Q: What is medical malpractice?

Medical malpractice, or more appropriately, medical negligence is that type of claim which a victim has available to him or her to pay for a wrong committed by a doctor or other medical professional which has caused bodily harm.

Medical malpractice is much more than the physician or other health care provider making a simple mistake. Malpractice occurs when the health care provider does something that other good doctors would have not done or else fails to do something other good physicians would have done .

Say nothing at all to any Kaiser staff or employees about your suspicions. Caution your family members to also remain quiet around Kaiser’s people. Why? Medical records and diagnostic films can disappear or entries may be added or changed in your record.

However, you should take detailed notes as to the date and time of events and write down the names of any witnesses.

No one can determine whether or not you have a good case without reviewing your medical records. Sometimes, it is better for the patient to obtain a copy of ALL medical records rather than having the attorney obtain the records.

There are both benefits and detriments to having the patient obtain the records first rather than the lawyer. The benefits of having the patient pull his or her own records include the following: If it turns out there is no case, the health care provider need never know that the patient had a lawyer review the records. Second, if the records are pulled simply so the patient can obtain a "second opinion" ,the health care provider is less suspicious in handing over the records. This means records are less likely to be changed (yes, on rare occasion health care providers have been known to lose or change select records!) Finally, sometimes the provider will charge a patient less for a copy of the records than they would charge an attorney.

The benefits of having the lawyer pull the records include the fact that it is easier for the patient not to struggle with the medical records department of the hospital or doctor.

Often, if the health care provider knows that an attorney is involved, they will not release the records without first sending a copy of them to their own attorney or risk management department for review. This can add several weeks to the process.

When weighing the pros and cons , it is better for the patient to try to obtain their own records .

Under most circumstances, you cannot sue Kaiser in a California court, nor do you have the right to a jury trial against Kaiser. This is because the Kaiser health plan contract you have forbids such lawsuits and denies you a right to a jury trial. While this issue has been vigorously contested by consumer attorneys, unfortunately, it has been upheld by the California courts. Madden v. Kaiser. Therefore, the vast majority of all claims against Kaiser are resolved through binding arbitration. Arbitration hearings take place in front of one or more arbitrators who are generally retired judges. The arbitration award is final and there is virtually no right of appeal.

Yes, in general there are a few advantages to the Kaiser arbitration process. Often, you can get an arbitration hearing within a matter of about 8 months since the time the claim is filed against Kaiser. This is quicker than the docket for getting to trial in many counties in California.

Second, while some medical malpractice arbitrations require a panel of three arbitrators to decide a case, often Kaiser arbitrations can be conducted with a single arbitrator. It is generally cheaper to prosecute a case through binding arbitration rather than through a jury trial. Because arbitrators are experienced in medical malpractice matters, the cases tend to move quicker and take less time. This reduces the expense of experts.

Third, many Kaiser cases settle without the need for an arbitration. There is a mandatory settlement conference long before the arbitration. Often, these are successful in resolving the dispute.

Contact the Law Offices of Mulligan & Banham at once. We can have our consulting physician and attorneys review your case to determine if it has merit . If we think we can help you, we will take the steps necessary to preserve your rights and to aggressively proceed with your case.

If you or a loved one suffered a severe, permanent injury, a lawyer at Mulligan & Banham will read all relevant medical records to make an initial determination as to whether there is a viable case. Often, the attorney will do medical research to assist in the initial evaluation.

Before bringing a malpractice lawsuit, Mulligan & Banham will first have the medical chart reviewed by a qualified expert to make sure that there is a case.

We do not charge for an initial consultation by our attorneys or our staff physician. If we do agree to take your case, we will represent you on a contingency fee based on an amount set by statute.

Mulligan & Banham are hired on a contingency fee basis. That means the injured person does not have to pay the attorney by the hour for his or her time. Attorneys' fees in medical malpractice lawsuits are set by statute in California. The fees are forty percent (40%) for the first $50,000 recovered and goes down from there on a graduated scale where at the top end the attorney receives fifteen percent (15%) for any sum in excess of $600,000.00.

