San Francisco Medical Malpractice Attorneys

Understanding the Concept of Professional Negligence

In California, professional negligence broadly refers to a professional’s conduct which falls below acceptable standards within that professional's industry or practice, which causes damage or harm. Medical malpractice is an example of professional negligence.

Professional negligence is not limited to any particular profession per se, and certainly includes the conduct of health care professionals, (doctors, nurses, therapists, hospital staff, etc.), legal professionals, (attorneys, paralegals, etc.) accountancy professionals, (CPAs, etc.) and numerous others.

When you believe a professional has deviated from the applicable standard of care, and when you have been harmed by this conduct, the Scarlett Law Group stands ready to assist you. With considerable experience and proven results, our firm maintains a strong professional negligence practice.

If you or someone you love was injured as a result of medical malpractice, call the Scarlett Law Group today at (415) 688-2176 to speak with a San Francisco medical malpractice lawyer.

Physicians Have a Duty to Diagnose & Refer

The first and essential duty of a medical professional is to find out – that is, to diagnose – what is wrong with a patient. An incorrect diagnosis in and of itself will not, in all occasions, support a verdict in a malpractice suit, but the physician must use ordinary care in reaching his/her diagnosis.

The law in each state varies with respect to the duties of physicians; however, liability may arise where a physician or surgeon fails to use due diligence, as are practiced by physicians and surgeons with like skill and learning, in ascertaining all available facts and collecting data essential to a proper diagnosis.

Most states, likewise, require a physician to refer a patient to a specialist if, under the circumstances, the standard of care would require the general practitioner to do so.

In California, for example, the following jury instruction may be given:

  • “It is the duty of a physician who is a general practitioner to refer a patient to a specialist if under the circumstances of reasonably careful and skillful general practitioner would do so. If the physician fails to fulfill that duty and undertakes or continues to perform professional services without the aid of a specialist, it is the further duty of the physician to have the knowledge and skill ordinarily possessed and exercise the care and skill ordinarily used by reputable specialists in the same field and in the same or similar locality and under similar circumstances. A failure to fulfill any such duty is negligence.” [BAJI 6.04]

An Alaska case is illustrative of this point. In Steele v. United States, (D.C. Alaska 1978) 463 F.Supp. 321, an optometrist examined his patient and found evidence of possible eye disease. He decided that no serious disease was present and, therefore, did not refer the patient to an ophthalmologist.

The disease worsened over time and eventually resulted in removal of the eye.

The court found the optometrist breached his duty to the patient by failing to refer him to an ophthalmologist. Optometrists are trained to recognize symptoms of many diseases which may be discovered by eye examinations, but were not then permitted to undertake a definite diagnosis.

This is the responsibility of a qualified medical doctor. Thus, the court found that an optometrist could be held liable for the injuries resulting from the delay of the diagnosis and institution of treatment.

Expert Testimony Regarding the Standard of Care

Generally, expert testimony is required to prove the doctor breached the applicable standard of care. This is because such matters are thought to be outside the scope of knowledge of the average juror. It goes without saying that the expert must be competent in the field in which his/her opinion is offered.

In order to examine the role played by the physician/expert, it is first important to understand the duties of a physician. While the wording may vary, a typical instruction reads:

  • “In performing professional services for a patient, a physician has the duty to have that degree of learning and skill ordinarily possessed by reputable physicians, practicing in the same or similar locality and under similar circumstances. The further duty of the physician is to use the care and skill ordinarily exercised in like cases by reputable members of the profession practicing in the same or similar locality under similar circumstances, and to use reasonable diligence and his or her best judgment in the exercise of skill and the application of learning, in an effort to accomplish the purpose for which the physician is employed. The failure to fulfill any such duty is negligence.” [BAJI 6.00.1 (8th Ed.)]

It is the expert witness that informs the jury and court, among other things, what the alleged errant doctor did, or omitted to do, which varied from the minimal standards accepted for the profession. Additionally, the expert witness often provides the court with vital information as to causation.

In other words, the expert opines that, as a result of the physician’s acts or omissions (which fell below the standard of care), the plaintiff sustained injuries of a particular nature.

Lastly, the expert should shed light on the damages sustained by plaintiff. A good expert distills medical terminology into easy-to-understand concepts and principles. This is not to suggest that the expert “runs the trial." Far more is involved. However, the expert does play an important role in the case.

Additionally, it is common for the experts pro-offered by each side (plaintiff and defense) to disagree as to what should have been done by the medical professional in a given scenario. Accordingly, jurors are faced with the task of weighing the conflicting opinions expressed by the experts in a case.

A typical jury instruction provided by the court is illustrative of this point:

  • “You must determine the standard of professional learning, skill, and care required of the defendant only from the opinions of the physicians who have testified as expert witnesses as to such standard. You should consider each such opinion and should weigh the qualifications of the witness and the reason given for his opinion. Give each opinion the weight to which you deem it entitled. You must resolve any conflicts in the testimony of the witnesses by weighing each of the opinions expressed against the others, taking into consideration the reasons given for the opinion, the facts relied upon by the witness, and the relative credibility, special knowledge, skill, experience, training and education of the witness.” [BAJI 6.30 (8th Ed.)]

How Long Do I Have to File a Medical Malpractice Lawsuit?

In the state of California, you only have one year to file a lawsuit against the medical professional or hospital that caused your injury. The clock starts counting down when the injury is discovered, or should have been discovered as determined by the court, not from the date the injury occurred.

Many injuries that result from medical negligence do not present symptoms right away. It can also take time to investigate and discover that your injury was caused by medical negligence.

Medical malpractice cases involving minor children have a statute of limitations of three years from the date of the alleged malpractice. If the child is under the age of six, the statute of limitations can be extended to their eighth birthday, if that provides a larger window in which to file the lawsuit.

If you have been injured by medical malpractice in California, call the San Francisco medical malpractice attorneys at Scarlett Law Group for a free consultation: (415) 688-2176.

Medical Malpractice

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