California Law
California Personal Injury Law: Medical & Professional Negligence
Personal Injury Law: Medical & Professional Negligence
Professional negligence occurs when a professional improperly performs his or her duties out of carelessness. Plaintiffs suing for professional negligence must prove that the professional breached his or her duty of care, resulting in the plaintiff's injury. This chapter examines some of the issues involved in professional negligence lawsuits against doctors, lawyers, engineers, architects, and accountants. A negligence lawsuit, though, is not the only way in which a professional can incur liability for job-related improper conduct. A professional also may breach a contract or commit an intentional tort against a patient or client.
Medical Negligence
Medical negligence comprises the majority of professional negligence lawsuits filed in this country. This is not to say that medical professionals are more prone to committing negligence, but that they are the target of more lawsuits--which is not surprising, given the gravity of the situations faced every day by the medical professional. The number of lawsuits against other professionals, however, is increasing and many of the concepts used in those lawsuits are adapted from the medical negligence context. Thus, an understanding of medical negligence is a good introduction to professional negligence generally. It should be pointed out that the term medical negligence does not apply only to doctors. Other health care professionals, such as psychologists, nurses, dentists, and physical therapists, also may be sued for medical negligence.
As in other negligence lawsuits, a plaintiff suing for medical negligence must show the four elements necessary to prove negligence: duty of care, breach of duty, injury, and proximate cause (see the Personal Injury Law: General Chapter for more discussion of negligence).
Duty of Care
Once a doctor or other health care professional agrees to diagnose or treat a patient, he or she has assumed a duty of care toward that patient. Doctors have a duty to exercise that reasonable degree of skill, knowledge, and care that is ordinarily possessed and exercised by members of the medical profession under similar circumstances. Both medical generalists and specialists are held to that standard of learning and skill normally possessed by such generalists or specialists in the same or similar locality under the same or similar circumstances. But what about a duty to persons who are not patients? For example, does a doctor have a legal duty to help a stranger choking in a restaurant? The answer is no. At present, the law does not place an affirmative duty on anyone, including health care professionals, to render assistance to others in most situations. Of course, a doctor may help if he or she wants to, but there is no legal obligation. Generally, a health care professional does not have a duty to non-patients, but there are exceptions. A psychotherapist whose patient has made specific threats against a specific person may have a duty to warn that person, especially if the patient has the ability to carry out those threats. In such a situation, California law permits the psychotherapist to breach his or her duty of confidentiality and warn the person threatened by the patient.
Breach of Duty
Unlike ordinary negligence cases, proving that a health care professional breached his or her duty of care involves proving what a reasonably competent health care professional would have done in a similar situation. Unfortunately, most judges and jurors do not have a clue as to what is an acceptable medical practice. As a result, medical negligence lawsuits often become battles between medical experts testifying as to whether the defendant breached his or her duty of care.
In general, a reasonably competent health care professional is one who stays abreast of the relevant treatment literature and uses methods commonly accepted in the profession. A professional who disregards well-established medical standards or attempts to perform procedures beyond his or her capabilities exposes himself or herself to a possible lawsuit. Yet health care professionals often differ on the best course of action in a particular situation. Medicine is an inexact science. What one professional questions as dubious judgment, another may find quite sound. For this reason, proving breach of duty may be the plaintiff's most difficult task in a professional negligence lawsuit.
Proximate Cause
Proximate cause is defined legally as a cause of an injury by a natural and continuous sequence, unbroken by any intervening event, and without which the injury would not have occurred. A simpler way of thinking about proximate cause is that it is an act that caused the plaintiff's injury for purposes of assigning liability. A court may not find a defendant liable if there is not a clear line of causation between the defendant's act and the plaintiff's injury. In some cases, a defendant may have caused a plaintiff's injury in a technical sense, but the chain of events leading up to the injury was so convoluted and improbable, that the defendant would have had no reason to be aware of any possible risk. In cases in which no reasonable person could have foreseen injury to the plaintiff, courts will not hold the defendant liable.
It is important to note that causing an injury is not necessarily medical negligence. All of the elements of a medical negligence action go together. A health care professional must cause an injury by breaching the professional's duty of care to the plaintiff in order to be held liable.