Regardless of the age of the victim or the severity of the injury, the most any victim of malpractice can get for his or her pain and suffering is $250,000.00 in California. So, even if a baby is born permanently blind and paralyzed because of a doctor or hospital's mistake, the most that infant can expect to get for its lifetime of pain and suffering is $250,000.00.

Efforts have been made to remove this harsh cap, but as recently as a few months ago the California legislature voted down bills to increase this ceiling.

Yes, perhaps the harshest limit is the statute of limitations. In the United States, California has the shortest time limit in which a victim can assert a medical malpractice claim.

Generally, if a victim doesn't takes steps to formally preserve his or her claim for malpractice, all rights to bring any lawsuit will be lost one year after the patient discovers the injury, or three years after the date of the injury, whichever occurs first.

There is an exception to this rule for minors, or if the health care provider committed fraud or in the unusual situation where the doctor left a foreign body inside of someone during surgery.

An autopsy is usually necessary if you truly want to prove in a court of law what caused a person’s death. While it is not impossible to win a lawsuit without an autopsy, in many circumstances, it will be extremely difficult to prove a case without one. Even if you know (or think you know) the cause of death, an autopsy can provide valuable information to aid in the lawsuit as well as providing answers to family members about the circumstances surrounding someone’s death.

For example, if someone dies of a heart attack (cardiac arrest) an autopsy may be able to show whether there were any prior, silent attacks, approximately when each such attack occurred and whether or not the final cardiac arrest was the type that could have been prevented with good medical care.

It is better if the autopsy is done somewhere other than at the hospital where the questionable medical care was rendered. If adequate funds are available, consider having the autopsy performed at a university medical center. Specifically request that the doctors involved in the care and treatment of the patient NOT be allowed to be present during the autopsy and for the medical examiner/ pathologist/toxicologist involved in the autopsy NOT communicate with the treating doctors about their findings.

It generally will take a couple of months to get the final report regarding the autopsy. In the interim, whomever is listed as next of kin on the death certificate should IMMEDIATELY order ALL records from the hospital or health care facility where the questionable care was rendered. Bring the photo ID of the heir requesting the records together with a copy of death certificate to the medical records department when requesting records. Write down the name of whomever is taking the order for the records and the date the records will be ready. Please see additional information above about obtaining medical records.

Make sure that the attorney devotes a substantial part of their practice to medical negligence claims and that he or she has done so for a number of years. Mulligan & Banham devote the vast majority of their practice to medical malpractice cases and they have done so for over two decades.

Ask the lawyer about other medical malpractice cases he or she has handled. If he or she hasn't handled a case involving your same scenario before, has he or she had one that involves the same specialty? If so, ask them to describe it. Mulligan & Banham have handled scores of types of medical malpractice cases such as birth injuries, failure to diagnose, surgical errors, wrongful death and many other types of medical errors.

Ask the attorney if he or she has taught medical malpractice to other attorneys or authored any books or articles in the area. If not, what does the attorney do to keep abreast of changes in both law and medicine? Janice Mulligan frequently lectures on various topics in medical malpractice. She has been an invited speaker and published author in several national forums hosted by groups including the American Bar Association (ABA) and the American Trial Lawyers Association (ATLA).

Will the case be handled by the attorney personally or will it be handled by an associate? If handled by an associate, what experience does the associate have and how much direct involvement will the primary attorney retain in the case? Mulligan & Banham is a firm of three experienced lawyers (including one lawyer who is also a practicing doctor). All three lawyers in the firm work together on each and every case. None of your work will be assigned to a junior or inexperienced associate.

What kind of experts will the attorney retain to review the file? Ask to see the experts' curriculum vitae (resume) to make sure the expert has a solid background. Mulligan & Banham pride themselves on hiring only the best experts. Many of them are university professors and/or treat at the best hospitals in the country. Many of them are published and esteemed professionals held in high regard within their own profession.

The investment both the victim and the attorney will make in pursuing the case will involve a tremendous amount of effort, time and resources. Given how difficult medical malpractice cases are to win, the client should make every effort to ensure they have a solid case before proceeding forward.

From society's point of view the filing of a claim which ultimately cannot be proved hurts the civil justice system and will be used to attack the system by those who try to eliminate the rights of victims.