We rely on our healthcare providers to take care of us and keep us healthy. We and/or our insurance company pay for the services provided by doctors, physicians, osteopaths, podiatrists and other healthcare professionals. Medical professionals are paid for the services they provide and we must rely upon them to care for us. Unfortunately, patients are hurt or killed everyday across the United States because of the negligence of healthcare professionals. Medical negligence occurs when a healthcare provider fails to meet (breaches) the “standard of care” and a patient suffers harm from the breach. If you believe your doctor may have done something wrong, contact our attorneys as soon as possible to start getting help and make sure you don’t miss any legal deadlines.
Statute of Limitations
As with other kinds of personal injury claims, medical malpractice cases have a deadline, or a statute of limitations. California law provides for claims involving adult patients and minors for claims against non governmental entities or employees the following (this statute does not cover birth injuries) generally applies:
California Code of Civil Procedure § 340.5.
In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.
NOTE: THE LAW VARIES FROM STATE TO STATE AND WHATEVER STATE YOU LIVE IN YOU NEED TO CONSULT AN ATTORNEY ABOUT YOUR PARTICULAR SITUATION.
Sometimes the harm caused by negligent medical care may not become apparent for months or years after the medical professional makes an error. Under these circumstances the “delayed discovery rule” may apply to your claim. The California courts have interpreted the “after the date of injury” provision narrowly. It is important that you have your particular claim and situation reviewed by a competent personal injury or medical malpractice attorney.
If a patient / victim does not file a claim a timely claim / lawsuit he or she loses the legal right to pursue compensation for damages.
Discovering a healthcare provider was negligent can happen in different ways and at different times. For instance if you suffered a bad result from treatment, procedure or operation that may place you on notice to investigate your claim (hire a personal injury or medical malpractice attorney) to examine your matter. Or a doctor mistakenly operates on the wrong body part, in that situation a patient and/or her / his family may know almost immediately that an error was made. Other errors may take longer to discover, such as failure to diagnosis and treat a medical condition, e.g., cancer.
We have had cases in which a healthcare provider has negligently left a sponge or instrument inside a patient’s body, but the victim might begin feeling discomfort for days, weeks, months, or even years after the surgery. Initially the patient very likely will self treatment assuming the condition will improve over time. The patient may try over-the-counter analgesics or other forms of treatment but the problems persist or worsen. Finally, the patient undergoes diagnostic imaging tests and learns that a foreign body is inside their body. Under California law the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect means you can pursue your claim even if the surgery were years earlier. Clearly scalpels, retractors and sponges fall into the “foreign body” exception. However, the California courts have interpreted this statute and you need professional advice concerning your particular situation.
No matter how long it takes to recognize a medical error, an injured patient should at least contact a personal injury attorney / medical malpractice attorney to ask about your rights.
What Will an Attorney Do?
During an initial free consultation, our legal professionals will listen to the details of your case and advise you whether or not you have a malpractice case. If you choose us to recover maximum compensation for you, we’ll start by obtaining your medical records. If you need a new doctor to help you repair the damage, let us know. We can do the legwork to find you a trustworthy medical professional in your area.
If you or a loved one suffers a personal injury arising from medical care, please feel free to contact me. Richard M. Katz at The Law Offices of Richard M. Katz, Pasadena, California. 626-796-63333. I will be happy to answer any questions you may have.
Disclaimer: While every effort has been made to ensure the accuracy of this article, it is not intended to provide legal advice as individual situations will differ and will differ from state to state because of different laws. For specific technical or legal advice on your situation you should, without delay contact an attorney of your choice.