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California’s statute of limitations for medical malpractice lawsuits can be found at California Code of Civil Procedure section 340.5, which states that this kind of case must be brought “within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury,” or within three years of the date of the injury, whichever comes first. So, you have plenty of time at this point to find representation and file suit.
In other words, in California, once you learn that you were harmed by a health care provider’s negligence, you need to get your lawsuit filed in the state’s civil court system within a year of that discovery. And if you don’t discover that you were harmed until after more than three years have passed since the negligent act occurred, you will have lost your right to file a medical malpractice lawsuit in California.
Whether you have a good case is really only something that a medical malpractice lawyer would be able to tell you after reviewing your medical records and speaking with you at length about your situation. Most cases are taken on contingency though, meaning you'd pay no fees or costs unless the lawyer recovered money from you.
And, though I can't do a case analysis for you on this site (that's well beyond the scope of our services), I can tell you what you'll need to prove in order to bring a successful claim.
In order for a plaintiff to successfully bring a medical malpractice claim against a medical professional or hospital, first they must prove four elements:
- The health care provider had a legal obligation to care for the patient. A legal duty exists whenever a health care professional takes care of a patient. Thus, you've already established that.
- That duty was breached and the health care provider failed to provide the standard level of care. Surgery, like almost all level of medical care, comes with risk. Thus, it's not enough that the first surgery wasn't successful. The doctor's care must have fallen below the standard of doctors with similar treatment and training.
- The breach was the proximate cause of injury. Even if the doctor's care wasn't to the standard of other similar doctors, if it didn't cause further problems for you (in other words, the surgery simply wasn't a success through no fault of the doctor) then there is no liability.
- There must be damage (losses) in order for there to be a basis for the claim. Assuming you can establish the other elements, most people can prove damages -pain and suffering, more surgery, additional medical costs, lost wages, etc.
In medical malpractice cases, the burden of proof is on the patient to prove these four elements, and in most cases it's necessary to bring in witnesses to provide expert testimony. Expert witnesses must be qualified as an expert in the medical malpractice case, meaning that person must have sufficient knowledge, education, training and experience regarding the specific issue being addressed before the court. Only a doctor, for example, could testify as to what the standard of care is for your procedure and a doctor performing it, and whether the treatment received was not to the standard.
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