Medical Malpractice Letter of intent, Concealment, and Statute of limitations for medmal

[overwhelmed_overthis]

Jurisdiction

California

I plan on filing a medical malpractice suit. The date of injury was 7/1/24. Does this mean I need to inform the provider of my intent to sue by 4/1/25 (so that I can file the claim before the one year statute in CA)? Are there any templates for informing the provider – is it something that a layperson can do? In other words, can it be fairly generic or, ideally, should I have already retained a lawyer by then and have him write the letter of intent? I ask because it's a complex situation possibly requiring me to hire private investigators in order to gather enough info that I could present to a lawyer who might be interested in taking the case. The reason for this is that the provider has deliberately withheld information, will not send me my records, etc. I know that there is an extension of the statute for concealment but I don't know if that will apply here since I suspect malpractice has taken place but I have not yet uncovered all the evidence. Is there any extension of the statute for concealment if I'm not able to find an attorney to take the case because I haven't yet gathered sufficient evidence even if I knew that harm has occurred? Thank you in advance.

 

[Zigner]

Hire an attorney.

 

[adjusterjack]

I plan on filing a medical malpractice suit. The date of injury was 7/1/24. Does this mean I need to inform the provider of my intent to sue by 4/1/25 (so that I can file the claim before the one year statute in CA)?

The statute of limitations is not a deadline for "filing a claim" it is a deadline for filing a lawsuit. If you miss the deadline for filing a lawsuit, you fail.

Are there any templates for informing the provider – is it something that a layperson can do? In other words, can it be fairly generic

You can google and find templates on the internet.

it's a complex situation

Then hire a lawyer. Don't risk messing it up.

the provider has deliberately withheld information, will not send me my records, etc

That's what happens during the discovery period after a lawsuit is filed.

I know that there is an extension of the statute for concealment

No, you don't know. Because that's not how it works.

It's

1. one (1) year after you discovered the injury (or should have discovered the injury with reasonable diligence), or
2. three (3) years after the date of the malpractice.

It has nothing to do with withholding of records.

That you know the date of the injury was 7/1/24, you have one year from that date. There are no extensions.

I suspect malpractice has taken place but I have not yet uncovered all the evidence

Suspect?

What makes you suspect malpractice?

In other words what medical injury did you allegedly suffer because of something the doctor did or did not do?

 

[zddoodah]

I plan on filing a medical malpractice suit. The date of injury was 7/1/24. Does this mean I need to inform the provider of my intent to sue by 4/1/25 (so that I can file the claim before the one year statute in CA)? . . . can it be fairly generic or, ideally, should I have already retained a lawyer by then and have him write the letter of intent?

"No action based upon [a] health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action." Cal. Civ Proc. Code section 364(a) (all statutory references are to the Code of Civil Procedure).

"No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered." Section 364(b).

"If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice." Section 364(d).

If these provisions don't answer your questions, then the answer to this question:

is it something that a layperson can do?

Is that you are not competent to handle this yourself. That said, you absolutely should seek to retain the services of an attorney.

Are there any templates for informing the provider

I'm confident that all California medmal attorneys have templates.

I know that there is an extension of the statute for concealment. . . . Is there any extension of the statute for concealment if I'm not able to find an attorney to take the case because I haven't yet gathered sufficient evidence even if I knew that harm has occurred?

"In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person." Section 340.5.

No, you don't know. Because that's not how it works.

Section 340.5 says otherwise.


P.S. For whatever reason, I was unable to embed links to the statutes, but they're easy to google.

 

[Mark_A]

I plan on filing a medical malpractice suit.

Talking to a personal injury lawyer who specializes in medical malpractice will let you know if you have a good case or not, because they almost always work on contingency and won't take a case unless there is a good chance for a settlement out of court, or winning a lawsuit. They will take a pretty big chunk of the settlement (typical contingency fee in California for personal injury lawyers ranges from 33% to 40% of the total recovery), but this is usually not something that can be done by yourself, unless the amount of the claim falls under the limit for Small Claims Court (I believe $12,500 limit in California).

 

[Tax Counsel]

...but this is usually not something that can be done by yourself, unless the amount of the claim falls under the limit for Small Claims Court (I believe $12,500 limit in California).

Even if the damages are less than $12,500 or the plaintiff is willing to limit his/her claim to that amount pursuing a malpractice claim on your own is very difficult to do successfully and actually come out ahead financially. The plaintiff will need an expert witness to testify regarding the injury, how it occurred, and why that falls below the standard of care. Expert witnesses are not cheap. The plaintiff will also need to know how to properly examine the witness to get the information needed to win before the court. The doctor will have an easier time of that because he already has extensive medical knowledge and will have also have the advantage of knowing a good doctor to serve as his expert witness. If the plaintiff can't paint a clear picture of malpractice for the judge he will lose. The doctor doesn't have to prove malpractice didn't happen, only cast enough doubt on the plaintiff's claim that the judge won't be satisfied that the plaintiff's burden was met.

