Were You or Someone You Know Injured by Professional Negligence?
If you or someone close to you is looking for a California attorney who handles legal claims against others, whether they be from the negligence of a homeowner to that of another driver, then consider retaining Matt Wertheim. In his 34 years of representing individuals and small businesses, Matt has become an expert in the area of California Professional Malpractice claims. This article will cover the basic outline of a such a claim, as well as some of the common considerations, pitfalls, insurance issues, and other problems that arise for these types of cases.
* In this article, when there is a sentence followed by “Cit.” this stands for “citations,” and my pointing out that California law is being cited. Relevant cases/laws can be readily found via an internet search. This article is not intended for attorneys or law students who are researching California Professional Negligence Claims and are looking for case citations, etc. Instead, this article is intended for those who think that him/her, a friend, business associate, or a loved one who was/is a victim of the negligence of another (and that such negligence caused the suffering of harm to the body or pocket book).
Is Professional Negligence an oxymoron like Jumbo Shrimp?
No, it’s something very real and caused by the mistake, or negligence of a doctor, dentist, accountant, attorney, architect, contractor, etc. (collectively “professional advisor” or “PA”)
“I like my doctor, but I think he/she messed up.” “I changed accountants, and the new one says my old one made a mistake that cost me lots of taxes/money.” “My attorney missed a filing deadline which caused me to lose my claim.”
The above statements were made to me by three separate past clients when they first spoke to me about their PA. After gathering some initial facts and hearing the client’s story, I always explain to such potential client(s) that the outcome of their claim against their PA will be dependent on expert opinion testimony/evaluation by someone in the same profession as the allegedly negligent PA.
This article will address much more than just whether one has a claim or not, insurance, and expert witnesses, but also help understand the bigger picture to help the victim/potential claimant tell his/her story, gather evidence, and help your attorney achieve the outcome you want, and deserve.
Different Types of Professional Negligence
Medical Malpractice
One type of professional negligence is when a doctor makes a “mistake” with regard to the treatment and/or diagnosis of a patient. An obvious example would be if a patient went into the hospital to have her left leg amputated and the doctor mistakenly cuts off the patient’s right (good) leg. In such a case, the doctor (and her insurer) would quickly settle the claim, because the mistake, or negligent act, was obvious and no expert could defend such a mistake. However, in most medical malpractice claims the facts fall into more of a gray area wherein experts can often disagree as to whether there was malpractice.
For example, if someone has a colonoscopy and the doctor accidentally and uninteniontally perforates the patient’s small intestine such that the patient has to be hospitalized for a few nights, is this malpractice? One part of the analysis is determining whether the injury was a known risk, or complication, of the surgery and whether an expert believes the injury was atypical, or malpractice. For such a case, it would help the client to have the medical records reviewed by a doctor who practices in the same area of medicine-here a gastroenterologist. For the patient to have a viable/good claim for medical negligence the retained medical expert has to be of the opinion that the care the patient received a) fell below the standard of care in the community; b) that the injury/damage was proximately caused by the malpractice; and c) that the injury/complication was not a known risk, such that the injury claim is barred by a commonly used written document known as “informed consent” (which most patients routinely sign). The above case example comes from a past client whose case was not pursued because in the expert’s opinion the injury/complication was a known risk and in his opinion even the best of doctors occasionally perforate/tear the lining of an intestine when performing a colonoscopy. Most experienced attorneys will not take any medical malpractice case unless, and until, there is an expert doctor supporting the client’s claim.
Accounting/Legal Malpractice
Another type of professional negligence is when an attorney or CPA make a mistake which causes the client damages. An example of clear accounting and/or legal malpractice would be missing a filing deadline. More difficult claims are when a client loses an appeal to the IRS in a claim against the CPA or loses a trial in a claim against the attorney. Again, an expert must examine the facts and give her opinion regarding malpractice. In California, only qualified expert witnesses can give opinion testimony. Cit.
