpractice attorney in your area for specific advice, like Josephs and Blum in San Francisco.

Kevin B. Murphy, B.S., M.B.A., J.D. - Mr. Franchise

Franchise Attorney

Of course.

If you are claiming malpractice, your claim must be supported by the opinion of a doctor who is an 'expert' in that field of medicine, who is prepared to testify in court that there was medical malpractice, meaning your treatment fell below the acceptable standard of care and caused the damage or death. Neither your opinion about malpractice, nor mine, is relevant or 'proof' of malpractice. You are not supposed to file suit without having that expert opinion available. Consult with your other treating doctor[s] to see if they are willing to provide that opinion and testimony, or you can contact independent experts for that purpose. I can provide referrals and assistance if necessary. Then, if you obtain such an expert's testimony, and if you determine that you have a case with MERIT [provable malpractice and a likelihood of winning], VALUE [substantial provable damages] and COLLECTABILITY [defendant with substantial assets or insurance], then you would have proper grounds to bring your legal claims in a lawsuit. Keep in mind that you have only one year maximum from 'notice' or learning of the malpractice to bring suit. That can be extended for up to 90 days by timely sending them a 'notice of intent to sue' before the year runs out.

If you feel you meet the requirements, and if this case is in SoCal courts, then feel free to contact me to discuss the facts.

Yes, there are prerequisites. If you are doing this on your own....why?

Best,

Daniel Bakondi, Esq.

[email protected]

415-450-0424

The Law Office of Daniel Bakondi, APLC

870 Market Street, Suite 1161

San Francisco CA 94102

http://www.danielbakondi.com

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Yes, there is a procedural prerequisite, set forth in CCP Section 364: the "so called" "90 day Notice Letter, or Letter of Intent. If a 90 day letter is sent in the last 90 days before the ONE YEAR period of limitations expires, it extends the period of limitations an additional 90 days. If sent more than 90 days before the period of limitations expires, it has no effect whatsoever. The letter is statutorily required, but is not jurisdictional, meaning that, if you fail to send the letter, it does not result in dismissal of the claim which is otherwise properly filed. Failure to send the letter may, however, result in the imposition of sanctions by the State Bar. In addition, it may show the defense that the attorney or party has an understanding of the way in which these cases are supposed to be managed.

Contrary to a response above, there is NO legal requirement of an opinion from a qualified medical expert before filing. In 1975, the MICRA package of legislation affecting medical malpractice litigation included a requirement of a "certificate of merit" before filing a malpractice action, but that very sensible rule "sunsetted" three years later, and has not been required by law since. As a very practical matter, you should secure the opinion of an expert willing to testify at some point very early on in litigation, if not before.

Nor is it particularly important to determine in advance whether there is a binding Arbitration agreement. It might be good to know, but it really has little impact on the merits of the claim, and is certainly not something which is required as a pre-requisite to filing. If you are bound by an arbitration agreement, the defense will let you know. With certain insurance carriers who require arbitration -- i.e.: CAP/MPT, they may demand, and be able to enforce the requirement of arbitration, but they will let you know whether they intend to arbitrate the claim or not. I actually think that you may be better off in arbitration, since juries do not understand the technical medical claims, and are likely to be swayed by the urban mythology that there are too many malpractice claims filed, and that they drive up the cost of medical care. Arbitrators are likely to be smarter about those issues, but may also be looking for repeat business by finding against Plaintiffs. In the hands of a competent malpractice attorney, you may be better off in arbitration.

But, clearly, medical malpractice claims are difficult, expensive, and have a poor chance of success in front of juries. When I lecture to attorneys on the handling of malpractice litigation, I advise that it is a lot like smoking: bad for your health. If you don't do it, don't start. Leave it to a qualified specialist. My office does a great deal of this work, and would be happy to talk to you.