CA small claims courts do provide a two page summary of what is required for a medical malpractice case for small claims plaintiffs. That doesn't tell you all you need to know, but it's a start.

 

[Mark_A]

Even if the damages are less than $12,500 or the plaintiff is willing to limit his/her claim to that amount pursuing a malpractice claim on your own is very difficult to do successfully and actually come out ahead financially. The plaintiff will need an expert witness to testify regarding the injury, how it occurred, and why that falls below the standard of care. Expert witnesses are not cheap. The plaintiff will also need to know how to properly examine the witness to get the information needed to win before the court. The doctor will have an easier time of that because he already has extensive medical knowledge and will have also have the advantage of knowing a good doctor to serve as his expert witness. If the plaintiff can't paint a clear picture of malpractice for the judge he will lose. The doctor doesn't have to prove malpractice didn't happen, only cast enough doubt on the plaintiff's claim that the judge won't be satisfied that the plaintiff's burden was met.

CA small claims courts do provide a two page summary of what is required for a medical malpractice case for small claims plaintiffs. That doesn't tell you all you need to know, but it's a start.

I agree that medical malpractice claims are complicated and best to get a personal injury lawyer that specializes in those kinds of claims. But if the claim is small enough for Small Claims Court, then no lawyer will take it on contingency, and it may be too expensive to pay a lawyer by the hour. The rules of Small Claims Court are usually more informal and hopefully if one files a credible case in Small Claims Court the insurance company would just settle out of court, since it is costly for them to pay a lawyer to defend their insured party.

 

[adjusterjack]

Even if the damages are less than $12,500 or the plaintiff is willing to limit his/her claim to that amount pursuing a malpractice claim on your own is very difficult to do successfully and actually come out ahead financially. The plaintiff will need an expert witness to testify regarding the injury, how it occurred, and why that falls below the standard of care. Expert witnesses are not cheap. The plaintiff will also need to know how to properly examine the witness to get the information needed to win before the court.

Maybe not. No guarantee here but a med mal insurance carrier is likely to settle a small claims lawsuit in a heartbeat with go-away money.

 

[zddoodah]

Even if the damages are less than $12,500 or the plaintiff is willing to limit his/her claim to that amount pursuing a malpractice claim on your own is very difficult to do successfully and actually come out ahead financially. The plaintiff will need an expert witness to testify regarding the injury, how it occurred, and why that falls below the standard of care. Expert witnesses are not cheap. The plaintiff will also need to know how to properly examine the witness to get the information needed to win before the court.

But if the claim is small enough for Small Claims Court, then no lawyer will take it on contingency, and it may be too expensive to pay a lawyer by the hour. . . . if one files a credible case in Small Claims Court the insurance company would just settle out of court, since it is costly for them to pay a lawyer to defend their insured party.

Lawyers are not permitted in small claims court in California, and there is no witness examination (or, more accurately, the judge handles witness examination). A small claims trial in California looks a lot like an episode of People's Court or Judge Judy.

 

[Mark_A]

Lawyers are not permitted in small claims court in California, and there is no witness examination (or, more accurately, the judge handles witness examination). A small claims trial in California looks a lot like an episode of People's Court or Judge Judy.

Wapner was the only decent judge on People's Court. He would listen to all the testimony, and then excuse himself while he checked the statutory and case law in his chambers, and then returned to issue his decision. Judge Judy decides the case during the first 30 seconds of the trial, based on whether she likes the plaintiff or defendant, and rarely decides cased based on what the law is.

 

[Zigner]

Wapner was the only decent judge on People's Court. He would listen to all the testimony, and then excuse himself while he checked the statutory and case law in his chambers, and then returned to issue his decision. Judge Judy decides the case during the first 30 seconds of the trial, based on whether she likes the plaintiff or defendant, and rarely decides cased based on what the law is.

You're joking, right? You seem to put a lot more "reality" into those shows than is appropriate.

 

[Mark_A]

You're joking, right? You seem to put a lot more "reality" into those shows than is appropriate.

No, I am not joking. Wapner was the original judge on People's Court and he took his job seriously. His rulings were according to the law. Judge Judy (and most others) are just doing show business and are terrible judges.

 

[Zigner]

No, I am not joking. Wapner was the original judge on People's Court and he took his job seriously. His rulings were according to the law. Judge Judy (and most others) are just doing show business and are terrible judges.

You actually think Wapner was sitting there doing research? SMH

 

[Mark_A]

You actually think Wapner was sitting there doing research? SMH

Why do you comment when you don't know what you are talking about? After all the testimony, he excused himself and went into his chambers, and emerged some time later with the decision. When he returned to deliver the verdict, he cited the statutory law, or sometimes case law, while explaining his decision. I don't think you even saw his shows.

 

[Zigner]

Why do you comment when you don't know what you are talking about? After all the testimony, he excused himself and went into his chambers, and emerged some time later with the decision. When he returned to deliver the verdict, he cited the statutory law, or sometimes case law, while explaining his decision. I don't think you even saw his shows.

