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Medical Malpractice FAQ

Medical Malpractice FAQ

Answers to Common Medical Malpractice Questions

Medical malpractice is a complex area of law filled with technical legal and medical information.

As a firm that has represented victims for decades, Bostwick & Peterson, LLP knows medical malpractice litigation can seem daunting. We take the time to ensure our clients understand their rights, the process, and what we are doing to help them obtain the outcome and compensation they deserve.

While medical malpractice matters are very fact-specific and best understood in the context of your specific situation, there are some general concepts worth knowing as you explore your rights and options or embark on your journey in pursuing a claim.

What Is Medical Malpractice?

Medical malpractice lawsuits are civil legal actions that seek accountability for injuries or death caused by a health care provider who failed to meet the standard of care.

The standard of care may be different depending on the circumstances of a case, including the type of medical professional, the patient’s medical condition and medical history, and treatment provided. However, it is generally defined as a provider’s duty to act within the accepted standards of their profession / specialty, and in a manner that other reasonably skilled, careful, and knowledgeable providers would act.

When bringing a medical malpractice claim, plaintiffs will need to prove a few essential elements. This includes proving that:

  1. The provider owed the patient a duty of care.
  2. The provider breached their duty of care, typically due to negligence / medical errors.
  3. The provider’s medical negligence was a substantial cause of the plaintiff’s injury; and
  4. The plaintiff suffered actual damages as a result.

In addition to proving negligence (breach of duty), plaintiffs must also prove causation and damages.

In other words, they must be able to prove that a medical provider’s substandard care was more likely than not the cause of their injuries and that had a provider acted in a manner a reasonably skilled and careful provider would be expected to act, the patient would not have suffered the injury they did.

Proving causation will often require plaintiffs and attorneys to work with medical experts who can opine (state their opinion) about how treatments aligned with the acceptable standard of care would have avoided the injuries suffered by the patient.

What is California’s Medical Malpractice Damages Cap?

California is one of several states to impose a cap on damages available to victims in medical malpractice lawsuits. This cap places a $250,000 limit on non-economic damages, which include intangible losses such as:

  • Pain and suffering
  • Physical or mental impairment
  • Loss of quality / enjoyment of life
  • Loss of consortium

Damages caps have long been controversial, and many argue that they remove decision-making power from juries and arbitrarily limit the rights of victims to recover fully for their non-economic losses. Damages caps also affect only the most seriously harmed – including seriously injured victims and grieving families who endure the most profound emotional injuries.

While victims’ advocates continue to fight for the abolishment of damages caps, they remain the law in California medical malpractice cases. This makes recovering full compensation for economic damages, which do not have a cap, all the more important.

At Bostwick & Peterson, we know our clients depend on full and fair financial recoveries to help them through the years to come. It is why we work diligently to build the strongest possible claims and to help our clients fight for the maximum compensation possible.

How Do I Know If My Doctor Was Negligent?

Determining when a provider’s actions rose to the level of medical negligence will depend on the specific facts of your situation and what occurred prior to the injury.

By investigating what happened, reviewing medical records, and working with medical experts who help us evaluate the quality of care provided by medical professionals, our team can help patients and families better understand if negligence may have played a role in causing their injuries.

Per California Civil Jury Instructions (CACI No. 501), medical negligence occurs when:

A provider fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful providers / specialists would use in the same or similar circumstances.

A departure from the standard of care can take many forms. For example, it may involve surgical errors that no reasonably careful surgeon would make, such as leaving a medical instrument in a patient’s body, a medication error involving unsuitable drugs at excessive dosages, or a birth injury caused by a failure to treat a routine maternal infection or a failure to promptly deliver a baby.

In many cases, identifying whether a physician or health care provider was negligent is not so clear and obvious. In matters involving failures to diagnose or emergency room errors, for example, providers may argue that they acted within accepted standards when diagnosing and treating patients, or that the patients would have suffered the same injuries regardless of the provider’s actions.

What Compensation Can I Recover?

Medical malpractice victims have a right to recover financial compensation for their damages, including:

  • Hospital and medical bills
  • Future medical care, rehabilitation, therapy, and treatment
  • Special accommodations, assistive care, medical devices, and medications
  • Lost income and lost future wages
  • Physical pain and suffering*
  • Emotional suffering*
  • Other economic and non-economic damages.

*See Medical Malpractice Damages Cap question for more detail.

If you have additional questions about medical malpractice lawsuits in California, or wish to discuss the specific facts of your case confidentially with one of our San Francisco attorneys, please call (888) 831-8448 or contact us online.



What Sets Bostwick & Peterson, LLP Apart?

  • More than $1 billion recovered for our clients
  • Since January 2018, the firm has twice broken the California record for the largest medical malpractice settlement
  • James Bostwick was named Trial Lawyer of the Year by Best Lawyers® in 2012
  • James Bostwick is a Nationally Certified Specialist by the American Board of Professional Liability
  • Included in the list of "Best Lawyers in America" by U.S. News - Best Lawyers® since its inception in 1983
  • James Bostwick received the Trial Lawyers "Presidential Award of Merit"
  • James Bostwick is a member of the Inner Circle of Advocates, limited to the nation’s top 100 plaintiff lawyers
  • Record-setting verdicts and settlements in five states for medical malpractice and motor vehicle accidents
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