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Understanding Medical Malpractice - Simply...

Understanding Medical Malpractice – Simplified.

Part 1

There are many Orange County medical malpractice attorneys advertising their services online, on bus benches, or in the Yellow Pages, but if you are a prospective plaintiff in Mission Viejo, Irvine, Laguna Niguel, or even Los Angeles, and you’re trying to understand the basics of medical malpractice law, you may find that most of those other attorneys’ websites simply quote all the statutes and case law without any real personal touch, or they tell you to call them and let them evaluate whether you have a case, only to turn you down 90% of the time. That’s a waste of time for both of us. They don’t take the time to explain in plain English what medical malpractice is, is not, what you should know going in, and what it is that they are going to do for you. We believe that through this website, we can give you the benefit of understanding the fundamentals first, and we’ll demystify them for you. Of course, we are a full-service law firm.

From Artesia to Anaheim, From Van Nuys to Venice,

If Your Doctor Screwed Up, It’s Time to Call Dennis! 714-550-7147

Why Hire Mission Viejo Medical Malpractice Attorney Dennis F. Minna?

Over 30 Years’ Experience Taking the Toughest Cases to Trial, and Winning Millions for Injured Victims.

Because the Law Office of Dennis F. Minna is an Orange County medical malpractice law firm that has been handling, and winning, high-value cases involving the professional negligence (another term for medical malpractice) of doctors, hospitals, nurses, pharmacists, and other health care professionals for over 30 years, we are uniquely qualified to embark upon this mission with this, the first in a series of informative and educational blog posts.

What is Medical Malpractice?

Medical Malpractice Is a Species of Negligence

(Professional Negligence)


Although medical malpractice is a specialty practice area, it’s just a species of the common-law tort of negligence. If you understand the more general case of negligence, you will get a better idea of how the law of medical malpractice works. Negligence has four main elements:


Duty of care - See Civil Code section 1714, subdivision (a): “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. . . .”

In plain English, this statute simply says everyone has a general duty of due care toward others (ordinary care or skill). Now, going beyond the statute, if the tortfeasor has a “special relationship” to the other person, they have a higher duty of care. These “special relationships” are quite varied, and include: school/teacher-student, landlord-tenant, common carriers (railroads, airlines, and bus companies)-passengers; and, of course, professional service providers such as lawyers and healthcare providers.


Breach of duty - The failure of the tortfeasor to exercise their general duty of due care.


Causation - The causal relationship between the acts and/or omissions of the tortfeasor and the injuries suffered by his/her victim(s).

In this first link, he is in the ER, tending to a young, innocent, blonde girl in a T-shirt marked π, while his nurse readies an IV drip in the background. Her chart says “PLAINTIFF, PENNY.”


Penny (quote bubble): I’m so nauseous, Doctor.

Dr. T.: (quote bubble): We’re taking care of it: This injection will make your nausea much better.

Now, we see Dr. T having drawn up a huge needle from an ampoule of Phenergan 50 mg/mL solution. The warning label is visible: “For Deep Intramuscular Use Only.” We see he has injected the Phenergan into Penny’s IV—into a vein in her hand— and Penny has a panicked look on her face.

This has 2 parts:

Penny (quote bubble): Excuse me, Doctor, something isn’t right. This really burns. A lot. I’ve never had an injection hurt like this one hurts. I seriously wanna pull this IV right out of my arm

Dr. T.: (quote bubble): Penny, it’ll be fine. Just wait for all the medicine to go in and do its job.

Penny (quote bubble): Oh my God, Doctor, please, my hand is purple; my arm is blue, I’m in such pain, I think I’m dying. Get this IV out of my arm, for the love of…

Dr. T (quote bubble): Penny, I was just trying to treat your nausea, but obviously, you won’t let me.

Penny (quote bubble): No, it’s just that…By the way, I couldn’t help but notice… Doctor, I looked at the label, and it said, “For Deep Intramuscular Injection Only,” and you just injected me with it IV. I don’t understand that, Doctor.

Dr. T.: (quote bubble): I’m the doctor, you’re the patient. You have nothing to worry about. And you shouldn’t be reading labels here in the E.R., it adds to your stress.

Dr. T.: (thought bubble): Who the heck does she think she is?! Millennial snowflake!