In addition to having an expert provide an opinion on whether there was negligence, these cases often require other supporting experts. For instance, if the claim against the CPA is that monetary loss was suffered, how are those damages calculated? An expert economist is often retained to work up the numbers on behalf of the client. Every case involves at least 2 key components: is the defendant/PA negligent; and how much damages were caused? If the damages were minimal, e.g. a broken tooth caused by a negligent dentist, then also consider going to small claims court where you can make a personal injury claim for up to $10,000 without having to retain, or pay, an attorney. In fact, unless it is an appeal from a small claims court judgment, attorneys cannot even appear in small claims court. Cit.
Construction Defects
While typically not thought of as a standard type of professional negligence, claims against general contractors for defective workmanship are also a type of professional malpractice. Over the years I have helped scores of claimants (residential and commercial real estate owners) make claims against their general or subcontractors related to substandard work. Often these contractors have no, or limited insurance (e.g. $15,000 bond required by the California Contractors State Licensing Board). Cit. Often the contractors have limited assets, so while there may have been malpractice, a good lawyer will analyze the costs of proceeding versus the likely recovery on behalf of the potential client, and this process may also involve the retention of a neutral expert to evaluate the work that was negligently performed.
Regardless of the type of professional negligence, whether the allegedly negligent professional carried malpractice/E & O insurance at the time of the alleged “occurrence” will, at some point, also be a key issue. The existence of ample insurance coverage often assures that a claimant will be compensated once malpractice is shown.
Types of Insurance/Disclosure Obligations/Impact of Policy Terms
In California, all attorneys whose work will likely exceed four hours must disclose in writing, at the time of the engagement, whether she has professional liability insurance. Cit. When you are first selecting counsel, while maybe not the best way to get started, make sure your attorney has insurance in the unlikely event they make a big mistake. If you later bring a claim against the attorney there can still be many hurdles to overcome that relate to the control of the insurer and the attorney’s policy terms.
Some policies are what is known as “burning limits” with amounts paid for defense attorney’s fees and costs being reduced from the total amount of coverage. So for example if the policy is $500,000 and the insurance company spends $200,000 on legal fees and costs, then there will only be available $300,000 in policy benefits if/when the case is resolved through trial, arbitration, or mediation (see a short article on the difference between mediation and arbitration). Lastly, and significantly, the attorney defendant has no control over settlement and his insurer can and will settle the case as it sees fit. That is, if the lawyer does not want to settle, the insurer can anyway.
For doctors, the policies are much different. Most doctor, dentist, or hospital malpractice policies give the insured (doctor) total control over when and/or if to provide consent to settle. Many doctors have very big egos and never ever feel that they could possibly have made a mistake. One past client needed a second shoulder surgery and her orthopedic surgeon (who did the first surgery) told me “I have never ever had to revise any of my surgeries.” In other words, this doctor felt that his work was perfect and beyond reproach. It is doubly hard to sue these types of doctors (with big egos) because they are likely to never provide their insurer consent to settle. Hence, when looking at whether to sue such a doctor, one must factor in the personality of the accused doctor, and possibly anticipate and expect a long drawn-out legal fight (depending on the client’s speculation/analysis of the doctor’s ego/attitude/willingness to admit her mistake).
In one past case the matter settled right after expert depositions. The defendant doctor could read the testimony under oath of her peer and understand why another doctor in the community felt there had been malpractice. This defendant doctor was then “on board “ to resolve the dispute and compensate her former patient, and gave her insurer written consent to negotiate a mutually acceptable monetary settlement within the policy limits. Without the doctor’s consent the insurer cannot settle the claim.
For contractors, the policies are few and far between. As noted previously, to be licensed in California a small bond must exist for the contractor’s work. Cit. However, there may already be many other claims against such bond, so suing contractors often can be “good money after bad.” Quickly try and determine if the contractor carries malpractice insurance and then get an expert on board to determine if there was malpractice. Unlike attorneys whose fee agreement says whether they carry malpractice insurance, contractors and doctors (pre-litigation) have no obligation to disclose whether they carry malpractice insurance, and often refuse to cooperate. There is what is known as a “cooperation” clause in most insurance policies and an insurer could deny coverage if the insured contractor fails to timely tender the claim, or cooperate. Noting this duty to cooperate with his insurer in a well written and conciliatory letter to the contractor would be a good way to get his attention, provide insurance information, and cooperation.
