Medical Malpractice Law

Our firm is extremely selective about the medical malpractice cases we take in order to devote our time and attention to those we do take. The following information should be helpful in considering a potential medical malpractice claim.


A medical malpractice action for injury or death must be brought within one year from the date the claimant discovered the negligent act, but no more than three years from the date of injury. Under some circumstances, the statute of limitations is tolled until the claimant discovers or should have discovered the injury. However, you should never assume that the statute of limitations is tolled.

Actions by or on behalf of minors must be brought within three years from the date of the negligent act, unless the child is under the age of six, in which case the action must be commenced within three years or prior to the child’s eighth birthday, whichever provides the longer time period.

If a claimant is insane or incompetent, a guardian can be appointed to permit the claim to be brought within the required time limit.


California follows a pure comparative negligence rule: a claimant’s negligence reduces his recovery but will never bar recovery. The plaintiff’s negligence is compared to the combined negligence of plaintiff and of all negligent participants, whether or not joined as parties, to determine the amount of the reduction.


In general, a wrongdoer’s liability may be joint, several, or joint and several. An obligation imposed on several wrongdoers is presumed to be joint, with the following exception. In any action based on principles of comparative fault, liability is several only with respect to non-economic damages, including pain, suffering, inconvenience, mental illness, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, and humiliation. In such cases, a defendant’s liability for non-economic damages is several only, and his liability to the claimant is determined by reference to his percentage of fault.


California law holds a hospital liable for the acts of a physician if he is an actual or ostensible agent. An ostensible agency is established when a principal intentionally, or by want of ordinary care, causes a third person to believe another is an agent. When a hospital holds out a physician as an employee, a patient may reasonably assume that the physician is an employee of the hospital without making an inquiry on the subject.


To establish a prima facie case of medical malpractice, the claimant must present expert medical testimony verifying the claims of negligence, unless the fact finder can infer negligence from the facts.


California places a cap on non-economic damages for medical malpractice cases. Non-economic damages, defined as compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary injury, are limited to $250,000. The cap applies whether the case is for injury or death, and it allows only one $250,000 recovery in a wrongful death case. There is authority, however, for allowing separate caps for the patient and a spouse claiming loss of consortium. The cap on non-economic damages has been held to be constitutional.


California limits the amount attorneys in a medical malpractice case can collect pursuant to a contingent fee arrangement to 40 percent of the first $50,000, 33 1/3 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount that exceeds $600,000. This limit applies regardless of whether the recovery is by settlement, arbitration, or judgment. If the contingent fee arrangement is based, in part, on an award of periodic payments, the court is to place a total value on the payments based upon the projected life expectancy of the claimant, and then calculate the contingent fee percentages.


California allows defendants in medical malpractice actions to offer evidence of the claimant’s receipt of payments in connection with the injury in the form of social security benefits, workers’ compensation benefits, health insurance, accident insurance, or any other contract providing for health care. The claimant may then offer evidence of any amounts paid or contributed to secure the right to the collateral benefits. No provider of benefits can recover them from the plaintiff or by subrogation from a defendant.


California’s General Immunities Act contains a special section for hospital and public health activities. California waives its immunity from liability for injury inflicted on a patient of a mental institution by another patient. Nothing in the code exonerates public employees from liability for injuries caused by their negligence, wrongful acts, or omissions. The public entity has the discretion to pay any judgment against employees; however, the public entity must pay judgments against public employees lawfully engaged in the healing arts and acting within the scope of employment.

Public entities which maintain medical facilities regulated by the State Department of Health Services, Social Services, Developmental Services, or Mental Health are liable for injuries caused by a failure to provide adequate equipment, personnel, or facilities.

Some attorneys or law firms brag about their settlements or verdicts in an attempt to entice clients. Altemus & Wagner does not do so because every case is unique. More importantly, Altemus & Wagner puts the same quality and aggressiveness into every case, not only the big cases.

You will find a great deal of helpful information on this website. If you don’t find what you’re looking for, call us at any time. You will be able to speak directly to an attorney who will answer your questions. There is never a charge to call and talk about a personal injury matter. You may also go to our online personal injury questionnaire and submit your information online. An attorney will contact you right away. If you prefer, we can also visit you in your home, place of business or care facility to discuss your personal injury claim.

Click here to fill out our online case questionnaire.

Since most of the time injured victims will suffer some form of loss (be it income, physical, emotional, or other), our legal system provides for compensation in these instances. However, the law only provides a limited time within which to pursue your claim, so you should contact us right away. If you wait too long, you will be forever barred from pursuing your claim.

If you have been injured in an accident, call Altemus & Wagner so you can avoid mistakes commonly made by injured individuals. Most likely, there will be a source of recovery for you. Don’t forget our online personal injury questionnaire where you can submit your information online.


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