The But-For Test: “But for” (in other words, without) the defendant tortfeasor’s bad acts, none of this could ever have happened. This is the First Link in the chain;The Proximate Causation Test: You can connect the initial bad acts or omissions of the defendant tortfeasor and the events that followed it in an unbroken chain of links directly to the plaintiff’s injuries and should be able to back it up with evidence that supports the proximate causation. (In medical malpractice, this usually requires expert testimony.)Damages

How we quantify the injuries for purposes of securing compensation.

But instead of “duty of care,” in medical malpractice, the operative first element is the standard of care. And healthcare professionals are duty-bound to follow it.


What Is the Standard of Care?

According to the actual definition from the jury instructions (CACI 501, if you’re interested), “a [non-specialist medical practitioner] is negligent if he/she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful [non-specialist medical practitioners] would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as “the standard of care.”

Therefore, then, breach of the standard of care is negligence by a medical practitioner, a.k.a. medical malpractice. Make sense?


So, basically, if your doctor isn’t keeping up with the generally recognized level of skill, knowledge, and care of other doctors in Mission Viejo, Laguna Beach, or Aliso Viejo, he or she might be negligent, and might have breached the standard of care. But then again, maybe not.


The Standard of Care is Determined by Expert Testimony

“But wait a minute, Dennis!” you must be saying out in the blogosphere. “Didn’t you just say...? But how do you know?” Well, the answer is, I don’t, and you don’t; that’s where experts come in. You see, I didn’t show you the second part of that jury instruction, which says: “You must determine the level of skill, knowledge, and care that other reasonably careful [insert type of medical practitioners] would use in the same or similar circumstances, based only on the testimony of the expert witnesses [including [name of defendant]] who have testified in this case.]” Here, remember, “You” means the jury.


Why Do Courts Require Experts to Determine Standard of Care in a Medical Malpractice Lawsuit?

Now, think about why courts require this: How can a jury, which is 12 people who are likely composed of non-doctors, objectively render a decision about whether a doctor did or did not correctly perform a surgery, or administer the right chemotherapy protocol? Unless they are properly educated by a medical expert first, the answer is, “They can’t!”

But it’s good to remember something else: We lawyers often refer to “the trier of fact,” and that could mean the Court (a judge) or a jury. And very often, in medical malpractice cases, it is the Court that ends up evaluating the experts’ testimony the same way a juror would. This could occur if the litigants opted for a bench trial, or—as often happens—even if the parties have demanded a jury trial, the Court ends up making a decision about the experts’ testimony before the case even goes to a jury, such as if the defendant files a motion for summary judgment which disposes of the case without a trial (if the Court grants the motion). Less often, there could be a motion for judgment on the pleadings, which, if granted by the Court, also disposes of the matter without a trial.

Hint: Medical Malpractice Cases Generally Need to Have Pretty Serious Damages in Order to Be Worthwhile (We Will Discuss Damages Later)


Medical Malpractice Is NOT:

Your doctor refusing to give you a parking validation;Your doctor making you wait 30 minutes longer than your appointment time in the waiting room.

Granted, those are silly examples. But I think you see my point.

Bringing a Medical Malpractice Case? You Need an Expert!

(And We’re Not Just Talking About Attorney Dennis Minna Here!)

While Mission Viejo medical malpractice attorney Dennis F. Minna is certainly an expert in his field, he’s a J.D., not an M.D., and, with very few exceptions, as part of the process, you’ll need a medical expert who can render an opinion on whether your healthcare professional breached the standard of care. If so, how did he/she do so (how badly)? Then, the next element is also crucial: causation, that is, did the breach of the standard of care actually cause the claimed injury and damages? Because if not, you don’t have a case.

Medical Expert Witnesses from Abdominal Surgeons to Weight-Loss Surgeons

(We couldn’t think of any X’s, Y’s, or Z’s right now, OK? If you’re an expert witness starting with one of these letters, hey, let us know. We’re certainly curious!)

You may already have your own expert (sometimes it is a physician you have been treating with), or we may supply them for you. The Law Office of Dennis F. Minna maintains extensive relationships with medical experts from a wide variety of medical specialties and sub-specialties throughout Orange County and Los Angeles. Most are seasoned expert witnesses who are tried and true veterans of litigation.

Tune in for our next blog in our series: Medical Malpractice and the Statute of Limitations, or, Ask Not for Whom the SOL’s Tolled, Because It’s Probably Not You.

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