Legal Question in Personal Injury in California

My brother-in-law was given the incorrect dosage and his blood level was not properly monitored for a medication called Vancomycin. He was given the drug at the local hospital. He returned to the hospital 2-3 times because he was having a reaction to the medicine. Each time he was told the side effects he was experiencing were normal. By the time he went to a second hospital he almost died from kidney failure due to the high level of Vancomycin in his blood. Does he have a case? We live in a small county in northern California.

Asked on 10/07/16, 3:10 pm

3 Answers from Attorneys

Gerald Dorfman Dorfman Law Office

The medical industry has gotten laws passed which stack the deck against patients in California. They have also gotten laws passed which limit the amount of fees attorneys for victims of malpractice can earn. As a result, many good lawyers have stopped taking malpractice cases, or severely limited the number they take on. You may have difficulty finding a good malpractice attorney in a small county, so you should expand your search area. Regarding the specifics of this incident, it is hard to tell if there is a viable case, but it is worth having it reviewed. Some factors will include the actual damages (is he out of pocket $ for treatment or missed work); will he need future treatment or have future problems; and, most importantly, whether, in fact, any of the medical personnel actually violated the "standard of care". If emergency room doctors were involved, an emergency room physician must be used to prove their violation of the standard of care. Otherwise, any doctor familiar enough with the subject can provide an opinion. Your brother-in-law needs to act quickly, both to preserve evidence and to meet the time deadlines. The deadlines for medical malpractice are shorter than regular personal injury cases.

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Answered on 10/07/16, 4:16 pm
David Lupoff Law Offices of David B. Lupoff

Mr Dorfman gave a very good answer. However, I only have one key question; how are your brother-in-laws kidneys today?

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Answered on 10/07/16, 5:56 pm
Timothy McCormick Libris Solutions - Dispute Resolution Services

To have a case your brother in law would have to prove 1) there was a duty of care owed him and what it was; 2) that duty was breached; 3) that the breach causes harm: and 4) that harm resulted in recoverable damages. For 1) the duty of care is not a duty to provide medical care but rather the duty to carefully follow the standards of the medical profession. Do you have a qualified doctor who will say that the hospital failed to meet the normally expected standards of the medical profession in treating your brother? If no, no case. If yes, the next question is did it cause any actual harm? It certainly sounds like it may have caused short term harm, but anything long term? And what economic damages did he suffer if any? Pain and suffering damages are not only capped by law in med mal cases, they are also virtually always awarded as some multiple of the actual out of pocket expenses or losses. If he has permanent kidney damage, missed months off work, or had huge medical bills, then you have a case that will generate enough damages to be worth pursuing. If he just felt sick, never missed work, and was fine after the second hospital caught the dosage error, then you might have a case, but not one that any attorney could afford to pursue for you on contingency and not one that would make any sense for you to pay an attorney an hourly fee to pursue.

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Answered on 10/11/16, 10:40 am

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