Damages
Persons who successfully sue for medical negligence are entitled to receive compensatory damages that may include damages for pain and suffering or lost wages. However, noneconomic damages such as pain, suffering, inconvenience, physical impairment, and disfigurement are limited to a maximum of $250,000. Plaintiffs also may be entitled to punitive damages under extreme circumstances.
Affirmative Defenses
A defendant asserting an affirmative defense in a medical negligence action admits the existence of negligence, but argues that there are other factors that excuse the defendant's conduct. One affirmative defense used in such cases is conflicting legal duty. For example, a doctor who releases information about a patient's medical condition normally violates the patient's right to confidentiality, subjecting him or her to liability. However, in limited situations, a doctor is legally required to inform others of a patient's medical condition. A doctor who visits a sick person in any place or structure where any person is ill of any infectious, contagious, or communicable disease must promptly report that fact to the local health officer. Also, the California Penal Code requires hospitals, pharmacists, and doctors to report any injuries inflicted by violence. If a patient suffers from a gunshot wound, the doctor treating him or her must inform the police. A doctor treating a minor who appears to be a victim of child abuse must report the condition to the appropriate authorities.
Consent is perhaps the most frequently asserted affirmative defense in medical negligence cases. Consent means that the health care professional informed the plaintiff of all risks associated with a particular procedure, the plaintiff consented, and the professional did not go beyond the procedures to which the plaintiff agreed. Doctors and hospitals have tried to protect themselves from negligence suits by having patients sign consent forms before patients receive treatment. These forms typically include warnings that medicine is an imperfect art and that patients must assume all risks for any procedures. But a person does not give up all of his or her rights by signing a consent form--particularly if the doctor does not fully inform him or her about the risks, goes beyond the agreed to procedure, or fails to abide by well-established medical techniques. A patient also may sue a doctor or a hospital if a person other than the one named on the consent form performed the procedure.
California's Procedure for Filing a Medical Negligence Claim
No action based upon medical negligence may be commenced in California unless the defendant has been given at least 90 days' prior notice of the intention to commence the action. The notice must contain the legal basis of the claim and the type of loss sustained, including the specific nature of the injuries suffered. If the statute of limitations would run during this 90-day notice period, notice tolls (stops) the statute of limitations until the end of the 90-day period. The statute of limitations for a medical negligence claim is three years from the date of injury or one year after the plaintiff discovers, or should have discovered, the injury, whichever occurs first.
Legal Negligence
Lawyers are becoming an increasingly popular target for professional negligence suits. Although there is no precise definition of legal negligence, generally a lawyer commits negligence when he or she fails to provide quality legal services to a client by carelessness. Filing a lawsuit against an attorney for negligence is different from filing a complaint about an attorney with the State Bar of California. A legal negligence lawsuit, like a medical negligence lawsuit, entails proving the professional committed negligence and entitles a successful plaintiff to damages. A complaint filed with the State Bar of California is processed through the bar association's lawyer grievance system and, if valid, may subject the attorney to disciplinary action. Damages are not recoverable through the lawyer grievance system. (For more information about the lawyer grievance system, see the How to Hire an Attorney Chapter.)
As in any negligence lawsuit, a plaintiff suing for legal negligence must prove the four elements of negligence: duty of care, breach of duty, injury, and proximate cause.
Duty of Care
In general, an attorney owes a duty of care to a person once that person hires the attorney and becomes a client. However, sometimes there can be confusion as to whether an attorney has been hired. Many consumers mistakenly believe that consulting an attorney is the same as retaining or hiring an attorney. It is not. After an initial consultation, consumers are strongly encouraged to clarify with the attorney whether or not the attorney has been retained.
The duty that a lawyer owes a client has two components--competency and fiduciary. The lawyer must exercise the same legal skill as a reasonably competent attorney. No lawyer is expected to know the law so well that he or she can give perfect answers to every legal question, but lawyers are expected to know how to research issues and to recognize the limits of their knowledge. As a fiduciary of a client, an attorney is obligated to treat all information relating to a client's representation as confidential and to zealously represent the client's interests. This duty includes the disclosure of any conflicts of interest that might impair the attorney's ability to represent the client.
Interestingly, some courts are expanding an attorney's duty of care to persons who are not clients. For example, beneficiaries to a will might bring a lawsuit against an attorney who improperly prepared or executed a client's will, resulting in the will being held invalid. Also, depositors in a failed savings and loan may sue attorneys who advised the savings and loan.
