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    Medical Malpractice & Negligence Claims

    Accidents can happen; we are not perfect, and never will be. Nonetheless, healthcare professionals that make mistakes can put a patient in serious danger that includes a life-threatening condition caused by one or more injuries.

    When a medical professional commits an act of negligence, California law states patients have the right to file a lawsuit to recover damages. If you believe a medical professional made a mistake that put you in harm’s way, you should contact a California medical malpractice attorney to determine how to proceed with a claim.

    3 Rules to Follow Before Filing a Medical Malpractice Lawsuit

    California has in place a unique set of requirements for plaintiffs to follow before filing civil lawsuits for medical malpractice.

    Perhaps the most important requirement is sending a healthcare provider a notice of intent to sue. You must give a healthcare provider at least 90 days of notice before you file a civil lawsuit. The notice of intent to sue must include the reason for the claim, the nature of the injury or injuries, and the types of losses you have suffered.

    Most medical malpractice lawyers operate on a contingency fee basis, which means they get paid when their clients get paid. California limits how much a medical malpractice attorney can take from the monetary damages awarded to a client.

    The limits work like this:

    • 40 percent of the first $50,000
    • 33 1/2 percent of the next $50,000
    • 25 percent of the next $500,000
    • 15 percent of any damages that exceed $600,000

    Some medical malpractice defendants use the shared liability defense, which places some of the blame on the defendant. For example, a healthcare provider might claim a patient failed to follow instructions. If the defense can prove shared liability, the damages awarded to the plaintiff decrease by the percentage assigned to the plaintiff for shared liability.

    Litigation for Medical Malpractice Cases in California

    A civil lawsuit filed against a healthcare provider for medical malpractice starts with your lawyer preparing a Complaint and Summons that is served to the defendant. The defendant must file a legal document called the Answer that responds to the allegations, as well as describes the defenses the defendant plans to use during the hearing for the medical malpractice claim.

    The Complaint and Summons should include the following:

    • Statement of facts creating the cause of action
    • Demand for judgment that the plaintiff deserves financial relief
    • Amount demanded for damages should not be stated by the plaintiff

    Proof of serving a Complaint and Summons must be presented within 60 days when the clerk of the court received the Complaint and Summons. The defendant has 30 days after receiving the Complaint and Summons to file the Answer.

    Discovery represents the legal process that allows both parties to know what to expect if the civil lawsuit goes to trial.

    California law permits both sides in a medical malpractice case to discover what to expect at a trial by receiving the following information.

    • Results of a deposition
    • Written interrogatories
    • Requests for admission
    • Request for delivery of certain documents
    • Mental and physical examinations

    A deposition is a legal process that uncovers the facts related to a medical malpractice case. Each side asks the opposing side questions while all parties answering deposition questions are under oath. Depositions typically do not unfold in a courtroom, but instead, they take place in one of the attorneys’ offices. A deposition is an effective tool that allows your lawyer to give you advice on how to answer different questions, as well as make objections to the questions asked by the other party’s attorney.

    Both sides present admissible evidence during a trial. Your attorney might present admissible evidence to a judge or a jury; California permits both types of “triers of fact” at a civil lawsuit hearing. If your case goes to a jury, the panel should consist of 12 members unless both sides agree to a reduced number of jurors.

    Your lawyer should kick off the lawsuit by calling witnesses to the stand. The opposing attorney has the right to cross-examine the same witnesses to diminish credibility. After your lawyer calls every witness to the stand, the defense starts to present its evidence. Closing arguments clarify any possible confusing witness statements, as well as emphasize the most important arguments made during the trial.

    When a civil lawsuit goes on the trial docket, there might be a sense of urgency on one or both sides to settle the lawsuit out of court. Working with a California medical malpractice attorney who possesses strong negotiating skills is an important attribute to have for getting the compensation that you deserve.

    If the plaintiff loses a civil lawsuit hearing, the plaintiff has the right to appeal the decision issued by the judge or the jury. The Court of Appeals is different from the civil court in that it does not review evidence or listen to testimony. During an appeal, the court determines whether the civil court made an error in interpreting California medical malpractice law or decided the information was factual when it was not supported by sufficient evidence.

    You have 60 days after the day the trial concluded or 60 days after the other side served you with a letter stating judgment has passed on your case to file a Notice of Appeal.

    A patient in California can hold a healthcare provider legally liable for causing death or injuries if the actions taken by the healthcare provider were at least partly responsible for causing the death or injuries. California law requires four legal criteria to prove negligence for a medical malpractice claim.

    • Existence of a legitimate doctor-patient relationship
    • Healthcare provider violated the standard of care
    • Violation of the standard of care caused physical harm to a patient
    • Patient suffered damages

    Patients in California cannot hold medical practitioners legally liable for medical malpractice because they simply did not like the outcome of a medical procedure. For a successful claim of medical malpractice, a patient has to prove the healthcare provider delivered healthcare services that caused physical harm and that the patient suffered damages.

