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.
- Determine who the potential defendant doctors and entities are:
Individual medical professional
- iii.Psychologist or Psychiatrist
- i.Employee Physician/Doctors
- 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].
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
- 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.
Consider MICRA limitations on contingency fees [California
Bus. & Prof. Code, § 6146] and on damages [California
Civil Code, § 3333.1].
- Seek expert witnesses to testify as to standards of care, causation, and damages.
- Prior to service of Complaint, consider the demand to settle.
- File Complaint or demand arbitration (if valid).