Breach of Duty
A lawyer breaches his or her duty of care if the lawyer fails to provide reasonably competent representation or violates his or her fiduciary obligation. While proving that an attorney had a conflict of interest or otherwise violated his or her fiduciary obligation may be straightforward, proving an attorney failed to provide reasonably competent representation is more difficult. Lawyers may disagree about whether a particular course of action was reasonable. And, it may be unclear whether an alternative course of action would have provided a different result. However, there are some behaviors that clearly go beyond the bounds of competent representation. An attorney who simply forgets a filing deadline and permits the statute of limitations to expire, thereby destroying a client's cause of action, is an obvious candidate for a professional negligence action.
Proximate Cause and Damages
Causation is easy to prove if an attorney misses a deadline or gives advice that is clearly wrong. But proving causation can be more difficult in cases in which an attorney pursues a particular strategy that ends up injuring the client. In suing the attorney, the client (now the plaintiff) must show that his or her injury was sufficiently related to the attorney's breach of duty to be the proximate cause. This may entail trying to prove what would have occurred had the attorney chosen a different course of action. But the variables attendant to proving "what might have been" are numerous, and a defendant-attorney may argue the injury would have occurred regardless of his or her chosen course of action.
Suffering an injury as a result of an attorney's representation is not the same as professional negligence. An attorney might have caused an injury, but if the attorney did not breach the duty of care, he or she will not be liable for damages. Successful plaintiffs are entitled to compensatory and, in rare cases, punitive damages.
Accountant Negligence
Like health care professionals and attorneys, accountants can commit, and be sued for, negligence. If an accountant fails to provide services at the level expected of a reasonably competent accountant, and the client suffers injury as a result, the accountant may be liable for damages.
Accountant negligence lawsuits differ in a number of ways from medical or legal negligence lawsuits. One of the most important differences is the role played by written rules of conduct for the accounting and auditing professions. These rules, known as Generally Accepted Accounting Principles (GAAP) and Generally Accepted Auditing Standards (GAAS), frequently are used in accountant negligence lawsuits to judge the defendant's actions. While adherence to these rules is not an absolute defense to liability, it is more difficult for a plaintiff to prove negligence by an accountant who acted within the GAAP or GAAS guidelines.
Another difference is that many accountant negligence lawsuits are based on violations of federal and state statutes relating to the sale of securities. Financial statements generated by accountants frequently are used in connection with securities offerings and often are submitted with annual reports or other periodic filings companies must make in compliance with requirements of the Securities and Exchange Commission. If the financial statements are erroneous and lead to a negative market impact, investors may try to recoup their losses by asserting claims against the accountants who prepared the financial statements. The statutes most commonly used to bring such claims are the Securities Act of 1933, the Securities Act of 1934, and the Racketeer Influenced and Corrupt Organizations Act (RICO). A detailed discussion of these Acts is beyond the scope of this chapter, but an attorney experienced in accountant negligence lawsuits can advise potential plaintiffs of the duties accountants have under these laws.
Engineer and Architect Liability
Engineers and architects also can be sued in their professional capacities. If a structure proves to be unsafe, the engineer responsible for building it or the architect who designed it can be held liable. Also, if an engineer or architect reviews a structure for a prospective buyer and carelessly misstates the structure's soundness or durability, he or she can be held liable.
However, unlike medical and legal negligence lawsuits, the theory of recovery in a lawsuit against an engineer or architect may be contract-based as opposed to tort-based. That is, the duty owed to a property owner derives not from the common law theory of negligence, but from a contract between the property owner and the engineer or architect. It is, therefore, important for a person to have an attorney review such a contract before signing. An attorney also should review any modifications to a contract before they are finalized. Seemingly innocuous language can substantially change a professional's responsibilities and potential liabilities.
In most actions against architects or engineers, the plaintiff's attorney must execute a certificate stating that he or she has reviewed the facts of the case, has consulted with and received an opinion from at least one architect or engineer in the same discipline as the defendant, and has concluded based on this review and consultation that there is a reasonable and meritorious cause for filing the action. Alternatively, the attorney may execute a certificate stating that he or she was unable to obtain a consultation with an architect or engineer because the attorney had made three separate good faith attempts with three separate architects or engineers and none of those contacted would agree to the consultation.