Common Questions The Role of the “Expert Witness” “My case is obviously malpractice because Almost all medical malpractice cases require the operation didn’t work (or the doctor expert witness testimony. If the plaintiff does clearly made a mistake).” not present expert testimony, the judge will usually dismiss the case or grant summary Medical The simple fact of a bad outcome or mistake does not necessarily prove malpractice. If the judgment for the defendant. Malpractice patient is not seriously hurt, or if the patient Expert witnesses are required to: would have been injured even with proper • Define the standard of care applying to care, there is no viable malpractice claim. Even mistakes may not be malpractice; the particular situation, doctors are not required to be perfect. • Offer a professional opinion whether the defendant met that standard of care, “Why can’t I find a lawyer to take my case?” and Malpractice lawyers are very selective in the • Testify how the defendant’s failure cases they accept or even agree to review. caused the plaintiff’s injuries. Experts often use medical publications, Medical malpractice cases require a large up- medical board guidelines, trade journals, front investment (analyzing records and hiring textbooks, and similar materials to help them experts) and lots of attorney and staff hours. The amount a lawyer can earn is limited, prepare their opinions and form the basis of because non-economic damages (pain and their research. suffering) are capped at $250,000, and Finding an Expert Witness contingency fees are limited to a certain Expert witnesses can be found in directories percent. organized by specialty and geographic region; “Why won’t a lawyer even consider my referral services or professional associations; case?” by researching jury verdicts in similar cases; and by reviewing articles on relevant topics. Before they take a case, lawyers will need A free informational guide courtesy of the Sacramento County Public Law Library and time to review records to decide if it has Sacramento County Civil Self-Help Center. merit. Because of the short statute of limitations, there may not be enough time for Public Law Library th This pamphlet is intended for general a lawyer to do this before the deadline. As a 609 9 Street Sacramento, CA 95814 educational use only, and is not intended result, even a strong case may not be eligible saclaw.org as legal advice or as a substitute for your for review if the statute of limitations is own legal research or consultation almost up. H:\public\LRG-SBS\Pamphlets\medical malpractice.docx 5/21 kf with an attorney. What is Medical Short Time Limits and Getting help with your medical “Intent to Sue” No�ce malpractice case Malprac�ce? Legal malpractice lawsuits are What is the Statute of Limitations for extremely complicated and have Medical malpractice occurs when a patient is Medical Malpractice? unique requirements. Self- harmed by a doctor (or other medical Medical malpractice has a short statute of represented people are expected to professional) who fails to competently limitations: the earlier of 1 year after the research and comply with these perform his or her medical duties. Other causes plaintiff discovers (or should have discovered) requirements and can lose their of action, such as battery, breach of contract, the injury, or 3 years after the date of injury. case if they do not. We highly and fraud and deceit, may apply in some Cal. Code of Civil Proc. (CCP) § 340.5. recommend consulting with an cases. attorney. Some ways to find an What is the “Intent to Sue Notice?” Malpractice includes failure to diagnose attorney: The plaintiff in a medical malpractice lawsuit conditions, failure to properly treat conditions, must give the defendants 90 days advance Personal Referrals: Talk to your family or and failure to properly warn patient of risks of friends for referrals to trusted lawyers. treatment or drug (“informed consent”). written notice of intent to sue. A letter is fine, Online Directories: You can often search these Lawsuits commonly involve prenatal care and but it must contain the legal basis of the claim by geographic location and specialty, so you can childbirth injuries; medication errors; and the type of loss, including the specific limit your search to “Sacramento” and “medical anesthesia errors; and errors during surgery and injuries suffered. CCP § 364. malpractice” or “wrongful death.” Two well- post-operative care. Where do I find the laws on medical known ones are the Martindale-Hubbell How do I prove medical malpractice? malpractice? Directory (www.martindale.com/) and Nolo's To prove medical malpractice, a plaintiff must Medical malpractice in California is a complex Lawyer Directory (www.nolo.com/lawyers/). show: issue governed by a number of different cases Attorney Referral Services: These services are • and statutes. Ask your law librarian for help There was a physician-patient relationship vetted by the State Bar of California. They may giving rise to a duty of care, finding statutes, cases and books on medical be based on geography or topic. You can call • The physician was negligent (breached the malpractice. 866-44-CA-LAW or visit www.calbar.ca.gov for duty of care), lists of services. • The negligence caused plaintiff’s resultant Arbitra�on: Most large health plans, such Advertisements: Yellow Pages, newspaper ads, injury, and as Kaiser Permanente, use arbitra�on • The negligence caused actual damages, or the Internet may be a good starting point as instead of court to setle disputes. The well. such as pain, mental anguish, additional rules can be different in arbitra�on than in medical bills, and lost work and lost Print Resources: The Sacramento County Public court, and you have no right to a jury trial. earning capacity. Law Library has a range of print directories and In most cases you are required to hire an expert Be sure to find out if you are required to friendly reference law librarians available to witness to establish the duty of care and arbitrate your case, and read any special assist you. causation. rules or requirements that apply.