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San Jose Medical Malpractice Attorney

We put our trust in medical professionals to treat, diagnose, and provide high-quality care to ourselves and our loved ones. When a physician, nurse, hospital, or other provider fails to competently provide medical care, it’s called malpractice. Medical malpractice can involve a number of serious consequences, including worsening health outcomes and even death. If you believe that you or a loved one may have been a victim of medical malpractice, contact the San Jose medical malpractice lawyers at Henshaw Law Office for a free case evaluation.


What is Medical Malpractice?

Medical malpractice results from failure to act or provide care in a reasonably competent manner. There are four basic elements to medical malpractice cases:

There are several different types of malpractice, but the majority of cases fall into one of several broad categories:

Failure to Diagnose

A failure to diagnose arises when a doctor fails to discover an illness or condition that another competent provider would have. If another provider would have made a different diagnosis or diagnosed a condition sooner, and this would have led to a better health outcome, this forms the basis of a viable medical malpractice claim.

Improper Treatment

Another common medical malpractice claim arises when a provider performs a different treatment than instructed, or incorrectly administers it.

Failure to Warn of the Risks

There are risks and benefits to any medical procedure. Doctors and hospitals have an obligation to provide “informed consent,” in which they detail the positives and potential downsides of any medical procedure before obtaining consent from the patient. If a patient is not properly counseled on the risks, and would have made a different decision in light of knowing these risks, this may constitute medical malpractice.

Medication Errors

As one of the most common types of medical malpractice, medication errors may occur when a patient receives the wrong dosage, the wrong medication, or a medication that interferes with another drug that a provider knows they were taking.

Surgical Errors

Errors in surgery may be medical malpractice when they lead to illness, injury, or worsening health outcomes. Examples include operating on the wrong body part, leaving instruments or surgical pads inside the body, or failing to treat a postoperative infection.

Anesthesia Errors and Birth Injuries

Too little or too much anesthesia can lead to disastrous consequences, including trauma and brain injury. Failing to intervene in a prolonged labor or intervening too forcefully can lead to injuries in both the baby and the mother. Examples include Klumpke’s palsy, Erb’s palsy, shoulder dystocia, and cephalohematoma.

Medical Malpractice in San Jose, California

Since San Jose is nestled in one of the biggest metropolitan areas in the country, it is home to many hospitals and trauma centers. These include:

According to the National Practitioner Data Bank Annual Report, about 9.5% of all malpractice claims in the United States originate in the state of California. California physicians paid an average of about $176,000 per incident. In 2016, there were 15,078 instances of medical malpractice throughout the state.

Medical Malpractice Laws and Statutory Rules in California

Each state sets its own guidelines regarding medical malpractice. If you’re considering filing a malpractice claim against a provider and getting in contact with a San Jose medical malpractice lawyer it makes sense to familiarize yourself with California laws and procedures that govern medical malpractice lawsuits.

Statute of Limitations

Every state, including California, has specific deadlines for filing lawsuits against a provider. There are different timelines for filing a claim, which can be confusing to differentiate. In California, you have three years from the date of the illness or injury to file a medical malpractice lawsuit, or one year after its reasonable discovery. There is a difference between the two, as sometimes an illness is obvious, but in other cases, such as a failure to diagnose, the onset of the consequences from malpractice may be less clear. To minimize confusion, it’s in your best interest to contact a qualified San Jose medical malpractice attorney as soon as you suspect medical malpractice. If you wait too long, you run the risk of not being able to gain compensation for your injuries, even if a provider committed negligence.

The statute of limitations also works differently in cases involving a minor child. In California, parents must file lawsuits on behalf of a minor child within 3 years of the alleged malpractice. If the child is under the age of six, plaintiffs have 3 years or until the child’s 8th birthday, whichever window is longer.

There are also a few exceptions in which a plaintiff can extend filing for California medical malpractice cases. These include when:

Procedures in a Malpractice Case

Medical malpractice cases have special filing deadlines, and they require other special considerations, as well. Some of these include:

Who Can Be Held Liable for Medical Malpractice?

The defendant(s) in a medical malpractice claim will be the party responsible for the proximate, or main, cause of the plaintiff’s injury or death. This party will depend on the circumstances leading up to the incident, as well as who was directly or indirectly involved with patient care. The hospital or healthcare center itself could be liable for medical malpractice, as could one of its staff members. The following could be potential defendants in medical malpractice claims:

The Hospital

A hospital may take liability for medical malpractice if it or one of its employees caused or contributed to the patient harm. Employees generally include cleaning and maintenance crews, nurses, assistants, and some physicians. For the most part, however, doctors and surgeons are independent contractors, not employees of the establishment.

An Individual Practitioner

If an independently-contracted physician caused the harm, that individual might be solely liable for the damages. In other words, the hospital might not share responsibility if the independent contractor was the sole offender. The doctor’s private insurance company may pay out the patient’s settlement or judgment in these cases.