    Medical documents that demonstrate negligence on the part of a healthcare provider are the key to winning a civil lawsuit for medical malpractice. Copies of diagnostic reports, treatment sessions, and rehabilitation regimens are critical to proving medical negligence. The report describing the medical procedure that caused you physical harm is essential for your claim as well.

    Expert testimony from healthcare professionals can provide insight into often complex medical procedures. Your medical malpractice attorney might also call witnesses to the stand, such as every medical professional that participated in the medical procedure that caused you to suffer damages.

    Establishing the Four D's of Medical Malpractice

    Many victims of medical negligence do not realize they have a legitimate case to file a civil lawsuit. One of the most effective ways to determine whether you have a strong medical malpractice claim is by referring to the four D’s of determining medical negligence.

    Under California law, healthcare providers must uphold high standards of care for their patients. Physicians must inform their patients about their level of expertise, as well as the scope of their practice. For example, if your family doctor suggests you should undergo surgery to repair a torn ligament, your doctor has to recommend a reputable surgeon who handles similar types of surgeries.

    Failing to follow standard medical procedure or overreaching when providing healthcare services represent a dereliction of a healthcare provider’s duty. If a podiatrist promises to maintain a clean and sanitary facility, the podiatrist must uphold the promise. An unclean and unsanitary medical facility can cause infections.

    Direct cause is easy to understand: Medical negligence directly caused one or more injuries. In most cases, proving direct cause involves gathering and organizing medical documents. One common example of direct cause is when a surgeon completes a surgical routine that a patient did not need and/or request.

    Courts examine medical evidence to determine whether medical malpractice caused the damage alleged by a plaintiff. Damages include physical and emotional harm, as well as the loss of wages. A California-licensed can help you make the link between an act of medical negligence and the damages that you have endured.

    FAQs About Medical Malpractice

    Medical malpractice statutes can be complex to understand for victims of healthcare negligence. Attorneys around the state address a wide variety of questions that pertain to medical malpractice law.

    We have whittled down the long list of question to six of the most common medical malpractice questions asked by California residents:

    California statutes define medical malpractice as an act committed by a healthcare professional that deviates from the standard care provided for a patient that suffers from a specific medical condition. For example, a patient sees an orthopedist to have two fractured bones set in place for the healing process. During the procedure, the orthopedist commits a major act of negligence that caused an infection near one of the fractured bones. A mistake such as creating the conditions for an infection to develop can have a long-lasting negative impact on a patient. 

    Medical malpractice can involve any type of diagnostic test, treatment regimen, and rehabilitation program. However, the following examples represent the most common types of medical malpractice cases that can be grounds for the filing of a civil lawsuit.

    • Incorrect diagnosis
    • Failure to diagnose
    • Implemented wrong tests
    • Misinterpretation of lab results
    • Not taking a patient’s medical history into account
    • Did not recognize obvious symptoms
    • Unnecessary surgery that made a medical condition worse
    • Errors committed during surgery
    • Incorrect drug prescription
    • Patient discharged from hospital too early
    • Over prescription of medications
    • Lack of proper follow-up medical care

    Yes, patients that receive one or more injuries because of medical malpractice have the right in California to file a lawsuit seeking damages. You might have heard that because of the financial caps place on Medical malpractice damages, many California medical malpractice lawyers refuse to work such cases. This is not true in many cases, which means you should still consult with an experienced medical malpractice attorney.

    California Civil Code 3333.2 places a limit of $250,000 for non-economic damages. Non-economic damages represent damages that are difficult to place a monetary value on.

    • Pain and suffering
    • Loss of enjoyment for life
    • Scarring
    • Disfigurement
    • Inconvenience

    There is not a limit placed on compensatory damages, which cover medical expenses and lost wages.

    According to California law, plaintiffs must file a medical malpractice lawsuit within one year after the patient discovers an injury or should have discovered an injury that was caused by medical negligence. You should follow the principle of “the sooner, the better” when filing a civil lawsuit for medical malpractice. The passage of time can diminish the influence of evidence.

    The short answer is all healthcare providers and facilities that operate in California. Here is a short list of healthcare providers and facilities that face the most civil lawsuits for medical negligence.

    • Nurses
    • Physicians
    • Podiatrists
    • Physical therapists
    • Anesthesiologists
    • Pharmacists
    • Psychologists
    • Clinics
    • Hospitals
    • Laboratories


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    Contact a California Medical Malpractice Attorney

    More than 200,000 Americans die each year because of medical errors, yet just about 15 percent of the case turn into civil lawsuits. Many of the victims of medical malpractice that live cannot make the connection between their new injuries and the medical negligence committed by a healthcare provider. There is also the pervasive misperception that doctors never make mistakes.

    Doctors are human and like all humans, they make mistakes. If you suffered one or more new injuries after receiving treatment from a healthcare provider, contact a California-licensed medical malpractice attorney to decide how to proceed with your case.

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