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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 101755
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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CPS took my son away from me and his mother (from whom I am

Resolved Question:

CPS took my son away from me and his mother (from whom I am estranged and seeking a divorce.) The mother was examined by a Psy D (psychologist and CPS based their actions toward the mother on the doctor's diagnosis.7 months into this case, my lawyer discovered, by submitting the original doctor's report to a forensic psychologist I hired, that the original report was incorrectly filled out, incomplete, and provided no diagnosis or recommendations. The forensic psychologist I hired and one hired by the state for the mother, who is now diagnosed with a personality disorder and is indigent, both submitted reports that criticized the original incomplete and mishandled report. That original report caused CPS to mishandle my son's case and put him in danger by placing him with his mother. Can I bring a medical malpractice suit against the original doctor for her terrible work, which resulted in possible harm to my son?
Submitted: 5 years ago.
Category: Family Law
Expert:  Ely replied 5 years ago.
Hello and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow ups and my replies because I am typing out my answer, or taking a quick break.

I am sorry for your ongoing situation. In sum, the answer is yes. The elements of a cause of action in tort for professional negligence are:

(1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise;
(2) a breach of that duty;
(3) a proximate causal connection between the negligent conduct and the resulting injury; and
(4) actual loss or damage resulting from the professional's negligence.

(Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal. Rptr. 849, 491 P.2d 433].)

A plaintiff in a case of medical malpractice may recover damages for emotional distress. (See Marlene F., supra, 48 Cal.3d at pp. 591, fn. 6 (lead opn. of Arguelles, J.), 599 (conc. opn. of Eagleson, J.); Molien, supra, 27 Cal.3d at pp. 930-931; 2 Louisell & Williams, Medical Malpractice, supra, at ¶ 18.11.)

Said duty is the same be it in a court room or an examining room, and the injury may be physical, or one that results in an unfair action against Plaintiff such as loss of custody or severe disadvantage in Court.

So yes, you do have a claim. However, simply because you have an expert willing to testify to it does not make it a slam dunk and you will need to prove it in Court if this goes to trial. Finally, you have one year to bring the action and three years total at the most if you have reasonably discovered it only a year later after the injury.

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Customer: replied 5 years ago.
Just a few more questions to clarify and make a plan for how to proceed:

The reports (the incorrect one supplied by the doctor I'd like to sue, the forensic report by the doctor I hired and the forensic report by the mother's expert) have all been filed in a child dependency case. This means that no one can have access to them and they are sealed. Can an attorney get access to these reports to file this suit?

Do I need Medical Malpractice attorney or a different kind of lawyer?

Can I find out on-line if the doctor has had malpractice suits filed against her in the past?
Expert:  Ely replied 5 years ago.
Of course.

The reports (the incorrect one supplied by the doctor I'd like to sue, the forensic report by the doctor I hired and the forensic report by the mother's expert) have all been filed in a child dependency case. This means that no one can have access to them and they are sealed. Can an attorney get access to these reports to file this suit?

Yes. They are sealed from the general public. However, in a lawsuit, a subpoena duces tecum is enough to get said documents.

Do I need Medical Malpractice attorney or a different kind of lawyer?

A medical malpractice or a general malpractice attorney is best. There really is no other sub-field here. May I recommend:

http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

The attorneys are vetted and qualified and the service is free.

Can I find out on-line if the doctor has had malpractice suits filed against her in the past?

Assuming that this is an MD doctor, you can look up some information but not all. See here for what you can see, what you cannot, and how to do so:

http://www.mbc.ca.gov/lookup.html

Civil searches of any lawsuits filed against an individual would be done on the county level and each county has its own matrix, some which may not be available online or for the general public.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

http://www.justanswer.com/law/expert-elyJD/
Customer: replied 5 years ago.
OK - just a bit more info!

Child Protective Services (Health and Human Services) declared a number of times that the original report said the mother was stable and they were basing their actions on that report. Their guidelines say that the report MUST be submitted with a diagnosis. It was not. Therefore they are also at fault for placing my child in danger.

CPS is a county agency and I understand that it is very difficult to bring a suit against them for mishandling my son's case. Is this true?

Can my malpractice attorney force the Case-worker and her supervisor to testify in the malpractice suit?
Expert:  Ely replied 5 years ago.
No problem.

Child Protective Services (Health and Human Services) declared a number of times that the original report said the mother was stable and they were basing their actions on that report. Their guidelines say that the report MUST be submitted with a diagnosis. It was not. Therefore they are also at fault for placing my child in danger.

I would stop there - I know where you are headed. CPS enjoys some imminuty. A state agency exercising a governmental function and as such was immune from tort liability. Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211 - Cal: Supreme Court 1961. Government officials are liable for the negligent performance of their ministerial duties but are not liable for their discretionary acts within the scope of their authority. Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211 - Cal: Supreme Court 1961. You'd have to prove negligence of CPS by clear and convincing evidence here, and this would be very hard to do. The jury may see this as a revenge filing, and I would not risk it.

CPS is a county agency and I understand that it is very difficult to bring a suit against them for mishandling my son's case. Is this true?

True - see above.

Can my malpractice attorney force the Case-worker and her supervisor to testify in the malpractice suit?

Yes. By a subpoena ad testificandum, any party with pertinent information may be made to testify in Court.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you need more information, please use the REPLY button and I’d be more than happy to answer to your satisfaction. There is no fee for follow up questions before or after accepting, if we continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated. You can always link to my profile for another question at a later time:

http://www.justanswer.com/law/expert-elyJD/
Customer: replied 5 years ago.
Thank you Ely.
I would like to ask further questions about my divorce - a separate issue. Shall I buy a membership to this service?
Expert:  Ely replied 5 years ago.
Hello,

You can do as you wish, friend. All we experts do is answer questions - we are not in charge of billing - I do not even have access to your billing profile.

You can go to www.justanswer.com/help to get info on what you'd like to do. JustAnswer always has promotions and deals running, so it is up to you if you wish to partake in anything that they offer, or simply go one question at a time.

Good luck, and please don't forget to press ACCEPT - it's the only way I get credit for my time with you.
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