A Third Party

Some medical malpractice claims involve the negligence of a third party, such as a pharmacy, drug manufacturer, or medical equipment manufacturer. Injured patients have the right to name third parties as defendants in their cases. They will simply have to prove that the third party was negligent, and this negligence caused the injury.

California’s civil laws allow medical malpractice claims to name more than one defendant. If the courts find multiple parties to blame for the same incident, each will be jointly and severally liable for the damages. This means that each party will owe the plaintiff the full amount of the settlement or judgment award. Work with a qualified San Jose medical malpractice attorney to discover all the parties that might be liable for your medical malpractice case.

Is There a Difference Between Professional Negligence and Malpractice?

Professional negligence and malpractice are similar in meaning and often used interchangeably. They have two separate meanings in the eyes of the law, however. Someone can be professionally negligent yet not guilty of malpractice. Someone cannot be guilty of medical malpractice without being professionally negligent.

Professional negligence can refer to any working professional’s lack of due care or carelessness that causes an injury. An attorney, executor, financial advisor, or other person (medical or non-medical) can be guilty of professional negligence. Medical malpractice, on the other hand, refers specifically to the malpractice of professionals in the medical field. Malpractice refers to the negligence not only of any individual, but of a medical practitioner.

A personal injury claim against a professional for negligence will abide by different rules than a medical malpractice claim. Medical malpractice lawsuits specifically relate to those in the medical field. They involve duties of care that doctors and other healthcare professionals have to their patients. You will only have a medical malpractice claim if your case involves medical negligence. You might still have a case against a different type of professional, however, if your incident occurred with a non-medical person or party.

Types of Medical Practitioners

Any given hospital can staff dozens of different medical practitioners with different specialties to treat patients. It does not matter what type of doctor caused your injuries or a loved one’s death. An injured patient has the right to file a claim against all types of medical practitioners, regardless of field type or expertise. This includes:

Although each hospital is different, for the most part, physicians and medical practitioners are technically not employees of the establishment. They are their own bosses, working at the hospitals under contracts. If this is the case, you might not be able to file a claim against the establishment. Rather, you can file against the individual. For more information about your medical malpractice case, contact us for a free initial consultation.

How Do I Know If I Was a Victim of Medical Malpractice?

Our San Jose medical malpractice lawyers know while every medical malpractice case is unique, there are some common signs of medical malpractice. If you notice any of the following, it may be a “red flag” that your provider isn’t providing competent care:

1. Your Diagnosis Was Based on a Single Test

If you have a serious medical condition, you’ll likely require a series of tests to confirm your condition. A provider should arrive at a diagnosis after a thorough physical exam, blood work, imaging, and other tests. Failing to perform a comprehensive examination could be indicative of negligence.

2. Your Treatment Plan Isn’t Working

If your doctor issued a treatment plan, but it isn’t proving successful, it could be a sign that you were misdiagnosed. There are a couple of problems with misdiagnosis- firstly you aren’t receiving appropriate care for your condition. Secondly, you may be receiving treatment with serious side effects, that isn’t even helping. Either of these scenarios can lead to poor health outcomes.

3. Your Doctor Doesn’t Listen to Your Concerns

Perhaps one of the largest indicators of medical malpractice is feeling like your doctor puts your apprehensions on the back burner. It’s essential to have a mutually respectful relationship with your provider. If you’re not finding relief for your condition and your doctor seems oblivious to your discomfort, it could be a sign of medical malpractice.

4. You Got a Different Second Opinion

It’s always a good idea to seek a second opinion, especially if you feel your provider isn’t taking your concerns seriously. If another provider’s opinion varies widely from the original, it may be a sign of medical malpractice. In this case, seek an opinion from a third provider. If the second and third providers agree, it may strengthen the foundation of a medical malpractice claim.

5. There Was a Mishap in Surgery

Finally, you may have grounds to a medical malpractice claim if your provider informs you of a glitch during surgery. Some surgical complications are unpreventable, but others arise from provider negligence. If you suspect that your surgical error resulted from the latter, you may have grounds for a malpractice claim.

What Can I Do Next?

If you suspect that your medical provider committed negligence, and it led to a poor health outcome or delay in treatment, then you have the legal right to pursue damages. The best thing you can do is to consult with a San Jose medical malpractice attorney. The medical malpractice lawyers at Henshaw Law Office are familiar with the intricacies of medical malpractice law. We work closely with clients to clear up the confusion, provide answers and advice, and hold providers accountable for their actions.

When you schedule an appointment with our firm, you can expect a quick response from one of our experienced San Jose medical malpractice attorneys, not an assistant or associate. Since we handle every aspect of the case, we believe that your contact should be with those who know your case best.

Your doctor has a duty to provide you with quality care, and therefore deserves to be held accountable for his or her actions. To schedule a free case evaluation with one of our San Jose medical malpractice lawyers, please contact us.