Medical Malpractice FAQs

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Medical Malpractice FAQs: 15 Legal Questions and Answers

The attorneys at Hodes Milman are fully prepared to answer every question you have about the viability of your medical malpractice case and the legal services we provide to our clients and their families.

The legal minds at Hodes Milman have compiled the following answers to frequently asked questions about medical malpractice cases in California and the United States. This page contains general information — for specific questions regarding your circumstances or how quickly we can file your claim or lawsuit, contact us directly at (949) 640-8222 for a free, fully confidential consultation.


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1. What do damages in a medical malpractice lawsuit cover?

Damages in a medical malpractice lawsuit typically cover the losses and harms suffered by the patient as a result of the medical negligence of the healthcare provider. These damages can be categorized into economic and non-economic damages.

Economic damages cover the financial losses the patient suffered as a result of the medical malpractice. Examples of economic damages include medical expenses, lost wages or income, and future medical expenses. These damages are typically supported by documentation, such as medical bills and employment records.

Non-economic damages cover the intangible losses the patient suffered, such as pain and suffering, emotional distress, loss of consortium, and loss of enjoyment of life. These damages are not easily quantifiable and can be subjective. You’ll need a skilled attorney to accurately depict these losses for court proceedings.

2. What is the statute of limitations on medical malpractice?

The statute of limitations on medical malpractice sets a time limit within which a patient must file a medical malpractice lawsuit. If the patient fails to file the lawsuit within the specified time frame, they may lose their right to pursue legal action.

Each state has different statutes of limitations depending on when the injury was discovered, the type of injury, or the age of the patient. For example, in California, the statute of limitations for medical malpractice is generally 3 years from the date of the injury or 1 year from the date the patient discovered or should have discovered the injury, whichever comes first. However, there are exceptions for cases involving minors or cases where a foreign object was left in a patient’s body, which have longer statutes of limitations.

3. How can medical malpractice be proven?

To prove medical malpractice, a plaintiff’s attorney must establish four elements: duty, breach of duty, causation, and damages.

In a medical malpractice case, duty is established by showing that the healthcare provider-patient relationship existed. A breach of duty claim must show that the healthcare provider failed to provide care that met the applicable standard of care. Causation is the link between the healthcare provider’s breach of duty caused the patient’s injuries. Lastly, damages are the costs and losses suffered due to the injury caused by a healthcare provider’s negligence.

To prove these elements, your medical malpractice lawyer must present evidence such as medical records, expert testimony, and witness statements on your behalf.

4. How does a medical malpractice lawsuit work?

A medical malpractice lawsuit typically follows a few general steps. First, if a patient suspects that they have been a victim of medical malpractice, they should consult with an attorney who specializes in medical malpractice cases. Second, if the attorney determines that there is a valid claim, they will file a lawsuit on behalf of the patient. Next, the “discovery” phase is the pretrial period during which both sides gather and exchange information. Then negotiations begin between both parties to try and reach a resolution without going to trial.

If the case does not settle, it will proceed to trial. The trial will involve presenting evidence, calling witnesses, and making arguments before a judge or jury. At the end of the trial, the judge or jury will make a determination as to whether the healthcare provider was liable for malpractice and, if so, the amount of damages to be awarded.

An experienced medical malpractice attorney from Hodes Milman can guide you and your family through the process and advocate for your rights throughout the case.

5. What to do if you suspect medical malpractice?

If you suspect that you or a loved one has been a victim of medical malpractice, it is important to take action as soon as possible. First, if you are experiencing any immediate medical issues related to the suspected malpractice, seek medical attention right away. Keep detailed records of all medical treatment related to the suspected malpractice such as medical records, test results, and any bills or other documentation.

Once your medical needs are met, consult with an attorney who handles medical malpractice cases. The attorney can evaluate your case and advise you on the best course of action. Your lawyer can also help you report the incident to the appropriate healthcare regulatory agency.

6. How long does a medical malpractice lawsuit take?

The length of a medical malpractice lawsuit can vary depending on many factors, such as the complexity of the case, the jurisdiction, and the willingness of the parties to settle. Generally, a medical malpractice lawsuit can take several months or longer to resolve. 

Factors that affect the timeline include: the pre-trial investigation your attorney undertakes to gather evidence, the statute of limitations deadlines relevant to your case, the length of the discovery process during which your lawyer reviews information handed over by the opposing party, and whether the other party will offer a fair settlement before a trial becomes necessary.

Many medical malpractice cases are settled pre- or mid-trial before a verdict is reached. This allows you to close this matter sooner rather than later, and move on with your life.

7. What type of lawyer handles medical malpractice?

A personal injury lawyer experienced in medical malpractice is typically referred to as a medical malpractice lawyer or an attorney. These individuals have a thorough understanding of medical practices and procedures, as well as the legal system in your jurisdiction, and can help individuals who have been injured or harmed due to medical negligence or malpractice. 

Medical malpractice lawyers may represent patients, their families, or healthcare professionals in cases involving medical errors, misdiagnosis, surgical errors, medication errors, and other forms of medical negligence.

Featured Case Results

Our medical malpractice case results at Hodes Milman include:

  • $17.25 million for a 39-year-old substitute teacher against Kaiser Permanente, which initially offered only $4 million to resolve the case
  • $12.35 million to three patients who developed surgical site infections after operation from a surgeon carrying MSSA bacteria
  • $5.7 million for a birth injury case involving an infant who received brain damage

To discuss your situation and legal needs, contact Hodes Milman at (949) 640-8222 for a free, fully confidential consultation.

