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Issues in Malpractice: Determining Harm

MalpracticeIt is an extremely common occurrence for an average person to experience a doctor’s medical mistake, and to think this entitles them to compensation. However, California law specifies that four criteria must be established in order for a patient to successfully allege malpractice or negligence, and the issue of harm done is one of them. If you or a loved one has been injured by medical error, you may have a case, but you must be certain that what you experienced was, in fact, an injury under the law.

California Medical Malpractice Law

There are four showings you must make as a plaintiff, under California law, to be able to hold a medical professional liable for malpractice. The first is to show that a duty of care existed between the defendant (the doctor or hospital you are bringing suit against) and the plaintiff (you or your loved one). In many states this must be proven, but in California it is established by law, meaning you can merely point out that you were the a patient of the doctor or hospital in question.

The second and third showings you must make are to establish that the duty was breached, and, specifically, that it was breached by the defendant’s conduct. Most often, breach and causation can be shown by articulating the standard of care to which medical professionals are expected to adhere, and showing that no other action could have caused the breach of duty that occurred, save for the defendant’s. It may be easy to prove that a medical error occurred that was not in keeping with the standard of care to which physicians are held, but that is not what will render judgment in favor of the plaintiff.

Medical Errors vs. Harm Caused

The fourth showing, and the essential crux of your argument for liability, is to prove that you or your loved one actually suffered harm as a result of the doctor’s actions. While this sounds easy in theory, it can be very difficult in practice. The Agency for Healthcare Research & Quality (AHRQ) reports a direct correlation between certain types of medical errors and patient harm, but the important conclusion drawn is that this was established only for certain errors, most often pharmaceutical- and medication-related. Thus, if you believe you were the victim of another type of error, it may be more difficult to establish, with less statistical evidence to back up your assertion.

Generally speaking, medical negligence is held to have caused harm if excess physical or emotional injury, financial burden or other tangible negative is suffered by the patient as a direct result of the doctor’s actions. In theory, all harm can qualify to allege negligence, but in reality, no court will countenance a malpractice action if the harm suffered is minimal. In other words, a doctor’s conduct that results in a post-traumatic stress disorder (PTSD) diagnosis, or a significant physical injury, may be compensable, while a doctor’s mistake that led to temporary soreness or minor bruising is less likely to be. This is out of pure public policy considerations - the cost of such a suit would far outstrip any actual damages likely to be recouped.

Speak to a Malpractice Attorney

If you are unsure whether or not you have suffered harm, an experienced attorney may be able to help clarify. The skilled San Jose medical malpractice lawyers at Corsiglia, McMahon & Allard, L.L.P. have years of experience in these cases, and understand how confusing they can be. Contact us today at (408) 289-1417 to schedule an appointment. We serve San Jose, the Bay Area, and the counties of Santa Clara, San Benito, San Mateo, Monterey and Alameda.

Client Reviews
My experience with Attorney Brad Corsiglia during my recent medical malpractice case was nothing short of amazing given the very stressful circumstances. I was fortunate to find Brad highly recommended from a mutual contact and from the very beginning of the process, Brad was truly engaged and knowledgeable in understanding my case and providing input on what avenues were available to me. Michelle M.