California Medical Malpractice Attorney-Client Checklist

1. Obtain your medical records from your medical providers using an appropriate release form. If submitted by an attorney, the form must comply with California Civil Code, § 56.11.

2. Determine who the potential defendant doctors and entities are:

• Individual medical professional
  • i.Physician/Doctor
  • ii.Dentist
  • iii.Psychologist or Psychiatrist
• Hospital
  • i.Employee Physician/Doctors
  • ii.Nurses
  • iii.Technicians
• Medical group
• Public entity

3. Determine the statute of limitations

• If a public entity, commence the action within 6 months [California Government Code , § 945.6].
• If not a public entity, 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 [California Civ. Proc. Code, §340.5].
• Serve health care providers notice of intent to bring action 90 days prior to commencing the action [California Civ. Proc. Code, §364].

4. Determine theories of liability
   • Medical Negligence – When the defendant breached the applicable standard of care in his or her treatment of the patient, and that breach was a substantial factor in causing the patient’s injury and damages.
   • Medical Battery- When the defendant performed a medical procedure without the patient’s consent (or performed a procedure not agreed to), the patient is harmed, and defendant was a substantial factor in causing plaintiff’s harm.
   • Lack of Informed Consent- When a doctor performs a procedure on a patient without first obtaining his or her informed consent by failing to disclose potential risks and alternatives to the procedure that a reasonable person would not have agreed to, and the patient was then harmed by the result or risk that should have been explained.

5. Consider MICRA limitations on contingency fees [California Bus. & Prof. Code, § 6146] and on damages [California Civil Code, § 3333.1].

6. Seek expert witnesses to testify as to standards of care, causation, and damages.

7. Prior to service of Complaint, consider the demand to settle.

8. File Complaint or demand arbitration (if valid).