8. How common is medical malpractice?

The prevalence of medical malpractice is difficult to determine precisely since not all cases are reported or litigated, and definitions and criteria for medical malpractice vary across different countries and regions. However, studies suggest that medical malpractice occurs more frequently than one might expect.

In the United States, for example, it is estimated that medical errors and malpractice cause between 250,000 and 440,000 deaths each year. However, only a small fraction of these cases result in malpractice claims or lawsuits. According to reports by the National Practitioner Data Bank (NPDB), in a recent decade $42 billion was paid out for medical malpractice cases across the country.

9. Is medical malpractice civil or criminal?

Medical malpractice is considered a civil matter rather than a criminal matter. The purpose of a medical malpractice lawsuit is to seek compensation for damages suffered as a result of the healthcare provider’s negligence — examples include medical expenses, lost income, pain and suffering, and other related costs. It is not meant to punish the healthcare provider or result in criminal charges or penalties.

However, in rare cases where medical negligence involves intentional harm, fraud, or criminal activity, criminal charges may be filed against the healthcare provider or facility in addition to any civil lawsuits. For example, if a healthcare provider intentionally administered a lethal dose of medication to a patient, this could result in criminal charges such as murder or manslaughter.

10. What is a medical malpractice damages cap?

A medical malpractice damages cap is a limit placed on the amount of compensation that can be awarded to a plaintiff in a medical malpractice lawsuit. This limit is usually set by state law and can vary widely from state to state.

Critics of damages caps argue that they can unfairly limit the compensation that injured patients receive, particularly in cases involving catastrophic injuries or long-term care needs. They also argue that damages caps can discourage injured patients from pursuing medical malpractice lawsuits, since the potential compensation may not cover the full cost of their injuries and related expenses.

It’s important to work with an attorney who has proven they can maximize your award in instances of caps on the amount of non-economic damages. This is the case for California payouts due to MICRA legislation.

11. How many medical malpractice cases happen per year?

According to the National Practitioner Data Bank, in the United States there are approximately 15,000-18,000 lawsuits filed each year that allege medical malpractice or negligence. However, the exact number of medical malpractice events is likely higher, as not all incidents of medical malpractice result in a lawsuit or settlement.

12. How often do medical malpractice cases settle?

The vast majority of medical malpractice cases are settled out of court rather than going to trial. The exact percentage of medical malpractice cases that settle out of court can vary depending on the source of the data, but most estimates suggest that between 80% and 90% of medical malpractice cases are settled before trial.

There are several reasons why medical malpractice cases are frequently settled out of court. For one, settlements can be less time-consuming and costly than going to trial. This is often ideal so that both parties can avoid the need for lengthy legal proceedings and the associated costs of expert witnesses, depositions, and other expenses. Settlements can also be less risky for both parties, as they can provide a degree of certainty and predictability in the outcome of the case.

13. How can you file a medical malpractice lawsuit in California?

Filing a medical malpractice lawsuit in California typically involves the following steps. The first step is to consult with an experienced medical malpractice attorney who can evaluate your case and help determine whether you have a valid claim. Next, your lawyer will file a complaint with the court outlining the details of your case, including the injuries you suffered, the healthcare provider(s) responsible, and the damages you are seeking. Once the complaint is served to the defendant(s), lawyers begin the discovery and negotiation portions of the lawsuit.

14. How can a medical malpractice lawyer help with my case?

A medical malpractice lawyer can provide a wide range of services and assistance in pursuing a medical malpractice case. First, we conduct an investigation into your case, including obtaining medical records, reviewing relevant medical literature, and consulting with medical experts. Next, we negotiate with opposing counsel to seek a fair settlement, and should that be delayed, we then prepare to represent you in court before a judge.

Overall, our medical malpractice lawyers take on complex tasks related to clinical paperwork and the law, all so that you don’t have to. Every step we complete on your behalf is one less burden on your time as you recover your health.

15. What sets Hodes Milman apart from other medical malpractice law firms?

Hodes Milman has decades of jury trial experience, and we have recovered over $200 million in life-changing victories. We are highly involved with our clients and each case is given the fresh perspective and attention it deserves. Additionally, we have recovered tens of millions of dollars for patients against the managed care consortium Kaiser Permanente, which has its own unique rules for medical malpractice litigation. 

At Hodes Milman, we take pride in representing patients and their families, and providing proven representation for the underdog against billion-dollar corporations and insurance companies. We are also committed to ensuring our clients receive our full attention, and are accessible whenever possible throughout the process.

We are experienced medical malpractice attorneys who have helped victims of negligence receive the justice they deserve.

All of these questions and any follow-ups you may have can be answered more specifically during your free consultation. Contact Hodes Milman at (949) 640-8222 to discuss your injury, your circumstances, and your needs in a confidential setting with legal professionals who can help advise you. One call could lead to the life-changing representation you deserve.



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HMI team

When you work with us, you’ll see the difference. A lot of firms are quick to show you numbers, and it is absolutely true that your lawyer should have experience and a strong track record in the area that you require. However, we’ll take it one step further. We also believe that your attorney should put your needs, cares and desires first. Because you deserve more than just compensation for your losses - you deserve a true advocate.

HMI team