You DO understand that those shows have staff members, right? You DO understand that then, as now, the judges are acting, right?

 

[zddoodah]

Wapner was the only decent judge on People's Court. He would listen to all the testimony, and then excuse himself while he checked the statutory and case law in his chambers, and then returned to issue his decision. Judge Judy decides the case during the first 30 seconds of the trial, based on whether she likes the plaintiff or defendant, and rarely decides cased based on what the law is.

I seriously doubt you have been on the set during the production of these shows and, as such, have any idea whether any of the arbitrators/judges do any amount of legal research. That said, the cases that show up on the TV "court" shows are simple contract, tort and landlord/tenant issues that would almost never require legal research.

Wapner was the original judge on People's Court and he took his job seriously.

Please cite your evidence to support this and your implication that other TV judges don't.

After all the testimony, he excused himself and went into his chambers the show cut and went to a commercial break, and emerged some time later with the decision.

FTFY

The court TV shows, including TPC, are for entertainment. While the cases are real, the rulings aren't (including TPC when Wapner hosted). It's binding arbitration, and the loser doesn't pay the winner. The show pays the winner, and both parties get an appearance fee.

When he returned to deliver the verdict, he cited the statutory law, or sometimes case law, while explaining his decision. I don't think you even saw his shows.

I have doubts that he ever cited case law, but I won't pretend that I've seen every episode. As for statutory law, anyone can cite Cal. Civ. Code 1950.5 as it pertains to a security deposit refund case. It doesn't mean the actual "judge" in the case went back and did legal research.

 

[Mark_A]

I seriously doubt you have been on the set during the production of these shows and, as such, have any idea whether any of the arbitrators/judges do any amount of legal research. That said, the cases that show up on the TV "court" shows are simple contract, tort and landlord/tenant issues that would almost never require legal research.

Please cite your evidence to support this and your implication that other TV judges don't.

FTFY

The court TV shows, including TPC, are for entertainment. While the cases are real, the rulings aren't (including TPC when Wapner hosted). It's binding arbitration, and the loser doesn't pay the winner. The show pays the winner, and both parties get an appearance fee.

I have doubts that he ever cited case law, but I won't pretend that I've seen every episode. As for statutory law, anyone can cite Cal. Civ. Code 1950.5 as it pertains to a security deposit refund case. It doesn't mean the actual "judge" in the case went back and did legal research.

Wapner was a retired Superior Court Judge, and he took his job on People's Court seriously in terms of the law and how he conducted the proceedings. Wapner even demanded that they hire a real bailiff that he worked with previously (Rusty). He almost always went back to his chambers after all the testimony, and then reappeared with his decision, and he did cite statutory law and case law where applicable. Maybe a few of the other judges also occasionally went back to their chambers before announcing the decision, but not to my recollection. Judge Judy clearly just issues judgements on who she likes and doesn't like, and the law has very little to do with her decisions. Before Wapner died he made some very uncomplimentary remarks about Judge Judy.

You keep saying "these shows" and I am trying to explain that Wapner was different that those who followed him. Either you didn't watch his shows, or maybe you were in diapers (or not born yet) when he was on the air.

I don't know what you mean by the ruling aren't real. Yes, the litigants agreed to settle the case in People's Court, but when Wapner was judge he conducted it exactly like he would have (and did) when he was a real judge. What is the difference? I am not sure how it works now, but the loser did pay the winner when Wapner was judge, although both sides got paid for appearing on the show and that obviously softened the blow for the loser.

Please provide proof that you actually watched Wapner, because I don't believe you and I will not just accept your word for it.

 

[Mark_A]

You DO understand that those shows have staff members, right? You DO understand that then, as now, the judges are acting, right?

All I can say is that on another legal forum, you said my claim that I was traveling at 21 mph at the time of my auto accident was not credible based on your viewing of my dashcam video. But the dashcam video displayed my speed (calculated by the built-in GPS) very clearly for anyone to see.

You also claimed I "was focused on oncoming traffic and the still-red light so that s/he could get a jump on that signal as soon as it changed." Your claim that because I was watching out for oncoming traffic before making a left hand turn, that I was trying to get a "jump" on anything was ridiculous.

So I find virtually all of your comments to be trolling, argumentative, and lacking any credibility.

 

[Zigner]

All I can say is that on another legal forum, you said my claim that I was traveling at 21 mph at the time of my auto accident was not credible based on your viewing of my dashcam video. But the dashcam video displayed my speed (calculated by the built-in GPS) very clearly for anyone to see.

You also claimed I "was focused on oncoming traffic and the still-red light so that s/he could get a jump on that signal as soon as it changed." Your claim that because I was watching out for oncoming traffic before making a left hand turn, that I was trying to get a "jump" on anything was ridiculous.

So I find virtually all of your comments to be trolling, argumentative, and lacking any credibility.

Oh, you're THAT guy. smh