The Ultimate Question-was there Malpractice?
Again, the answer to this question almost always requires the opinion of an expert witness. It is not enough to have you or your lawyer give the opinion that the doctor, CPA, attorney, or contractor committed malpractice. That opinion has to be from a qualified expert. Cit.
To be “qualified” and give testimony in court the expert must be approved by the judge before he/she can give opinion testimony to a jury. Often this questioning of the expert is done outside the presence of the jury. There is extensive case law in California that addresses how and upon what basis an expert should be approved/qualified by the court. Generally, the expert must work in the same “field” as the accused PA. In a malpractice case against an orthopedist one could not qualify as an expert if the expert worked as a pediatrician-taking care of children. The expert must generally work in the same “community,” which is loosely defined. A San Francisco malpractice claim could be looked at by a Los Angeles expert in the same field. However, malpractice that occurs in a remote village in Alaska needs an expert familiar with the same circumstances/hurdles/practicalities. In general, try and hire an expert with a great resume who has qualified as an expert in the same court, and who works for both claimants and defendants. There are many experts who only defend PA’s accused of malpractice. In my opinion, these experts are not well respected by juries as their biases can easily be drawn out in cross-examination and their opinions not respected or followed by the trier of fact (Jury or Judge).
If the expert says there was malpractice-that the PA’s actions were negligent, then the next key question is whether such malpractice was the proximate cause of an injury or damages. In one case I had many years ago the defendant hospital failed to read a chest x-ray that showed a large malignant tumor. In that case the experts all agreed that the failure to read the x-ray was malpractice, but the experts disagreed on damages. The hospital’s expert gave the opinion that my client’s tumor would have grown anyway and the hospital’s experts cited many cases that said that if the patient’s outcome was not changed by the malpractice (i.e. she would have died anyway), then there was no injury. Cit. This case settled at mediation for a low six figure amount. Had there been a way to prove that the malpractice caused the client to pass away this would have been a seven-figure case. The client was distraught at losing his wife, but very pleased that this case led to hospital computerized protocols that now assure that each and every x-ray is read.
Often other experts like economists, life care planners, etc. are required to estimate past and future damages, and these experts are retained once the "malpractice" expert has given the "thumbs up" to the claim against the PA.
Conclusion
Professional negligence claims are not easy, and potential clients are often told by their new attorney, accountant, or doctor that the client’s prior PA made a mistake. If that is the case, ask your new professional advisor if he will be your expert? If the answer is “yes,” then seek out an excellent California attorney to represent you. If the answer is “no,” then ask why, etc., so you can move on and not focus on the past.
When you go to consult an attorney have a summary of what your new PA says regarding why the prior PA made a mistake, put your story in chronological order, and have all your supporting papers organized and copied. If you were injured keep a diary of the impact the malpractice had on your life from day 1 to the present. You and your loved ones can best tell the story of your damages and it’s up to you to be actively involved in your claim to help your attorney obtain the best possible result.
“To err is human, to forgive, is divine” wrote Alexander Polk in 1896. Unfortunately, professionals who commit malpractice cannot be forgiven and the only way to be properly compensated in the 21st century is to timely bring legal action. I have not covered the various time limitations for bringing a claim, but know that you should consult a California attorney as soon as possible so that your claim is not time barred. For example, a medical malpractice claim against a public hospital has to be brought within six months. Cit. and other claims have 1 or 2 year statutes. Cit. So do not dilly dally or delay if you think you, a colleague, or loved one, was injured or damaged by the fault of another.
If this article helped you or a loved one decide whether to bring a claim for professional negligence, then my goal was achieved. Accidents and mistakes do happen and those who make them should admit his/her mistake and learn from such error. However, most often it takes a great attorney and a team of experts on your side to obtain the compensation you deserve.
